2024 Is Here: Hold On Tight
January 5, 2024
By Jim Mathews / President and CEO
If 2021 was the year in which half a century of campaigning by our members and volunteers paid off in the form of the Bipartisan Infrastructure Law, then this is the year that could really lock in those wins...or begin to unravel them.
Your professional staff is already gearing up for what is likely to be one of the busiest and most consequential years in our history. Obviously, nobody knows what “news” will break during the next 12 months, but we can already flag at least seven things we’re working on now that we think all of you should keep your eye on, because soon enough we’ll be asking for your phone calls, emails, and visits to help push these issues over the line.
1. Will pro-rail Republicans hold firm in the House?
You may remember from early November that thanks to a concerted effort by passenger train advocates, the U.S. House of Representatives indefinitely delayed a vote on the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act of 2024 (H.R. 4820), which would have slashed Amtrak funding by 64 percent, threatening intercity passenger rail services across the nation.
Halting the ‘Kill Amtrak’ bill was a really big deal, and all of us owe a great deal of thanks to a block of Republican Reps. Brian Fitzpatrick (PA), Marc Molinaro (NY), Mike Lawler (NY), Andrew Garbarino (NY), and Nick LaLota (NY), all of whom sponsored amendments protesting the rail program cuts. We should also note that Midwestern Republican Rep. Don Bacon of Nebraska also cosponsored a pro-Amtrak amendment that was ultimately ruled out of order by the House Rules Committee. The Northeasterners’ amendments were bundled together with other “non-controversial” amendments and adopted by a voice vote, and their opposition led the House Majority to pull the ‘Kill Amtrak’ bill from the floor.
So far as of today there’s no vote scheduled, but with the House back in session one of the first items on their to-do list will be making another run at H.R. 4820. So long as the steep Amtrak cuts remain in the bill, we can count on House Democrats not to support it; now we’ll have to see how Speaker Mike Johnson attempts to wrangle some kind of consensus out of House Republicans...and with a razor-thin majority, the Northeastern Republicans will be enough to tank H.R. 4820 again. Your professional staff is ready to work with key offices again to make sure the sober-minded Senate version of the THUD appropriation is the basis for negotiations with the House on transportation funding.
2. Yes, it’s already time to think about BIL Reauthorization
In the strange alternate-universe time-displacement version of reality that is the U.S. Congress, even though the first meaningful tranches of rail funding from the five-year Bipartisan Infrastructure Law were only awarded last month it’s time for your staff to begin assembling a legislative package for what comes next.
Remember, the Bipartisan Infrastructure Law started out as the Investment in Infrastructure and Jobs Act (IIJA), layered on top of the regular re-authorization of what was called the FAST Act (for Fixing America’s Surface Transportation). The surface transportation authorization bills are five-year policy statements, setting out plans and priorities in transportation with “authorized” levels of funding for each of these priorities. Congress will take up (and, we hope, pass) the next five-year bill in 2026, which means next year all the ideas and priorities will be jostling for a place in drafts of the new legislation. To do that, we have to put our ideas and priorities on the table by this Fall if we want to be part of the conversation.
While not all of our ideas have made it into the final laws, a lot of them have found their way into legislation in recent years: things like the long-distance restoration effort at the Federal Railroad Administration, early versions of the Corridor ID program, cementing the long-distance network’s place in Amtrak’s mission statement, making the Amtrak Board more representative of the riding public, and food and beverage reform.
Even a few items that didn’t make into the BIL by themselves have nonetheless been implemented, like our proposal for a Shared-Use Advisory Committee. We outlined a plan to bring together passenger rail and freight rail representatives to come up with mutually acceptable ways to co-exist and thrive on shared rail rights-of-way. While didn’t make it into the BIL, the Surface Transportation Board is convening a permanent 18-member Passenger Rail Advisory Committee to advise on many of these kinds of passenger-rail issues as cases come before the Board.
Sean Jeans-Gail, your VP for Policy and Government Affairs here at the Association, is leading our internal discussion on how to frame our BIL reauthorization package. Once we have a good sense of what is plausible and practical legislatively, we’ll be working with your elected Council members to flesh out some of these ideas. With the 2024 elections looming, we’ll only have until mid-summer to make meaningful progress before our colleagues and contacts on Capitol Hill turn their attention full-time to campaigning. So for us, that means time is short.
