Gateway chess game stalls Batory FRA confirmation

Confirmation of career-railroader Ronald L. Batory as Federal Railroad Administrator has been delayed by New Jersey and New York’s Senate delegation—Minority Leader Charles Schumer (D-N.Y.), Kirsten Gillibrand ((D-N.Y.), Cory Booker (D-N.J.) and Robert Menendez (D-N.J.)—over what they say is concern that the federal government will not provide funding for the Gateway Project.

Batory, whose nomination as the nation’s top railroad safety regulator was advanced by the Senate Commerce Committee on Aug. 2, was in the queue to be confirmed by the entire Senate on Aug. 3, along with two other nominees to top U.S. Department of Transportation posts: Adam J. Sullivan as Assistant Secretary for Governmental Affairs, and Derek Kan as Undersecretary of Transportation Policy. The four Democratic Senators stalled the confirmation votes for the three—even as the Senate confirmed numerous other nominees to serve in various federal agencies before adjourning for the August recess. Among the confirmations was Rear Admiral Mark Buzby, former head of the Military Sealift Command, as MARAD (United States Maritime Administration) Administrator. Buzby and Batory were part of the Aug. 2 Senate Commerce Committee confirmation hearings.

As such, the FRA will remain without leadership at least until the Senate returns from recess in September. Batory’s confirmation does not appear to be in jeopardy, as there were no formal, procedural protests filed against him. He, along with Sullivan and Kan, have unwillingly become pawns in a game of political chess, an unfortunate circumstance, to say the least, when safety is involved.

The four Senators, according to a report in The Wall Street Journal, “say they delayed the nominees out of concern that the [Trump] Administration is uninterested in pushing ahead with [Gateway]—and might ultimately decline to provide funding for a project seen as vital to the economic future of the Northeast.”

An unnamed USDOT official told the WSJ that the Department has expedited procedural matters, among them issuing an environmental review for the tunnel portion of Gateway last month. On Aug. 3, the Federal Transit Administration (FTA) issued a Record of Decision that formally adopts the FRA’s Environmental Impact Statement (EIS) for the Portal Bridge Project portion of Gateway.

“DOT has proceeded appropriately, and it is counterproductive to deprive DOT of highly qualified, noncontroversial nominees, who are needed to accomplish the Department’s work on behalf of the American people, for reasons having nothing whatever to do with their merits,” a DOT spokesperson told the WSJ Aug. 4.

Not only is Batory non-controversial, he’s the best-qualified person to be Federal Railroad Administrator in a very long time, perhaps in the agency’s history.

Back to politics as usual: USDOT has asked sponsors of projects like Gateway to devise their own financing proposals as the Trump Administration, with USDOT, works on a highly touted $1 trillion “great national infrastructure program” that may be unveiled in the third quarter, but for which funding is unclear.

Senate Majority Leader Mitch McConnell (R-Ky.), whose wife is U.S. DOT Secretary Elaine Chao, has expressed skepticism about the Administration’s plan, particularly one that would combine infrastructure funding with an overhaul of federal income tax. He is also reportedly vehemently opposed to any legislation that would require him to compromise with Democrats, and has suggested a more modest Republican-only infrastructure package added onto a budget reconciliation bill that would require only 51 Republican votes to pass.

I’ll bet this makes for some interesting pillow talk between McConnell and Chao. It has overtones of the Reagan Administration, which tried to zero-budget Amtrak. Wrote Railway Age Capitol Hill Contributing Editor Frank Wilner in June:

“This situation is oddly familiar, in that it’s similar to that of former Senator Bob Dole and his wife Elizabeth Dole, who was Transportation Secretary under President Ronald Reagan while her husband was Chair of the Senate Finance Committee in the 1980s. Dole was trashing Amtrak while Elizabeth was supporting it.”

An excerpt from Wilner’s book, Amtrak: Past, Present and Future: “Sen. Robert Dole (R-Kans.) added levity to the debate [on Amtrak subsidies] after his wife, Elizabeth, became President Reagan’s Transportation Secretary. ‘My wife wakes up during the night saying, ‘Amtrak, Amtrak.’ That’s her private view. Publicly, she wants to eliminate it.’”

Back to the present: Gateway is expected to cost around $29 billion. The Obama Administration in 2015 said the federal government would pay 50% of the cost. So far, the Trump Administration has provided no reassurance that it would follow through on the previous Administration’s commitment (no surprise there). Last month, USDOT withdrew from the Gateway Development Corp. (GDC), which was established to leverage billions in federal grant and loan funding. GDC included the states of New York and New Jersey, the USDOT and Amtrak as members and was founded and chaired by the Port Authority of New York & New Jersey, with strong support from New York Democratic Governor Andrew Cuomo, New Jersey Republican Governor Chris Christie, and the four Senators (with Schumer and Booker playing very public roles).

Politics as usual, you say? People—qualified, experienced people—turned into chess pieces? Happens all the time, right? Yes—but.

In this case, Schumer and Booker (the former Mayor of Newark, my home town, who did a decent job running it) and their Senate colleagues could very well be compromising railroad safety, in a region that transports hundreds of thousands of people every day.

According to Wilner, “Sen. Booker, a member of the Senate Commerce Committee, failed to appear at Batory’s committee-level confirmation hearing. Nor did Booker cast a ‘no’ voice-vote at the markup hearing Aug. 2 at which Batory received a voice-voted recommendation for confirmation by the entire Senate. It was Senate Minority Leader Schumer, however, who utilized senatorial courtesy to ask successfully that Senate Majority Leader McConnell ‘pull’ from consideration for confirmation on Aug. 3 the DOT-nominee names, including Batory’s, when the entire Senate confirmed some 65 other nominees by voice vote.”

For the moment, forget Sullivan and Kan. Their positions at USDOT would be largely strategic in nature. The FRA, on the other hand, deals with day-to-day tactical issues directly tied to safety. Blocking confirmation of the nation’s top safety regulator—in this case Ron Batory, a career railroader with 46 years of operations and management experience—is just plain dumb, even dangerous. Not a good business decision, either.

Schumer in particular has been the first to start preaching to the high heavens and the media about safety whenever there’s a passenger train accident in his area of jurisdiction. In the past few years, there have been several involving Metro-North, NJ Transit and Amtrak. He’s the first politician to convene a press conference and declare that “PTC could have prevented this from happening,” whether or not he is being factually or technically correct (and he usually isn’t).

Now, he and his Senate colleagues have blocked confirmation of the Federal Railroad Administrator, the leader of the agency with direct responsibility for seeing that PTC is functional by the Dec. 31, 2018 deadline. The FRA is also the conduit for PTC-related grants as well as a lot of important safety-related R&D.

If there’s God forbid another passenger train accident that claims lives (and it matters not whether it takes place in New York or Chicago or wherever) while there’s no leadership at the FRA, what will you say then, Sen. Schumer?

This is not to suggest that the presence of a highly qualified leader at the FRA who knows more than a thing or two about safety and operations will prevent accidents from happening. Not at all.

However, it certainly won’t hurt.

Gateway is important. It needs to be funded and built, sooner than later. But not at the expense of safety.

Think about that, Senators, when you play political chess.