Upholding Preference Vindicates The Will Of Congress

By Rail Passengers Staff

The Rail Passengers Association on Wednesday argued to the Surface Transportation Board – the Federal economic regulator of railroads – that any decision in its Union Pacific proceeding that would weaken passenger priority over freight would thwart the will of dozens of Congresses dating back half a century.

In its brief, filed at the invitation of the STB as a “non-party reply” to the briefs of the parties in the two-year-old late-trains case between Union Pacific and Amtrak over chronic Sunset Limited delays, your Association asked the Board – again – to hold UP accountable for consistently and repeatedly violating Amtrak’s 52-year-old legal right to priority over freight traffic.

[Click here, here, and here for more detailed reports on the proceeding, its current status, and its purposes.]

For decades, the American people have consistently elected enough members of Congress who support passenger rail to ensure Amtrak’s survival and funding. And for the past decade, Americans have consistently elected members of Congress who support – and have funded – actually expanding passenger rail, strengthening Amtrak’s long-distance service, and protecting the legal rights of America’s passengers to be on time. The core of the Association’s argument before the Board is that those Americans deserve to have their votes fulfilled through the STB holding Union Pacific accountable.

“Our members, and the travelling public at large, pay their fares based upon a reasonable expectation that they will arrive at or close to their scheduled arrival time,” the Association said in its non-party reply. “Congress set out that expectation in the Amtrak Improvement Act of 1973, Pub. L. No. 93-146, § 10(2), 87 Stat. 548, 552. Significantly, during the past 50 years since passage, 25 successive Congresses have maintained that provision, reaffirming again and again that the travelling public should expect best efforts at on-time performance through Amtrak’s legal right to ‘preference over freight transportation in using a rail line, junction, or crossing’ 49 U.S.C. § 24308(c).”

Since 1970, Congress has held dozens of hearings, passed at least fourteen laws, and appropriated many billions of dollars, all expressing a consistent theme: that passenger rail is a critical part of maintaining a balanced transportation ecosystem in the United States and ensuring prosperity for long-neglected communities in America’s heartland, and on-time performance underpins the success of all of that.

Unlike many other controversies involving regulators and the regulated, in this instance what Congress wants and what the statute calls for are both exquisitely clear.

“Congress has determined, and reaffirmed 25 times, that railroads hosting Amtrak service must – if there is a choice – prefer passenger trains over freight trains anywhere in the system, whether it’s a rail line, a junction, or a crossing,” the Association said.

Addressing some host railroads’ concerns in their pleadings to the Board that Amtrak was seeking a completely unfettered and absolute right of preference regardless of circumstance, the Association countered that, “while sweeping, that right is not so absolute as to risk materially lessening the quality of freight transportation because there are mechanisms to seek waivers, and because enforcement actions cannot be taken until at least six months of sustained poor performance.”

A few of the railroad filings also hinted in the direction of last year’s Loper Bright Enterprises decision at the Supreme Court, implying that the end of courts’ deference to agency experts in complex technical matters meant that STB now had to sit back and wait for Federal courts to decide what that 50-year-old law means.

But the Association pointed out that not only was Congress unambiguous and detailed in describing preference – a key test under both Chevron and Loper Bright for whether the courts need to step in – but that Congress was also very clear that the Board was empowered to hear applications by host railroads for relief, to investigate how preference is operating in a particular instance and whether a host is complying with the law or the implementing regulations , and to rule on remedies if appropriate.

Congress explicitly made this the STB’s job, in great detail. “To weaken this in any way would be to reject many decades of expressed congressional intent,” the Association told STB.

“The overriding principle at play is Amtrak’s long-standing and codified explicit right to preference over freight when operating its passenger trains on territory controlled by host railroads,” your Association said. “Preference is a quid pro quo in exchange for the U.S. taxpayers’ 1970 rescue of the private railroads through absorbing the liabilities of common-carrier passenger service – an arrangement which continues to benefit host railroads financially today and every year that Amtrak operates.”

The Association also reminded the Board of the 1,300-plus stories RPA shared with STB in 2014 and 2016, from passengers whose medical appointments, business trips, or precious time with distant loved ones were disrupted by chronic delays. We noted not only the emotional pain this inflicts, but the physical risk to elderly and disabled passengers, and the unplanned dollar-costs imposed on hapless travelers.

“Congress made a policy choice to ensure viable, affordable, and safe passenger rail options in our nation’s transportation system. But that choice also reflects a commitment to the people who have consistently voted over the past fifty years for members of Congress to reflect those priorities,” the Association said in its filing.

“Delays are about more than spreadsheets and dispatching decisions,” the Association continued. “Real lives are disrupted, real people face unexpected extra costs, disabled and elderly travelers can face discomfort or even physical danger, and once-in-a-lifetime moments are missed forever. The people of the United States want, need, and voted for a regulatory regime that protects freight operations while also ensuring that passenger trains have the best opportunity possible to get where they need to go quickly, safely, and on time.”

A PDF copy of our filing to the docket can be found by clicking here. You can review all of the filings to the case docket, including data submitted by the parties about specific delays and incidents, by clicking here to visit the Surface Transportation Board website. Search for “Dockets,” and then enter the docket NOR 42175.