What’s NOT in the IIJA

Written by David Peter Alan, Contributing Editor
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In November, Railway Age reported on the provisions of the new infrastructure statute, the Infrastructure Investment and Jobs Act (IIJA), that relate to passenger rail—Amtrak and rail transit. the report came to you on Nov. 15, the day President Biden signed it into law. While that article constituted a report about what the statute says about rail, this one is a companion commentary that will examine what it does not include. In some ways, the bill’s omissions may have a greater impact on future policy concerning Amtrak and transit than the provisions that were actually enacted.

In summary, advocates for an expanded and more-robust Amtrak network, along with transit advocates and managers, probably hoped for more than the bill ended up delivering. Amtrak and transit will get some federal funding for the next five years, although I don’t know how far that money will go during these unsettled times when the COVID-19 virus and its new variants essentially rule the globe, and inflation in the country has hit a peak unknown during the past four decades. I know that some transit and some Amtrak trains will be kept alive for the next several years, but I don’t know how much of today’s transit or how many of today’s trains will survive the COVID-era. It has lasted for 21 months so far and shows few signs or stopping, or even letting up.

Against that backdrop, American politics remain as divisive and turbulent as ever, both at the national level and in many states, where decisions are made about transit service and about some Amtrak trains. It was a long-lasting and difficult task for Biden and his allies to get the bill through Congress, given strong Republican opposition, complaints from progressive Democrats that it had been watered-down too much, and the indelible stamp of West Virginia Sen. Joe Manchin, a Democrat, who kept pouring the water on it. While Democrats had hoped in 2020 that voters would give them a stronger mandate to govern, it did not happen that way. They squeaked through both houses of Congress with razor-thin majorities. In the Senate, that required two unexpected victories in runoff elections in Georgia. Despite that, Manchin, sitting on the party’s right flank, gave the bill a reddish tinge that most Democrats had to swallow, because it was better than nothing, which is what Republican Minority Leader Mitch McConnell would have given them. 

Transit Funding: How Far Can it Really Go?

In the days of transportation bills with cutesy acronyms like “ISTEA” (the Intermodal Surface Transportation Efficiency Act of 1991), the American Public Transportation Association (APTA) campaigned for transit to get 20% of the funds that went to highways and transit combined. The share for transit would come up short of that, usually about 18% of the combined figures. When I engaged in “Days on the Hill” to campaign for Amtrak and transit funding during that period, I always argued that transit should get a larger share of the pot to encourage a shift away from auto-dependency and toward building a transit network that would offer more routes and more service, including adding rail transit. Those arguments got nowhere then, and it does not appear that they are getting any further today.

During the new statute’s five-year term, transit will actually hit the 20% mark, but circumstances have changed drastically since the virus struck. It can no longer be said that such a modest increase will even allow transit as I knew it in 2019 to survive at that level, much less expand as a means for improving mobility and fighting the increasingly acknowledged effects of climate change.

Vehicle use had declined for about 15 years before the virus hit, even though there was no modal shift in spending, at least not a significant one. Then questionable studies scared the public with claims that transit is not safe. The level of transit service has improved since the worst of times last year, but it has not recovered to pre-COVID levels, and nobody knows when (and even if) it will. The COVID relief legislation that was passed prior to the new infrastructure statute included federal operating support for transit to keep it alive, but the new statute does not call for it. How well transit providers (and, consequently, transit riders) will be able to weather the years to come is now anybody’s guess.

To make matters worse, the “business-as-usual” approach to highway spending ignores the reality that the historic overuse of motor vehicles will continue, thereby also contributing to the effects of climate change and other environmental problems. Without a strong modal shift in favor of “greener” and more efficient transit, especially rail transit, it will be very difficult (if not impossible) to coax motorists out of their vehicles and onto transit. A few cities have urban rail transit that operates on a seven-day full-service basis, and a few have regional rail systems that do the same, but most places do not. If transit providers have trouble finding sufficient money to run enough service to persuade motorists to ride, there will be no improvement in the environmental, social equity or local business pictures. Sadly, the new statute does not include a solution for this problem, which will only get worse as the years go by.

