Is Amtrak’s 2035 Map Riding on the Surf Board? (UPDATED)

Written by David Peter Alan, Contributing Editor
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Amtrak is looking to expand its network of passenger trains, for the first time in two decades. The proposal by “America's Railroad” to add dozens of new corridors and state-supported trains to its network has drawn both support and criticism from advocates: support because it marks a new attitude on Amtrak's part favoring expansion (of some sort, at least); criticism because it does not go far enough toward pushing for more long-distance trains or recognizing the contributions of the citizen-advocates who have been calling for more trains throughout almost all of Amtrak's 50-year history.

Whether or not Amtrak’s expansion plans end up going very far is the ultimate issue now before the Surface Transportation Board (STB), in a case concerning Amtrak’s proposed restoration of Gulf Coast service, which would consist of two trains in each direction between New Orleans and Mobile. Amtrak filed a petition before the Board on March 16 (Docket No. FD-36496), under statutory authority of 49 U.S.C. §24308(e), which allows Amtrak to ask for STB intervention to establish a new route or a new train if the potential host railroad does not provide for such operation. As Railway Age reported, Amtrak argued that CSX and NS refused to do their part to get the new service going.

In Railway Age’s first report on this initiative, posted Feb. 26 and headlined New Orleans – Mobile Amtrak Service in Development, Executive Editor Marybeth Luczak speculated: “The proposed service may serve as a test case for how the STB handles future intercity passenger rail proposals involving Amtrak, state entities and host freight railroads, when reaching an agreement proves problematic.” In reality, that speculation may prove to be an understatement, as the matter now at issue is looking more like a hard-fought litigation than an effort at mediation overseen by the Board.

As I reported in the companion news article to this commentary, the battle lines are drawn. Amtrak wants to run the trains and so do rider-advocates around the nation, who have been waiting and hoping for decades to see a new route on the Amtrak system (even if it’s a route that used to exist in the past, rather than a new one). Many Mississippi politicians, among them the mayors of the towns along the route, want it, because it would bring tourists to those towns and enhance local non-automobile mobility, which is extremely sparse at this time. The Port of Mobile does not want the new service, alleging apprehension about interference with its freight operations (although it is difficult to fathom how disruptive two daily trains in each direction and one layup track could be). Alabama politicians Sen. Richard Shelby, Gov. Kay Ivey and Mobile City Council member Joel Daves, all Republicans, do not want the trains, presumably because the Port of Mobile doesn’t.

CSX and NS are the freight carriers in the region. Are they opposed to the service? In an earlier version of this opinion piece, I said they are. CSX objected to my observation, telling Railway Age, “We are not opposed to Amtrak service, in the Gulf or elsewhere. However, it is critical that the long-established procedures are followed to assess engineering costs and infrastructure.”

While I have never practiced specifically before the STB, I have been admitted to the legal profession for 40 years. I know how adversaries argue their cases in the pleadings they file. From my perspective, CSX and NS are fighting against this proposal tooth and nail. Why?

The insistence on some sort of strict adherence to a procedural requirement that is not clearly written into the relevant statute appears to reflect an alternate strategy for delaying an unwanted result. If the completion of some sort of study that would help determine what steps could be taken to keep two trains a day from interfering with freight handling at the Port of Mobile were the true issue of contention, couldn’t the parties have worked together to get that study done and resolve the issue?

Have CSX and NS, by delaying the actual start of service for as long as they have, engaged in a course of conduct that is tantamount to a “refusal” that would trigger the relevant statutory remedy of going to the STB?  Frankly, with what I have learned from reviewing the pleadings, it certainly looks that way. I understand that a full evidentiary hearing might reveal new information, but it will certainly delay the start of service beyond the New Year. The result will be that Amtrak’s initial timing will not happen.

As I see it, CSX and NS are fighting this case so hard because they do not want Amtrak to come back with a proposal that could affect freight operations elsewhere more significantly than the Mobile proposal. That is how precedents work, and CSX and NS do not desire the possibility of Amtrak convincing the STB to establish this sort of precedent. From a legal standpoint, they are making the same sort of arguments I would make if I represented them. That does not necessarily mean that an administrative adjudicator would agree with those arguments. 

The parties acknowledge that this is a case of first impression for the STB, which normally adjudicates cases about freight rates and allows railroads to abandon lightly used lines (although, at the present time, its members are busy with a Class I merger). The issues in the present case are different, but they could come up often in the foreseeable future. Amtrak plans to establish many state-supported routes between now and 2035, and the freight railroads may be expected to oppose most or all of them, unless extra capacity (i.e. infrastructure) is added at public expense to accommodate new trains. They say such expense is necessary, a contention often disputed.

There are other instances of potential host railroads demanding large sums of money (some advocates believe “exorbitant” is a more-accurate description) for allowing a passenger train on their railroad. Advocates cite such a demand by BNSF before allowing Amtrak to extend the Heartland Flyer north of Oklahoma City to connect with the Southwest Chief at Newton, Kan., in the middle of the night. Then there is Union Pacific’s infrastructure demand to allow Amtrak’s Sunset Limited to run every day, for the first time since before Amtrak existed. There would be similar difficulties facing a daily Cardinal run, too.

