Happening Now

Coalition Files “Friend of Court” Brief Defending Passenger Rights

September 24, 2014

Release #14-15a

September 24, 2014

Sean Jeans-Gail, NARP – 202-408-8362

Coalition Files “Friend of Court” Brief Defending Passenger Rights

Confronts Increasingly Serious Delays Afflicting America’s National Train Network

Washington, D.C.—The National Association of Railroad Passengers, the Environmental Law and Policy Center, All Aboard Ohio, and Virginians for High Speed Rail have filed an amicus curiae brief with the U.S. Supreme Court in a case that could prove pivotal in eliminating delays that are leaving passengers stopped on the track and stranded at the station.

The brief argues for the reversal of a judgment issued by the U.S. Court of Appeals - D.C. Circuit. That judgment struck down a provision of the 2008 rail reauthorization bill that instructed the Federal Railroad Administration and Amtrak—consulting with the Surface Transportation Board, freight railroads, states, rail labor, and rail passenger organizations—to develop metrics and minimum standards for measuring Amtrak passenger train performance and service quality. A decision in this case has taken on new urgency, following the U.S. House’s introduction of the Passenger Rail Reform and Investment Act of 2014 (H.R. 5449), which sidesteps the serious on-time performance issues afflicting train passengers across the U.S. and crippling rail growth just at the moment when Americans are embracing rail travel in record numbers.

The amicus, or friend-of-the-court brief, lays out an argument structured around two central facts:

I.) “The court of appeals based its decision on two separate grounds: (1) an erroneous finding that Amtrak is a private entity and (2) a complete disregard of the factors indicating sufficient governmental control over the development and implementation of the metrics and standards.”

In order to achieve the national goal of maintaining a balanced transportation system in the U.S., Congress created Amtrak to preserve intercity train service in the U.S. at a time when the passenger rail sector was in steep decline. Consequently, Amtrak has been granted special statutory rights throughout its history, such as track access and preferential dispatching. As early as 1978, Congress passed a law declaring that, while Amtrak should be managed as a business, it is not in reality a for-profit corporation. Rather, it is a government corporation that provides a public service—as defined by Congress—that uses ticket revenue and business partnerships to minimize the need for public funding.

In the development of the metrics and standards in question, the FRA solicited input from a wide array of stakeholders through the Federal Register. The FRA fully considered these comments, including those made by the freight railroads, before issuing a final version of the metrics and standards in May 2010. These metrics are binding only to Amtrak, do not supplant operating agreements between Amtrak and the freight railroads, and do not serve as a basis to impose sanctions against host railroads. The metrics merely provide a trigger for an investigation by the Surface Transportation Board when certain conditions aren’t met, most significantly on-time performance. The STB only awards damages and other relief if, as a result of their investigation, they find that freight railroads have failed to live up to their statutory obligation to provide preference to Amtrak trains over freight trains—an obligation originating in a 1973 law that not even the freight railroads dispute.

II.) “As a matter of public policy, the decision by the court of appeals, which invalidates Amtrak’s on-time performance measures, thwarts the intent of Congress and threatens the future of passenger rail service in the United States.”

Under the metrics and standards implemented by the 2008 rail reauthorization law, Amtrak was able to achieve a 2012 on-time performance rate of 83 percent nationwide, and 71 percent for long distance trains. This level of on-time performance played a key part in allowing Amtrak to sustain its explosive ridership growth, which has led to ridership records in 10 of the past 11 years.

Since the metrics were struck down by the court of appeals, reported freight interference incidents nearly tripled, and Amtrak’s on-time performance plummeted to 42 percent. The long distance trains have been the most hard-hit; in a particularly extreme case, the on-time performance of the Capitol Limited plummeted to 1.6% in July. Amtrak reported in April 2014 that, in response to these skyrocketing delays, ridership and revenue had fallen by 15% year over year to date.

“These crippling delays directly threaten a transportation choice that Americans have said they want and that tens of millions of Americans rely on every year. Rail links are a public good, and the reason Congress established Amtrak in the first place. It’s no coincidence that these delays followed hard on the heels of the DC appeals court ruling, and it’s also no coincidence that the result has unraveled a decade of record ridership. It’s ironic that these delays hurt Amtrak’s bottom line, increasing its dependence on public subsidies, even as those who back the appeals court ruling decry Amtrak’s business performance,” said NARP President Jim Mathews. “NARP would like to thank our partners in this process—especially the team at ELPC—for their hard work in laying out an airtight argument for why the judgment of the court of appeals must be reversed.”

Read the brief in its entirety.

About the National Association of Railroad Passengers
The National Association of Railroad Passengers (“NARP”) is the largest national membership advocacy organization for train and rail transit passengers consisting of 28,000 individual members nationwide. Since its founding in 1967, NARP has worked to expand the quality and quantity of passenger rail in the United States. NARP’s mission is to work for a modern, customer-focused national passenger train network that provides a travel choice Americans want.

About the Environmental Law and Policy Center
The Environmental Law and Policy Center of the Midwest (“ELPC”) is a not-for-profit public interest environmental legal advocacy organization. Founded in 1993, ELPC develops and leads successful strategic advocacy campaigns to improve environmental quality and protect our natural resources through the advancement of clean air, clean transportation and clean energy policies at the regional and national levels. ELPC has worked to advance intercity passenger rail in the Midwest and nationwide for almost twenty years.

About All Aboard Ohio
Founded in 1973, the Ohio Association of Railroad Passengers (“All Aboard Ohio”) is comprised of citizens, businesses and organizations that advocate for more and better transportation choices in Ohio, including more passenger trains, better public transit and improved rail infrastructure. All Aboard Ohio exists to achieve a modern, consumer-focused, state-wide passenger rail system.

About Virginians for High Speed Rail
Virginians for High Speed Rail (“VHSR”) is a notfor- profit coalition of citizens, localities, economic development agencies, community organizations, and businesses that educate and advocate for the expansion of fast, frequent, and reliable rail service. Founded in 1994, VHSR promotes passenger rail as an energy efficient, cleaner mode of transportation that provides significant economic benefits.