The Same Old Amtrak

The statute contains some improvements for Amtrak, but they will be minor. Many of the advocates for Amtrak’s riders around the nation had hoped for major improvements, and even reform, but they have now suffered one more disappointment in a string that has continued for the past half-century. 

That’s not to say that there are no improvements at all on the Amtrak front. Grants will increase, while advocates outside the Northeast who believe the Northeast Corridor (NEC) is getting too large a share of the Amtrak pot will see the share that goes to the National Network increase over the statute’s term. 

There are also some policy reforms. Amtrak managers now have more latitude to use their judgment in making business decisions (if they are up to the task) than they had before. The Congressional micromanagement of decisions like the price of hamburgers in the lounge cars that was championed by former Republican Rep. John Mica (whom Railway Age Capitol Hill Contributing Editor Frank Wilner often called an “annoying hemorrhoid”), and which advocates for the riders detested since its enactment, is now over. Amtrak is also more accountable to Congress on certain more-important items, like giving notice before implementing service cuts (§22210(d)). That particular provision may have succeeded in keeping Amtrak’s few long-distance trains running every day (see below).

While these reforms constitute steps in the right direction, they are only baby steps, and their impact will probably be minor and episodic. Amtrak Board members are still subject to the political process, rather than vetted thoroughly for extensive knowledge of Amtrak, its riders, its purposes and the communities it serves (and could serve, if Amtrak were allowed to expand in a meaningful way). There is no provision for genuine advocates for Amtrak’s riders to have one or more “seats at the table” where the decisions are made. Representatives of organizations that represent Amtrak’s riders are allowed to sit on a “working group” about food and beverage service and participate in a DOT-sponsored study about expanding the long-distance network, but positions on two advisory bodies appears more like a meaningless gesture that falls far short of any genuine participation in the decision-making process. At present, there are only two such rider-advocacy organizations of national scope: the Rail Users’ Network (RUN) and the Rail Passengers’ Association (RPA). Again, it seems that the riders continue to be left out in the cold.

An Expanded Amtrak? Don’t Count On It

As mentioned, the statute calls for a study concerning expanding the national network, authorized under §22214. It will cost $15 million over the next two years, and some rider representatives will be allowed to participate (in theory, at least). What actual good such a study will do is highly questionable, because the old definitions of Amtrak’s network from the Passenger Rail Investment and Improvement Act of 2008 (PRIIA, codified at 41 U.S.C. §24102(5)(C)) remain in full force and effect. Congress could have changed them to allow for a vigorous expansion plan that would create the sort of network of additional long-distance routes and state-supported corridors and trains that organizations like RUN and RPA have been promoting for their entire histories, as have state- and regional-level advocacy organizations.

Both of those organizations have called for Amtrak to expand its long-distance network. RUN concentrated on calling on Amtrak to restore routes that had been discontinued as early as 1979 and as recently as 2005. RPA’s “Grid and Gateway” proposal also included some routes that were originally discontinued in the 1960s, before Amtrak was founded. While reviving routes that Amtrak once operated is on the table, at least theoretically, restoration of any route that was discontinued before April 1971 is not. That includes several lines in the “Grid and Gateway” proposal, among them the Southern Belle on the Kansas City Southern (soon-to-be-merged with Canadian Pacific) and Union Pacific’s legendary Feather River Canyon portion of the historic California Zephyr (1949-1970) on the old Western Pacific.

Congress could have substituted a more-expansive set of definitions for the Amtrak network, but declined to do so. Under PRIIA, the long-distance network was limited to trains that were running when it was enacted more than 13 years ago. There were 14 long-distance trains then (including two that only run on tri-weekly schedules), just as there were in 1971, and just as there are today. The long-distance network is still prohibited from expanding, unless Congress acts again to allow such expansion. 

