The Pennsylvania Turnpike Commission, in consultation with the Pennsylvania Department of Transportation (PennDOT), is currently studying the viability of building a hyperloop tube that would transverse Pennsylvania from Pittsburgh to Harrisburg to Philadelphia and then northeast toward Scranton/Wilkes-Barre.  Pennsylvania House of Representatives Resolution 1057 authorized the Commonwealth to conduct a study for a hyperloop system that would facilitate the transportation of passengers and freight at speeds approaching 700 miles per hour in pods that move through low-pressure tubes.

House Resolution 1057 found that the concept of the hyperloop, first described by Elon Musk in 2012-2013, may no longer be a hypothetical notion, given the recent work of states and firms to study and develop the necessary technologies.  In 2018, transportation agencies in Ohio and Illinois announced a study involving a hyperloop that would connect Columbus, Ohio to Chicago, Illinois.  House Resolution 1057 explains that Elon Musk desires to build a hyperloop connecting New York City to Washington, D.C. with a projected travel time of 29 minutes with planned stops in Philadelphia and Baltimore.

The construction of a hyperloop raises various land use and regulatory issues.  If the hyperloop were constructed on top of existing Commonwealth land rights on or near the Turnpike and other state roads instead of along or near private property, there would be fewer instances necessitating the use eminent domain.  In addition, municipal ordinances seeking to regulate activity associated with the hyperloop would likely be preempted by the respective state agency authorized to regulate and oversee the hyperloop.  If the hyperloop service would be considered a public utility service regulated by the Public Utility Commission (PUC), such preemption of municipal ordinances is even more likely, given the recent Pennsylvania Supreme Court Case we discussed in our September 30 blog.  In that case, the Court emphasized the PUC’s exclusive jurisdiction over public utilities.

Even if the hyperloop service is not deemed to be a public utility service, other regulatory bodies would still have a role.  The Turnpike or PennDOT would need to oversee construction and permitting while the Department of Environmental Protection would likely require certain permits and evaluate the impact on the environment.  Rates and services would be regulated by the Turnpike or the PUC.

If a hyperloop is also constructed in Ohio with a connection to Pittsburgh, the interstate nature of the service would invoke federal jurisdiction with potential regulation by the U.S. Department of Transportation’s Federal Railroad Administration.  To the extent this new transportation service becomes viable, an entirely new regulatory scheme could develop.  However, the new scheme would likely draw heavily from traditional principles of land use and public utility regulation.

Per House Resolution 1057, the Turnpike Commission and PennDOT are expected to issue a report on their hyperloop study in April 2020.  The results of that report (as well as other studies over the next few years) could reveal whether a hyperloop could ever materialize beyond the realm of theory.  Please feel free to contact any member of the McNees Wallace & Nurick Land Use Group for assistance with any land use or development issues or if you have any questions regarding this post.