Fifth in a Series: Advocates Speak Out, But It’s Up to Congress

Amtrak is poised to implement the most far-reaching service reductions in its history, Oct. 1. Every long-distance (L-D) train that currently runs every day will be lose more than half of its departures; reduced to running only three times per week. In the past, Amtrak reduced operation of some trains to three or four days a week, the most notable being the infamous Mercer Management cuts of the mid-1990s, which proved that cutting service increased costs by a greater amount than it saved. In other words, restricting the choice of travel days not only inconvenienced customers, but also cost Amtrak more. Despite that experience, Amtrak is about to reduce service on every L-D train, except for the Auto-Train, by 57%.

Amtrak has already killed half of its Florida service, with the Silver Meteor and the Silver Star running on different days, instead of every day. That started on July 6. Amtrak has also terminated its Package Express service, which depends on daily operation to be reliable. It was an inexpensive service to run, because it was only available at staffed stations that took checked baggage, and the shipped items were carried in the baggage car, which was in the consist anyway. Still, Amtrak is willing to give up the revenue that the service generated.

Amtrak is determined to eliminate a majority the L-D train runs it had operated for more than two decades—from 90 weekly departures in each direction to 43; a reduction of more than 52%. Congress has declared that the “national network” is part of Amtrak, so Congress can require Amtrak to keep running the  L-D trains every day, as it has done since 1997. The big question is whether  Congress will act before the cuts are implemented.

A number of advocacy organizations, among them the Rail Passengers’ Association (RPA) and the Rail Users’ Network (RUN), have been urging their members to contact members of Congress as part of the effort to prevent the cuts. So have other state and local organizations, and individual advocates have responded.

The House Transportation & Infrastructure Committee Subcommittee on Railroads, Pipelines and Hazardous Materials held a hearing on Wednesday, Sept. 9. Amtrak President William J. Flynn told Amtrak’s side of the story, while the sole representative for the advocacy community was  RPA CEO Jim Mathews stressed the importance of the L-D trains as an essential service for the residents of much of the nation: “It’s worth taking time to be explicit about what we mean when we say Amtrak is an ‘essential service’ to the communities it connects. For many, it’s easier to understand why a service like the Northeast Corridor (NEC) is necessary; without the 2,200 daily trains and 260 million annual trips the NEC carries, the regions this corridor links would grind to a halt. How can a single daily train to a small town also be accurately described as ‘essential’ to the people it serves? To understand, you have to look at the dearth of transportation options faced by rural and small-town Americans. More than 62 million people live in so-called ‘Flyover Country,’ a quarter of whom are veterans, another quarter senior citizens over the age 65. Intercity rail plays an outsized role in these communities, with almost one-fifth of Amtrak’s passengers traveling to or from a rural station with no access to air service.”

Mathews added that “reducing frequencies across the National Network will “drop a $2 billion bomb on Flyover Country” and also noted that, in the wake of the COVID-19 virus, ridership on the L-D trains is more robust than on the NEC or state-supported trains.

While many advocates weighed in, others have raised structural issues they believe must be addressed before the nation can have a viable passenger train network. Andrew Selden, a Minnesota lawyer and Railway Age contributor, submitted a statement for the United Rail Passenger Alliance: “Amtrak’s response to COVID-19 has been schizophrenic. At the same time it undertook a campaign to clean its stations and trains to reduce the risk of virus propagation, and a masking requirement for employees and customers, it has also prejudiced the mobility needs of the American public by announcing the withdrawal of the majority of its train services in the only part of its business where Americans have returned to using trains in large numbers. It makes no sense to reduce operations in its largest, most productive and most commercially successful business segment, the national system of inter-regional trains, just as demand for these services has rebounded more than anywhere else in the system …

“The inter-regional trains are also Amtrak’s most productive. They have the highest load factors in the entire system, 50%-60% in operations where an annual load factor of 65% is a sold-out condition due to the large number of stations served and the regular turnover of passengers en route; on the western inter-regional trains, it is customary for each seat and berth to turn over on average 2.5 times per trip. The load factor in the NEC by contrast rarely exceeds 50%, and south of Philadelphia and east of New Haven, Amtrak’s NEC trains arithmetically cannot have load factors that exceed 28%—more than two-thirds of their proffered inventory goes unsold, a most unproductive use of scarce federal subsidy capital. In the traffic vacuum in the NEC during COVID-19, these NEC load factors are even lower. The inter-regional trains produce 150% to 200% more revenue passenger-miles than the NEC or state-supported trains.”

Pitting L-D trains against other segments of the Amtrak network may not prove to be a successful advocacy strategy, compared to concentrating on defending the trains whose frequencies are about to be reduced. Still, Selden is far from the only advocate who has criticized Amtrak’s accounting methods. While Flynn and deputy Stephen Gardner defended Amtrak’s accounting in a Rail Group On Air podcast with Railway Age Editor-in-Chief William C. Vantuono, many advocates are not convinced. Without consistent and reliable accounting practices, nobody knows how well or poorly Amtrak or any of its specific trains are performing, or whether or not Amtrak’s claims that cutting trains will save money makes sense. 