Ironically, that action (or lack of same) condemns the mandated DOT study about new long-distance routes to irrelevance, unless a further act of Congress brings it to life. PRIIA itself mandated such a study for Gulf Coast service between New Orleans and Florida, which was discontinued in the wake of Hurricane Katrina in 2005, but no passenger train has ever operated on the line since then, except a test train in 2016, while legal wrangling over running trains between the Crescent City and Mobile twice a day will probably delay the actual start of service for several more years. Amtrak wanted it to start early in 2022. Amtrak probably won’t Connect US with state-supported trains, either

The situation for state-supported trains and corridors is not much better, and the new statute only improved it slightly. Amtrak’s recent Connect US plan for 2035 proposed dozens of new short-distance routes for corridors or single-frequency trains that would be financed primarily by the states, although Amtrak would provide some support for the first six years of operation on a plan that is slightly more generous than the one enacted in the 2015 version of PRIIA. I commented on that plan when it was first proposed, and other commentators criticized it more severely. One of them is Dana Gabbard, an advocate from Los Angeles who blasted the proposal for being “merely illustrative” and underfunded at an on-line conference sponsored by RUN in October.

The new statute did not make it significantly easier to get new state-supported trains onto the rails. In the absence of a strong incentive for states to support new trains or expand existing corridors, the states will not spend the money. Already, Missouri has announced that one of the two round-trips running between St. Louis and Kansas City will be discontinued at the beginning of the year. 

Could a new funding formula that would strongly encouraged states to support new trains, or at least keep the current ones going, have saved that train? I don’t know for sure, but the feds kick in most of the money for new highway construction, even though vehicle use had been declining until the virus struck. If highways look like a better deal to state transportation officials (most of whom are highway-oriented, anyway) than trains, they will build highways and not run trains. A provision to help states with the cost of operating state-supported trains, especially after the sixth year of operation, would have helped keep more passenger trains on the rails, and might have helped stretch the rail component of Missouri’s budget far enough to keep offering a morning departure from St. Louis and a return trip from Kansas City in the mid-afternoon.

Coupled with the continuing freeze on the long-distance network, it does not appear that many projects on Amtrak’s 2035 list will be implemented. For the rest of the COVID-era and beyond, it seem that few states will be able to afford to start new routes under the conditions specified in the new statute. 

Amtrak’s Existential Flaw Continues

In an analogy to the Catholic tradition, Amtrak was born with an “original sin” that Congress could have eliminated in the new statute, but did not. That was the fiction that “America’s Railroad” was to be considered a corporation capable of operating a profit. Several commentators, including this writer, decried that particular fiction when reviewing the start of Amtrak in 1971. Still, it appears that it was necessary to hobble Amtrak with that fiction, or President Richard Nixon and his gatekeepers would not have allowed Amtrak to be established at all.

It never made much sense to proclaim that a skeletal network with only a few trains could turn a profit, while a much more extensive one with several daily frequencies was considered a severe financial drain on the railroads that ran it. Certainly, there was no rational basis for believing that a tiny network, with fixed costs allocated to only a few trains could absorb costs that railroads were anxious to shed and still operate in the black. It made no economic sense, but it probably made political sense at the time. There were attempts to set the record straight in later years. David Gunn told Congress during his tenure as Amtrak’s president that passenger trains and transit did not fit the profit-making business model, for example. Still, Congress demonstrated that it was not yet ready to listen.

The myth that Amtrak is supposed to make a profit continues to prevail, causing deleterious effects ranging from criticism and ridicule directed at Amtrak because of its “losses” to repeated efforts by Amtrak management to “shrink its way to profitability,” a feat that everybody else seems to acknowledge is impossible. 

