The witness phase of the slugout between Amtrak on one side and CSX, Norfolk Southern (NS) and the Port of Mobile on the other, ended May 12 as its 11th day concluded. It ended not with T.S. Eliot’s oft-quoted “whimper” but truly with a bang.
It was held before the Surface Transportation Board, and STB Chair Martin J. Oberman characterized it as “an unprecedented hearing” and “maybe the longest ever.” The “bang” was a frank, forthright and apparently frustrated summation by Oberman, who acknowledged that he could not force the parties to provide more evidence, but gave them the opportunity to do so next month. Accordingly, the next session is scheduled for June 13. Oberman’s statement lasted for nearly 35 minutes.
Most of the trial focused on Railroad Traffic Control (RTC) modeling, which simulates real-time conditions on a rail line, and a study that attempted to show that CSX and NS needed a number of infrastructure projects built before Amtrak can begin to operate two daily passenger round-trips on the Gulf Coast Corridor between New Orleans and Mobile, Ala. (For more, see “Round 6: The Port Raises a Statutory Issue.”) One Amtrak witness also described an alternate methodology that indicated that Amtrak could run the trains first without unreasonably impairing freight movement on CSX and NS (the statutory standard), and then build additional needed infrastructure after service begins.
Oberman began by distinguishing the present case from the usual civil litigation matter, which focuses on the interests of the parties to the action. “The Board has a strong duty to consider the public interest,” he said, and called for more information concerning the requirement that new passenger service not “unreasonably impair” freight operations. Oberman criticized the definition presented by the parties of the word “unreasonable” as being circular and, therefore, not providing guidance that the Board can use toward making a decision. He also complained that there was nothing adduced at trial about the other statutory requirement that the new Amtrak trains be able to travel at an average speed of 60 mph.
In his address, Oberman questioned the positions taken by Amtrak and by CSX and NS. In the case of the former, it was the expectation that no new infrastructure—with the possible exception of a station track at Mobile that could be used as a layover track—would be needed before service is inaugurated. In the case of the latter, it was insisting that they could demand “no degradation” in freight service as a result of hosting Amtrak trains, and a 95% on-time performance for those trains when the normal standard is 80%. He noted that adding Amtrak trains would produce at least “some” impairment. Oberman also criticized the railroads for their unwillingness to build new infrastructure until after considering operating changes when they are spending their own money for that infrastructure, but insisting on new infrastructure instead of inexpensive operating changes when taxpayers’ money would pay for it.
One notable omission that Oberman mentioned was the apparent lack of concern about how the delays that could result from introducing Amtrak trains would affect freight customers. Another notable omission that he did not mention was the impact on persons who would want to use the trains under consideration, and have had no such service since 2005 and must continue to wait even longer to ride.
Oberman clearly expressed his frustration with the way the process has gone so far. He referred to his hometown of Chicago: “If this were an old-fashioned Cook County courtroom, I’d take you both into chambers and get it done.” Since federal administrative agencies don’t work that way, he called on the parties to “fill in the gaps” in the evidence, which would help establish precedents for a large number of anticipated cases that will result from efforts to establish new corridors and intrastate routes under Amtrak’s 2035 Connects US plan. Oberman noted that possibility and called the parties back in 30 days—June 13.
Other Board members agreed with the approach. Karen J. Hedlund, who had spent some of her career at the Federal Railroad Administration, criticized the lack of cooperation between the parties and described how she would have pushed them to settle the case, if she had the authority. She described this case as “very frustrating” and called for “complete transparency,” especially with the funding partner, and for “sharing of information among the parties.”
Robert E. Primus said, “[I]t’s about where the public interest lies” and mentioned 100 pounds of notebooks generated by the case, despite the Paperwork Reduction Act. He added, “There are still some truths out there that we need to know.” Michele A. Schultz said the parties know the most about the situation and joined the call for them to settle. Patrick J. Fuchs gave assurances that the Board would continue to work on the matter and said, “We want to get this right.”
After the other Board members made their statements, Oberman admonished Amtrak for concentrating its case on the argument that the railroads did not meet their statutory burden of proof, and suggested that Amtrak should provide more evidence in support of its case in chief. Having said that, he reiterated his call for the parties to settle on their own.
Oberman stressed the importance of getting guidance concerning how cases of this sort should be handled in the future, since this is a case of “first impression.” Besides whatever such guidance this writer could supply here, there seems to be a hope springing that the parties can help in that respect.
This writer boils down Oberman’s summation this way: “I think there’s a real public interest need that Congress has [stated], to reinstate passenger service on the Gulf Coast, but only within the confines of the statute.” Time will tell what happens, especially whether the parties settle the case and clear an important and so far, a very high hurdle that has delayed passenger trains along part of the Gulf Coast for several years.
Oberman had much more to say than I could bring you in this interim report, but such a candid statement from a trier of fact in a litigation (or a litigation-like situation) is rare, and, therefore, newsworthy. My plan had been to report Amtrak’s four-day presentation of its case as Round 7, with the eventual closing statements as Round 8 in the current slugfest. Instead, Oberman took off the figurative gloves and delivered Round 8 himself. In so doing, he changed the metaphor.
Now, it’s more like a baseball game that is going into extra innings. Even if the summations from the parties could be considered the 9th inning, there will now be additional proceedings in June. I will report the Amtrak case (Round 7) and a more-detailed look at Oberman’s statement (Round 8) soon, and there are other topics for comment before the parties return to the Board next month. They include an inquiry about whether an adversarial-style proceeding that resembles litigation is the best way to handle cases of this sort, other stakeholders who should have been heard, and better ways to decide what must be built to accommodate new Amtrak routes. There are also the destinations that would be served by the proposed trains, and they deserve consideration, too.
As I mentioned earlier in prior reports, there will be a lot more to discuss before trains actually run between New Orleans and Mobile. And we’ll report on train service, too—whenever it happens.
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.