In a week when CSX and Norfolk Southern won a small procedural victory in the Surface Transportation Board to protect their submitted evidence as trade secrets, the U.S. Dept. of Transportation dropped an unusually forceful amicus brief into the STB’s Gulf Coast restoration docket, declaring flatly that the STB “should order the restoration of the Gulf Coast service” and undercutting much of the evidence the two railroads submitted.
The posture DOT adopted in its filing mirrors many of the arguments your Association has been making for some time – that the host railroads are acting in bad faith to block Gulf Coast restoration, that Congress has always intended that host railroads must affirmatively prove that new service will harm their operations, and that the host railroads continue to benefit each and every year from the “Grand Bargain” they struck in 1971 with the U.S. taxpayer, who pays some $2 billion every year to relieve the railroads of their common-carrier obligations in exchange for access to tracks and infrastructure.
DOT contends that Congress always intended that new or additional Amtrak service would enjoy a presumption of favor unless hosts could prove that new service would create an “unreasonable impairment.” Instead, DOT told the Board, Norfolk Southern and CSX are trying to water down those requirements in its Gulf Coast arguments, thwarting congressional intent. DOT also hinted that the host railroads are disingenuously stalling for time, again thwarting Congress’ desire to see decisions made quickly and transparently.
In addition, DOT declared that the host railroads’ operational analyses submitted to the Board as evidence in this proceeding were “insufficient” to prove that adding two trains each day to the are would “impair unreasonably” the freight transportation offered by the hosts.
“Congress created Amtrak to provide and promote intercity passenger rail services that were always expected to operate primarily over host railroad infrastructure. This was part and parcel of an effort to strengthen struggling rail carriers, many of whom were in a precarious financial position, by relieving them of their longstanding common carrier obligations to transport passengers,” DOT said in its brief to STB. “Since then, Congress has taken numerous steps to reaffirm the importance of Amtrak’s ability to operate over host railroad infrastructure, including through the recent provision of historic levels of funding for Amtrak intercity passenger rail development and related investments in host railroad infrastructure.”
DOT argued that CSX and Norfolk Southern “have advocated here for an unduly restrictive interpretation of the statute, one that fails to vindicate Congress’s intent regarding the obligation to host passenger rail service.”
As a result, DOT urged the Board “to hold the host railroads to their high burden of proof under the statute, and to issue a ruling that prevents continued, undue delays in the restoration of the Gulf Coast service.”
Like your Association argued in its own filing last year, DOT also raised the issue of setting a precedent, cautioning that this proceeding is about much more than just the Gulf Coast service, particularly given that the Federal Railroad Administration is preparing to distribute at least $42 billion in rail-related investment during the next five years.
“In the Department’s view, 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,” DOT said.
“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,” DOT noted.
Although many of these arguments mirror those your Association and others have made both before and during this proceeding, having them adopted and stated so forcefully by the Dept. of Transportation adds meaningful heft to these positions. The brief, filed in December but made public this week along with STB’s decision to permit DOT to file as “amici” or “friends” of the Board given DOT’s strong interest in the outcome of the proceeding.