Congress and the Biden Administration took some small steps in the right direction by stressing Amtrak’s mission to serve the riders and their communities, rather than concentrating on making a profit (§§22201 and 22202) and declaring the value of long-distance trains. Time will tell if those declarations improve Amtrak’s standing or merely act as lip service. Whatever help those declarations may be, they fall short of an outright repudiation of the fiction that Amtrak is supposed to make a profit. In that respect, Congress failed Amtrak and its riders. In doing so, they apparently missed the last chance that they will have for several more years to eliminate Amtrak’s founding falsehood and honestly declare Amtrak’s value and true purpose.

Can these deficiencies be remedied? Probably not. It looks like the Republicans will score gains in the next election, which will be hard on Amtrak. Bill Flynn is on his way out, and political mastermind Stephen Gardner will have the leadership of Amtrak to himself. He knows politics, he knows Congress, and he knows how to keep things the way they are today. What we see is what we will continue to get.

COVID Testing and Long-Distance Trains

It has now been only a little more than six months since Amtrak riders around the nation got to enjoy restored daily service on 12 Amtrak long-distance trains, after a nine-month drought when every such train ran only three times a week, and many previous connections to other trains ceased to exist.

It almost happened again, as Amtrak threatened new service reductions, on account of the COVID-19 virus and the actions of a few employees (Amtrak said about 3%) who refused to get their vaccination shots. Amtrak continued to threaten cuts in service, especially on long-distance routes, despite a court order issued two days earlier that enjoined President Biden’s Executive Order that mandated vaccinations for all employees of federal contractors, except for those granted exemptions.

The injunction in question was issued by Judge R. Stan Baker of the federal court for the Southern District of Georgia in Georgia v. Biden, Civil Action No. 1:21-cv-163 (S.D.Ga., Dec. 7, 2021). Besides Georgia, the States of Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia, along with governors, state agencies in those states, and publicly funded universities in Georgia, were also plaintiffs. Associated Builders and Contractors, Inc. (ABC), a multi-state association, was allowed to intervene. A judge in the Eastern District of Kentucky had issued a similar injunction in another case, Kentucky v. Biden, on November 30. Baker’s injunction would apply nationwide: “The Court finds it necessary, in order to truly afford injunctive relief to the parties before it, to issue an injunction with nationwide applicability” (at 27).

To obtain an injunction, plaintiffs must demonstrate irreparable harm if the relief is not granted, likelihood of success on the merits, that the balance of equities favors the requested relief, and that the relief sought is in the public interest (expressing the standard as articulated for the Eleventh Circuit in Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225–26 (11th Cir. 2005)(the famous Terry Schiavo case). In his ruling, Baker said: “The likelihood of success on the merits is generally considered the most important of the four factors.” He held that the Biden’s action at issue, Executive Order 14042, was a public health measure, even though it was issued under the auspices of the Federal Procurement Act, so it was improper as exceeding the scope of Congressional authorization as expressed in the procurement legislation (at 20). 

Railway Age’s Dec. 9 report quoted Amtrak’s response, which said: “Earlier this week, the U.S. District Court for the Southern District in Georgia instructed the Biden Administration to halt enforcement of its federal contractor vaccine mandate. While Amtrak acknowledges this decision, the company also affirms its right to have its own policy in place. As a reminder, Amtrak first announced its vaccine mandate on Aug. 11, which pre-dates the Administration’s Executive Order for federal contractors. Accordingly, Amtrak’s vaccination mandate deadline remains Jan. 4, 2022.” Amtrak went on to say, “We anticipate we will initially not have enough employees to operate all the trains we are currently operating after our mandate deadline of Jan. 4 … As a result, we will have to implement temporary frequency reductions, primarily for our Long Distance services.” The exact nature of the cuts was scheduled to be announced later this month.

Employees who had not yet gotten their first shot could not have met the deadline to complete the two-shot series by Amtrak’s deadline. There was also no opportunity for them to repent and get their vaccinations. They were to be considered “insubordinate” and terminated. If the loss of those few employees left crew bases understaffed, especially in the West, where vaccination rates remain low, there would be fewer Amtrak trains running on those routes until quaified train and engine (T&E) crew members could be trained and qualified on those lines. Under those circumstances, the daily service, which Congress intervened to restore by statute last spring, would be lost. Advocates and other commentators speculated that the hated tri-weekly schedules could return for an extended time, despite the expressed intent of Congress.