The House has passed an appropriations bill that would include money for Amtrak, but there has been no action in the Senate. Amtrak’s riders could get caught in the middle of the politics, because the loss of our trains is only a small component of the nation’s woes that the COVID-19 virus has caused. With people losing their homes and their jobs, businesses failing and the virus still raging, the loss of mobility for a minority of Americans—even though they number in the millions—appears to be one of our less-urgent problems, at least to some people. The House has passed a bill, but the Senate has yet to act. At this writing, the Senate has not acted on further relief for millions of Americans that could help mitigate the potential effects of the burgeoning economic catastrophe caused by the virus, either.

The House Appropriations Committee has released a 276-page bill, H.R. 7616. Its provisions are also included in an omnibus appropriations bill, H.R. 7617. Provisions for grants to Amtrak for the NEC begin at 69, line 3. The base number is $750 million; with $200 million toward capital projects and $75 million for compliance with the Americans with Disabilities Act (ADA). Provisions for grants to the National Network begin at 70, line 15, and the bill calls for grants totaling $1.3 billion for the national network. That amount is 88% of the $1.475 billion that Flynn demanded in his May 24 letter. Could he claim that Congress provided a grant that is $175 million short of his demand and slash the service anyway? More important, 49 U.S. Code §24706(b)(1)(A) allows Amtrak to discontinue service “during the first month of a fiscal year if the authorization of appropriations and the appropriations for Amtrak are not enacted at least 90 days before the beginning of the fiscal year,” a condition the bill as it currently stands cannot meet.

The new fiscal year begins on Oct. 1, so Amtrak is not required to consider itself bound by any conditions in the appropriations bill, unless it also contains language declaring that Amtrak is not permitted to reduce service below prior levels, “notwithstanding” Section 24706(b)(1)(A). Such direction must be clear and unambiguous, or Amtrak will be left with enough wiggle room to implement the cuts.

A further look at the proposed section (at 71, beginning at line 2) demonstrates another ambiguity that Congress should remedy with more-precise language. It concerns the use of funds authorized by the bill: “None of the funds provided under this heading shall be used by Amtrak … to otherwise discontinue, reduce the frequency of, suspend, or substantially alter the route on any portion of such route operated in fiscal year 2018.” Amtrak could argue that the provision at issue only concerns giving notice, since that wording only applies to the route of the Southwest Chief with Positive Train Control, or emergencies caused by track work.
Even assuming that Amtrak does not make such an argument, the specific mention of “funds provided under this heading” could render the provision sufficiently ambiguous that it could not be invoked successfully to force Amtrak to keep the trains running daily and restore the Florida service. Amtrak could argue that it’s not using the “funds provided under this heading” to reduce service, but is instead reducing service to save money and make those funds last longer, while still providing some trains on each route. With its accounting methods, Amtrak could be factually wrong but could still raise the issue of which funds are actually used to cut the service, as a question of fact. That is the sort of dispute that is resolved through litigation.

It also means that Amtrak could implement the cuts, unless the judge hearing the litigation orders Amtrak to keep running the trains every day (and the host railroads to provide slots for them), pending the outcome of a trial and whatever appeals ensue, which could take years. An unambiguous and clear order from Congress to Amtrak to run every train at the fiscal 2018 level of service would remove that doubt, but it should also directly mandate that Amtrak restore the level of Florida service that ran until July 5.

Merely requiring that Amtrak run the trains every day may not be enough. It would also be advisable for Congress to mandate that the host railroads make slots available.

Given today’s politics, it is difficult to tell how an appropriations bill from the House might fare in the Senate or survive a possible veto by President Trump. Democrats control the House and, historically, Republicans (who control the Senate) have considered them too generous with government funds. Still, Amtrak has bi-partisan support; or, at least the trains themselves do. Northeastern Democrats support Amtrak solidly, because the NEC runs near or through their states.

Some of the Senators from elsewhere in the country who have called for daily long-distance service to continue are Cory Gardner (R-Colo.), Steve Daines (R-Mont.), and Joe Manchin (D-W.Va; a “blue dog” Democrat). This seems to indicate potential bi-partisan support to keep the trains running daily, if enough Republicans get on board as they have in the past. That could be enough to pass a bill and send it to Trump, who has stickier issues than whether or not to prevent Congress from requiring Amtrak to keep running daily trains through a number of states where many of his base supporters live.

There are a number of issues facing Congress concerning Amtrak and the L-D trains in particular. One is that the historic alliance between members from the Northeast and other places in the nation that has historically kept both the L-D trains and those on the NEC going requires that all Amtrak routes run at reasonable frequencies. If Congress does not prevent Amtrak from carrying out its plan, that alliance could break down, and the Northeast region could be harmed, along with the rest of the country. We will explore this and other issues facing Congress in Part 6 of this series.

David Peter Alan is Chair of the Lackawanna Coalition, an independent non-profit organization that advocates for better service on the Morris & Essex (M&E) and Montclair-Boonton rail lines operated by New Jersey Transit, and on connecting transportation. In New Jersey, Alan is a long-time member and/or board member of the NJ Transit Senior Citizens and Disabled Residents Transportation Advisory Committee and Essex County Transportation Advisory Board. Nationally, he belongs to the Rail Users’ Network (RUN). Admitted to the New Jersey and New York Bars in 1981, he is a member of the U.S. Supreme Court Bar and a Registered Patent Attorney specializing in intellectual property and business law. Alan holds a B.S. in Biology from Massachusetts Institute of Technology (1970); an M.S. in Management Science (M.B.A.) from M.I.T. Sloan School of Management (1971); an M.Phil. from Columbia University (1976); and a J.D. from Rutgers Law School (1981). The opinions expressed here are his own.