DOT to STB: ‘Set a Precedent’ in Amtrak Gulf Coast CaseWritten by Marybeth Luczak, Executive Editor
The U.S. Department of Transportation (DOT) and the Federal Railroad Administration (FRA) have been allowed to file additional comments with the Surface Transportation Board (STB) regarding Amtrak’s application to operate Gulf Coast service.
Amtrak in March 2021 submitted an application under 49 U.S.C. § 24308(e), seeking an STB order requiring host freight railroads CSX and NS to allow intercity passenger trains to operate over their lines between New Orleans and Mobile. This resulted in months of clashes via STB filings between Amtrak and the freight railroads (as well as years of clashes before STB involvement). STB instituted a proceeding on the proposed service in August 2021.
In a Jan. 24, 2022 decision, STB approved the DOT and FRA’s request to submit comments as amici curiae*, which they explained “should aid in the Board’s examination of the issues and the determination of appropriate relief”; the comments also build off those filed in May 2021, when DOT asked STB to “act expeditiously” on Amtrak’s application.
Prior to the decision, Amtrak consented to the additional comments; CSX and NS did not object.
What prompted the DOT-FRA action? “DOT has critical interests at stake here in light of the role that it has played, and will continue to play, in fostering the restoration of passenger rail service in the Gulf Coast region,” the department wrote in its Dec. 14, 2021 STB filing (download below). “In particular, as discussed in the accompanying Comments, DOT has provided significant funding for capital improvements and operating financial support for the restored Gulf Coast service. FRA also led a Working Group on these issues that included the parties to this proceeding, as well as various other public and private sector stakeholders. This case is central to the Department’s role in advancing the goals of Congress and the Biden-Harris Administration to enhance passenger rail service nationwide.”
Amtrak’s plan calls for the operation of two daily round-trips between New Orleans and Mobile (see map below). The service would be separate and distinct from Amtrak’s Sunset Limited, whose service from New Orleans to Jacksonville, Fla., was suspended after Hurricane Katrina in 2005, due to rail infrastructure damage. In 2015, Congress directed the creation of the Gulf Coast Working Group (GCWG) to, among other things, evaluate options for returning service to the Gulf Coast region. That group—comprising Amtrak; CSX; NS; FRA; the Departments of Transportation of Alabama, Florida and Louisiana; regional transportation planning organizations; and others—issued a report in 2017 recommending the restoration of long-distance service between New Orleans and Orlando, Fla., and the establishment of a state-supported service with one daily round-trip between New Orleans and Mobile. The report also recommended infrastructure investments to support the service, enhance train reliability and reduce trip time. The total cost of improvements for the New Orleans-to-Mobile service: approximately $100 million. A railroad agreement, however, was never reached. (For more background information, download the STB document below.)
For the past six years, “FRA has actively engaged in efforts to restore service,” DOT wrote in its Dec. 14 comments. “FRA led the Gulf Coast Working Group from 2015 to 2017, and closely participated in the Gulf Coast Rail Traffic Controller (RTC) study in 2020. FRA also provided funding for these efforts and has made grant program selections for capital improvements and operating financial support for the restored Gulf Coast service totaling $47.6 million. Each additional day of delay in restoring this service deprives the region of a valuable transportation option, in addition to the resulting broader economic benefits. Continued delay also threatens the long-term viability of this service by prolonging uncertainty and potentially increasing the cost of capital improvements.”
A recent capital improvement cost estimate came from CSX and NS. In November 2021, the railroads submitted to STB their 2021 Gulf Coast RTC model and report (download details below), which identified 14 infrastructure projects “that could permit Amtrak to run its four daily trains between Mobile and New Orleans without impeding existing or future freight traffic.” The price tag: $405 million-$440 million. CSX and NS said Gulf Coast service would “impair unreasonably” freight operations unless Amtrak agreed to fund the improvements necessary to support its proposal.
DOT also explained in the Dec. 14 filing that “it is important to set a precedent in this case that vindicates the governing statute and the purposes underlying it. Rail carriers have obligations in hosting Amtrak service, and these obligations were part and parcel of Congress’s decision five decades ago to create Amtrak and to relieve rail carriers of their obligations to carry passengers. The Board should not countenance an interpretation of the statute that makes passenger rail service illusory. Nothing in the governing statute, 49 U.S.C. § 24308(e), indicates that Congress anticipated a protracted period of time or the expenditure of extraordinary sums as a condition precedent to the addition of passenger trains along an existing rail line. In DOT’s view, in the event that the Board determines it necessary to undertake any further examination of capital improvements or other measures along the line, those efforts should be expeditious and transparent, and the Board should retain oversight of the matter to ensure that service is promptly restored. Any such analysis should also ensure fair terms for reasonably necessary expenditures to support the passenger rail service.”
DOT concluded that it “remains ready to work with the Board, Amtrak, CSX, NS, and other stakeholders to restore passenger service to the Gulf Coast region.”
Up next on the STB calendar is a Feb. 15, 2022 (and Feb. 16, 2022, if necessary) hearing on Amtrak’s application (Docket No. FD36496). Stay tuned.
* Amici curiae, as explained by the Cornell Law School Legal Information Institute, is “Latin for ‘friend of the court.’ Plural is ‘amici curiae.’ Frequently, a person or group who is not a party to an action, but has a strong interest in the matter, will petition the court for permission to submit a brief in the action with the intent of influencing the court’s decision. Such briefs are called ‘amicus briefs.’”
Amtrak’s Gulf Coast Case Highlights
• In February 2021, Amtrak confirmed its intention to launch New Orleans-Mobile service in 2022.
• In March 2021, Amtrak submitted an application under 49 U.S.C. § 24308(e).
• In an Aug. 5, 2021 decision, the STB instituted a proceeding on the proposed service, concluding the matter was “ripe for adjudication.”
• On Oct. 20, 2021, Amtrak filed with STB a renewed request for an interim order, asserting that CSX “has been unwilling to resolve a particular access issue”—specifically, Amtrak’s request for access to conduct an engineering survey of CSX’s Choctaw Yard as a site for temporary layover track for Gulf Coast service. On Nov. 9, 2021, CSX filed a reply, arguing that Amtrak’s Oct. 20 request was “untimely” and should have been made during the discovery period of the STB proceeding, which closed Oct. 4. NS also submitted a reply on Nov. 9, asking to be “dismissed from Amtrak’s request and excluded from any interim order the Board may grant, since [NS] has not revoked nor altered Amtrak’s access to the involved [NS] lines.” STB wrote in its Nov. 29, 2021 decision that while Amtrak’s request for yard access “is untimely, it is reasonable, and, in the interest of developing a complete record, the request will be granted.” In addition, STB dismissed NS from Amtrak’s request.
• CSX and NS on Nov. 3, 2021 wrote in a joint STB filing that Gulf Coast service would “impair unreasonably” freight operations unless Amtrak agrees to fund improvements necessary to support its proposal.
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