Less than five days later, Amtrak reversed its position allowing unvaccinated employees to be tested every week and eliminating the threat of service cuts. The report included a memo by outgoing CEO Bill Flynn that said: “Recently a federal district court decision halted the enforcement of the Executive Order for federal contractors. This caused the company to reevaluate our policy and to address the uncertainty about the federal requirements that apply to Amtrak … Amtrak is announcing today that we will revert to our original vaccine mandate policy announced on August 11, which will allow, on an interim basis, for testing as an alternative to getting vaccinated.” 

Notably, Flynn also said: “After reviewing our system service plans in light of these changes, we do not anticipate having system-wide service impacts in January.”

In my opinion, it was §22210(d) of the new statute, the Infrastructure Investment and Jobs Act, that prompted Amtrak to reverse its former hard-line position and allow frequent testing as an alternative. That provision states: “Amtrak may not discontinue, reduce the frequency of, suspend, or substantially alter the route of rail service of any segment of any long-distance route in any fiscal year in which Amtrak receives adequate Federal funding for such route on the National Network.” There is also a requirement that Amtrak give 210 days’ notice to members of Congress from states or districts where the proposed service reduction or discontinuance would occur. Amtrak was prepared to give 30 days’ notice or less, a clear violation of the new statute.

Subsection (c) allowed certain exceptions: in an emergency or during maintenance or construction outages. Amtrak sometimes invokes this provision during a landslide, flood or similar occurrence, to suspend a train, run substitute buses, or detour a train over an alternate route. These service interruptions are usually short-lived, however, and normal service is restored when the emergency is over. 

It appears unlikely that Amtrak could have gotten away with declaring the need to terminate a small number of unvaccinated, but critical, employees as an “emergency” within the meaning of the statute and reducing service for an extended period of time on that account. A court of competent jurisdiction had already issued an injunction, which means that the plaintiffs demonstrated, among other proofs, that the relief was in the public interest and that the parties who wanted the vaccine mandates reversed were likely to succeed on the merits. 

That “likelihood of success on the merits” appeared to send a green signal to Amtrak for allowing the “testing alternative” for the few holdouts, along with the hope that they would also be able to change their minds and get their shots, without facing the threat of losing their jobs because they had not done so already. This is not to say that it is good for public health for anyone who works with members of the public to refuse the shots that would protect them from the virus and also prevent them from spreading it to other people. Yet it appears, at least to me, that eliminating essential rail service forces a greater harm on the riding public than the risk of brief contact with crew members who are tested regularly for the virus and who consistently wear masks while on board (as do the passengers). This is another example of a “balance of equities” that judges are sometimes required to consider. 

I don’t know how Amtrak’s senior managers felt when they reversed their previous policy in light of the court ruling. One advocate suggested in a blog post that Stephen Gardner had said, at least to himself: “Curses! Foiled Again!!!!!!!” (emphasis and all exclamation points in original, as posted). I have no way of knowing whether or not Gardner actually said that, or what anybody else at Amtrak said, except for the statements quoted in our reporting. 

Still, it appears that Amtrak recognized the authority and the new intent of Congress concerning service reductions on Amtrak’s long-distance trains. Without that new declaration in §22210(d), Amtrak might have gotten away with slashing service on its long-distance network for the second time in only fifteen months. Many in the advocacy community maintain that Gardner does not like the long-distance trains and that he would rather discontinue them. He has denied that allegation, but has not backed that denial up with actions unless Congress forced Amtrak’s hand. The expressed support for the few existing long-distance trains in the new statute may take on added importance in the future, as Bill Flynn steps down and Gardner consolidates his leadership position at Amtrak. 

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