USA Law and Practice Contributed by: John D. O’Neill, Jr., David B. Horner, Andrej Micovic and Ryan Pedraza, Hunton Andrews Kurth LLP
6.3 Leasing Structures Leasing structures are widely used throughout the transportation sector. Operating leases, finance leas - es and sale-and-leaseback transactions are common for both rail and trucking assets. The freight rail industry has long relied on railcar leas - ing companies and equipment lessors to provide roll - ing stock. Similar arrangements are prevalent in the trucking sector, where carriers frequently lease vehi - cles rather than purchase them outright. By contrast, public rolling stock companies of the type commonly seen in certain European jurisdictions play a relatively limited role in the United States. Rolling stock ownership structures tend to be more decen - tralised and commercially driven. 6.4 Green and Sustainable Financing Green and sustainable financing has become increas - ingly important in transportation infrastructure pro - jects. Investors, lenders and public agencies are placing greater emphasis on sustainability objectives, emissions reductions and climate resilience. Green bonds, sustainability-linked loans and ESG- focused financing products are increasingly utilised for transportation projects involving electrification, public transit improvements, charging infrastructure and emissions reduction initiatives. Rail projects fre - quently benefit from sustainability-focused financing due to rail’s comparatively favourable emissions pro - file. Although sustainable financing remains a growing segment rather than the dominant source of transpor - tation funding, environmental considerations increas - ingly influence financing structures, investor participa - tion and project evaluation criteria. 6.5 Government Support and Risk Allocation Government support plays a central role in many transportation projects, particularly where user rev - enues alone are insufficient to support project financ - ing. Availability-payment structures are widely used in US transportation P3 projects. Under these arrange -
ments, the public authority makes periodic payments to the concessionaire based on facility availability and performance rather than traffic volumes. Examples include New York’s Goethals Bridge project, Colo - rado’s Denver Eagle project and Maryland’s Purple Line project. Risk allocation varies depending on project structure. Construction risk, operating risk and lifecycle mainte - nance risk are commonly transferred to private con - cessionaires. Demand and revenue risk may either be transferred to the private sector through toll con - cessions or retained by the public authority through availability-payment models. The allocation of revenue risk remains one of the principal distinctions between major US transportation P3 structures. Transportation transactions are subject to gener - ally applicable US antitrust laws and merger control requirements. Significant acquisitions involving trans - portation operators, infrastructure owners or logistics companies may require review under the Hart-Scott- Rodino Act by the US Department of Justice or the Federal Trade Commission. Rail mergers are subject to an additional layer of review by the STB. The STB evaluates rail transactions under standards that consider competition, service impacts and broader public interest considerations. Given the strategic importance of transportation infra - structure, large transactions frequently receive sub - stantial regulatory scrutiny, particularly where consoli - dation may reduce competition or affect critical freight corridors. 7.2 Access and Abuse of Dominance Access disputes and allegations of anti-competitive conduct are addressed through a combination of anti - trust law, sector-specific regulation and contractual rights. 7. Competition and Antitrust 7.1 Merger Control In the rail sector, the STB possesses authority to address certain competitive concerns involving rail
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