Surface Transportation Board Turns Up Pressure for Gulf Coast

by Sean Jeans-Gail | V.P. of Gov't Affairs + Policy

The Surface Transportation Board (STB) hosted a hearing to receive updates from Amtrak, CSX Transportation, Norfolk Southern, and the Port of Mobile on the timeline for restoring passenger rail service to the New Orleans – Mobile corridor along the Gulf Coast. And while the STB was clear that it still prefers a negotiated settlement between the parties, it was equally clear that it was unimpressed with the level of transparency and the speed of implementation on display—particularly given the hundreds of millions of dollars in public funding that has been directed to the project.

Here are some key takeaways from yesterday’s hearing.

STB Lets Parties Know That ‘Clock is Ticking’

STB Chair Marty Oberman opened the Feb. 14th hearing with a joke about his Chicago roots, letting participants know that he wasn’t planning a repeat of the infamous Valentine’s Day Massacre. However, even if he didn’t use a Tommy gun, the Chairman did fire a few shots across the bows of the key stakeholders.

After receiving an update from the three railroads, who all stressed that the negotiations were proceeding in a spirit of comity, Chairman Oberman emphasized that he felt the secret nature of the negotiations was unnecessary, particularly given the significant funding provided by the U.S. Congress via the Consolidated Rail Infrastructure and Safety Improvements (CRISI) Program.

“I'm not sure at this point, since a great deal of information is laid out in the CRISI application and will be part of any agreement, what's so secret about the settlement agreement,” argued Oberman. “I'm not pressing you to reveal anything else that's in it. But I can't figure for the life of me what any of these parties have as an interest in keeping any of the other terms secret. Who's paying what is all in the CRISI grant, that's usually a matter of some concern, people don't want to know what they're paying. I respect that. But we know that. So why is the rest of this confidential?”

He also responded to Amtrak's statements that it is treating this matter as a high priority with some skepticism.

“Amtrak said that it is giving this matter its highest priority—that the matter is receiving the quote ‘highest levels of attention from each party,’” said Oberman. “As [CSX attorny Raymond Atkins] pointed out, this started two years ago in its formal process. I’m wondering how slow this would be if you weren't giving it your highest priority.”

When pressed, CSX's Atkins did allude to a more concrete timeline for completing the 3,000-foot layover track and station platform, which has been a key missing component standing in the way of service restoration—while adding the caveat that this timetable is dependent upon Federal Railroad Administration (FRA) approval of the design work.

“We have schedules that the parties share with each other all the time, and [Amtrak attorney Jessica Ring Amunson] just shared with me—and I'm sure this is right—that currently if everything goes according to plan October [2024] is our… scheduled completion of the station track,” said Atkins.

Oberman closed the hearing with an advisory notice to the parties that the STB will require them to respond in writing within 30 days with a detailed report addressing the Board's question and providing more detail on a construction timeline.

No More Hiding Behind the Environmental Clearance “Two Step”

One of the key issues raised by both Amtrak and CSX was the timing of FRA approval of the 30 percent design package. When the FRA has given a greenlight on the 30 percent design, the parties say they can move ahead to 60 percent design and initiate construction.

With the lengthy delays in securing environmental clearance for infrastructure projects of all stripes, this explanation could easily have been taken at face value.

However, Board Member Patrick Fuchs asked a series of pointed questions to Amtrak’s Amunson that raised serious questions about whether Amtrak or the FRA is the source of these delays.

Fuchs probed Amtrak on whether Categorical Exclusions—a class of actions that are deemed not to have a significant effect on the human environment, and thus would not require a detailed environmental review—are being applied to this project (Categorical Exclusions are frequently applied to existing rights of way, such as the mainline railroad in question between New Orleans and Mobile). When Amtrak’s Amunson affirmed this, Fuchs stated that it was his understanding that Amtrak had not submitted the documentation for Categorical Exclusions on this project to the FRA until only recently

“I just think there's a little bit of a one-two step going on with FRA,” said Fuchs. “‘FRA is giving it a high priority, but they just convened a meeting in December.’ It's sort of this implication that FRA is the holdup. And Jesse, if you don't have information on when you gave FRA your environmental documentation, I'd ask that you refrain from that because—you know, and you just suggested FRA's got a lot of grants. And so either say you think FRA is the delay, or come prepared with what you submitted to FRA, and when. But the whole implication that [the Gulf Coast project for] FRA is a high priority, but then not till ‘this’…I just think it's sort of insulting to the agency that's giving you an awful lot of money.”

Fuchs also highlighted that, after Hurricane Katrina, CSX was able to reconstruct 40 miles of track and six bridges in four months. Fuchs officially requested that Amtrak provide the Board with a timeline for their environmental applications to the FRA to shed light on who was the actual source of delays.

Spotlight on Service Outcome Agreements

The STB also voiced concerns over the status of an operating agreement between Amtrak and the states served—Louisiana, Mississippi, and Alabama—to establish a funding structure for the annual operating costs of the train. Under federal law, all train services under 750 miles in length require states to contribute funding for operations.

Chairman Oberman initially raised the question of an operating agreement, citing local media sources that the lack of an operating agreement between the state of Alabama and Amtrak has been a hurdle to restoring service. He chided Amtrak for having to read about this in the papers, saying this lack of an agreement should’ve been included in the initial filing to the Board.

Board Member Karen Hedlund went further in her own line of questioning, explicitly warning Amtrak against bringing another case against a host railroad before an operations agreement had been agreed to. She also brought her own considerable expertise to bear when evaluating the timeline of negotiations (Hedlund served as Chief Counsel and Deputy Administrator of the Federal Railroad Administration from 2010 to 2014).

“It’s been six months since the FRA announced the CRISI grant,” stated Hedlund. “When I was at FRA… we negotiated a lot of agreements under the Recovery Act in less than six months, with the states, for improvements of Amtrak service. They know how to get this done. Terms and conditions are not new. They're the biggest grantee of the federal government. It just shouldn't take that long to get an agreement in place.”

Finally, Hedlund quoted fellow Chicagoan Daniel Burnham: “Make no little plans; they have no magic to stir men's blood and probably themselves will not be realized. Make big plans; aim high in hope and work, remembering that a noble, logical diagram once recorded will never die, but long after we are gone will be a living thing, asserting itself with ever-growing insistency.”

While applauding the Amtrak vision to double ridership by 2040, she argued that the performance on display in the Gulf Coast restoration would need to be improved to achieve that lofty goal.

“Those who are looking to Amtrak to bring new service may find the progress you have made over the last couple of years in this proceeding to be a little bit disheartening.”