In the present case, there is a similar dispute over the cost of infrastructure improvements that would be needed before the trains can again roll into Mobile. Acting U.S. DOT General Counsel John E. Putnam wrote to the STB (and to the parties) on May 10, stating: “FRA arrived at an estimated cost of $118 million, while CSX estimated that $2.3 billion in capital improvements would be required” to restore the Gulf Coast service—a number 19.5 times as much as the FRA’s.

In short, the issue is money, and potential host railroads don’t want to be forced to accommodate an Amtrak train unless the public sector finances the extra infrastructure (for example, with government grants). They want to charge what they believe the market will bear. They may not be able to stave off a new passenger train forever, but delay is on their side. If they delay a proposed new start, they can continue to argue their position. They can also hope that the proponents of any new service will eventually lose interest and give up. To date, none of the disputes over the cost of new infrastructure have prevented a new service being inaugurated, at least since Downeaster trains between Boston and Portland, Me., started running in 2001. 

There could be some change coming: USDOT has stressed the importance of getting the Gulf Coast trains running, and there is a State initiative in Virginia to purchase some unused right-of-way from CSX and NS and upgrade the tracks for passenger trains there. Time will tell how successful these initiatives are. Still, it is in the interest of potential host railroads to get as much money as they can for access to their tracks, and a statute that allows the STB to act essentially as an arbitration tribunal that sets the price and makes the rules is not necessarily what they want to see. 

A review of the pleadings filed before the STB seems to indicate that the primary issue is scheduling. NS and CSX say that Amtrak is attempting to go too fast in establishing the new service, and that more studies are necessary. Amtrak denies those allegations, an assertion that could have merit.

An expedited study could help speed up the approval process, but it appears that NS and CSX are playing for time. The longer they can delay the implementation of new passenger service and the more procedural hoops they can erect to thwart and delay those new starts, the harder a bargain they can drive. They argued about the sufficiency of studies, but is it necessary to conduct exactly the sort of study they want to get the data that everybody needs to determine how much investment is really necessary?

Maybe not. Transportation economist and Railway Age Contributing Editor Jim Blaze says that the FRA and several consulting firms have digitized rail network databases plus train operational simulation software that can be used to provide the desired congestion or free flow information as Amtrak service is added. He also says that it would take only about one or two months to compile the input data for a useful study, and then, with an FRA review, submit the findings to the STB. That would mean there is no need for Amtrak, CSX, NS or anybody else to go through a year-long study.

The eventual results and the procedural precedents associated with the Mobile matter could be repeated dozens of times in other states between now and 2035, or even farther into the future. Will the STB, with the help of the FRA and other government entities, be able to establish a process for adjudicating disputes between Amtrak (or a state wishing to establish a new train or corridor) and a potential host railroad concerning infrastructure and its costs? If so, that may mean more new trains beginning to roll sooner than the potential host railroads would like, even though probably not as quickly as train-starved potential riders would like.

In the present dispute over Mobile service, there is still more potential delay ahead, perhaps years of it. Administrative decisions can be appealed to the D.C. Circuit Court of Appeals. After a final decision by that court, the loser can petition the Supreme Court to hear the case. While it appears unlikely that SCOTUS would do so, the dispute over Amtrak participating in rulemaking concerning on-time performance made it to the Court and resulted in a decision (U.S. Dept. of Transportation v. Association of American Railroads, 575 U.S. ___ , 135 S.Ct. 1225, in 2015). A total delay of five years or more is not out of the question, especially if the Supreme Court should decide to hear the case.

There is a legal maxim: “Justice Delayed is Justice Denied.” The idea may go back to ancient times. It was expressed in the Magna Carta (1215), and more recently by Martin Luther King (Letter from the Birmingham Jail, 1963). Could it also be said that “Mobility Delayed is Mobility Denied”? The time for genuine expansion of the Amtrak map, perhaps even beyond Amtrak’s own state-oriented plans, may finally have come. If it has, only a strong governmental body can overcome the instincts of host railroads to delay new passenger train starts. We will know soon if the STB is up to the task. Amtrak, CSX and NS have already drawn the battle lines, and the contest is in full swing. 

As I see it, CSX and NS saying that they did not “refuse” Amtrak’s request is not a statement of fact when the issue before the STB is whether the delay that can be attributed them amounts to a constructive refusal producing the same effect as an outright refusal with the word “No” in it.

The overarching question is whether CSX and NS (or other potential host railroads in the future) can make enough waves (or, perhaps, a big-enough wave) to knock over the Surf Board on which the hope for an expanded passenger train network now rides. 

David Peter Alan is one of America’s most experienced transit users and advocates, having ridden every rail transit line in the U.S., and most Canadian systems. He has also ridden the entire Amtrak network and most of the routes on VIA Rail. His advocacy on the national scene focuses on the Rail Users’ Network (RUN), where he has been a Board member since 2005. Locally in New Jersey, he served as Chair of the Lackawanna Coalition for 21 years, and remains a member. He is also a member of NJ Transit’s Senior Citizens and Disabled Residents Transportation Advisory Committee (SCDRTAC). When not writing or traveling, he practices law in the fields of Intellectual Property (Patents, Trademarks and Copyright) and business law. The opinions expressed here are his own.

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