3. Amtrak will choose a long-distance fleet
Amtrak has officially made a New York Central-sized bet on the future of the long-distance network, sending a formal Request for Proposals (RFP) out to manufacturers just before the Christmas holidays for at least 47 trainsets, or close to 500 bi-level cars. The car builders have been preparing to respond to this for more than a year, with a lot of prep work via the Request for Information (RFI) issued more than a year ago. Now that the RFP is out on the street, the car-builders can show how serious they are within the next few weeks when they make their bids.
There’s enough work here to justify jump-starting an entire industrial base, and that’s what Amtrak is hoping will happen. By this time next year, Amtrak expects to have chosen a winner for the biggest North American passenger railcar order since 1948. Amtrak is all-in on bi-level equipment to replace its Superliner fleet throughout the long-distance operation and is trying to send a signal to the car-builders that bi-levels will be a big enough market to merit their attention and focus. From a legislative point of view, your Association staff will need to keep Congress focused on the crucial need for fleet replacement, given that half of Amtrak’s fleet is already 40 years old and more than a third is 45-plus years old.
One of our big goals here will be to make the point that the existing U.S. industrial base for railcar design and production has been starved for decades, and this order could provide the impetus and urgency to reverse this. Siemens’ U.S. backlog is already ten years long, and Amtrak’s giant order is only for a one-for-one replacement. The growth being paid for elsewhere in the Bipartisan Infrastructure Law is going to demand a healthy, vibrant industrial base capable of delivering the railcars needed to operate new and expanded services nationwide.
Right now, European operators can place big orders for modern trainsets and expect deliveries within a few years at a cost of perhaps $3 million per railcar. In the U.S., that’s not even a remote hope. Amtrak’s big bet on bi-levels for long-distance service will be a rallying cry for rebuilding a rail industrial base worthy of the United States. Whoever they choose in 2024 will be responsible for a lot more than just building 47 trainsets. The winner will shape the U.S. passenger rail landscape for half a century. Let’s hope the manufacturers sharpen their pencils when they bid, and recognize the seriousness of the task they’re taking on.
4. FRA will recommend new and restored long-distance routes to Congress
Recall that last year the congressionally ordered review of which long-distance routes to restore or create got underway in earnest. The Federal Railroad Administration convened a dozen workshops to map out potential segments across the country which could create new access to Amtrak for about half of the American population which does not already today have a way to take the train. We were invited to take part in every single one of these all-day workshops, and we’re proud of what has been done so far. If realized, the new Enhanced National Network would bring passenger trains to 43 million people, including millions in areas of persistent poverty, poorer communities, remote rural communities, and tribal lands throughout the United States!
Next month, another round of workshops will kick off, and this time we’ll be turning those segments into routes. Once again your professional staff will be there every step of the way, and we expect to apply our economic-benefits modeling tools and new ridership estimation tools during these sessions to help FRA prioritize how routes will show up in the report to Congress.
The new Enhanced Network could add significant north-south service in areas west of Chicago, and meaningful multiple connections to un-served or underserved southeastern cities like Atlanta, Nashville, Chattanooga, Birmingham, Mobile, Pensacola, and Tallahassee.
Importantly, daily service on the Cardinal and the Sunset Limited, along with restored service along the Gulf Coast and the new route linking Chicago and the Twin Cities, are presumed to already exist in the Baseline Network on which this new Enhanced Network will be built. In other words, the report to Congress will begin with the assumption that those two non-daily routes will get daily service restored regardless of whatever the overall review concludes. That’s a big win for your Association because the language creating the study began with our professional staff asking key Senators to support a provision in what became the Bipartisan Infrastructure Law that would have required Amtrak to restore daily frequency to the Cardinal and Sunset Limited.
Overall, the emerging Enhanced Network map would see significant service additions for the Pacific Northwest, the Southwest, and the Mountain West. Multiple options would exist for getting from Chicago to Florida and other Southeast destinations without going through New York or along the East Coast.
A new Enhanced National Network could more than double access for residents of Tribal lands, reaching two million more people. There could be a 106 percent increase in access for Tribal residents living below the poverty line, as well as a 63 percent increase in access for those in healthcare deserts and transportation-disadvantaged areas flagged under the Dept. of Transportation’s Justice 40 initiative. The new network could make 73 additional medical centers reachable by passenger rail.
Service for rural residents living in “areas of persistent poverty” would rise 61 percent, and another one million rural Americans living below the poverty line would have access to passenger rail. Another nine million Americans living in rural areas would get access to long-distance service, along with five million more living in rural transportation deserts as identified in the DOT’s Justice 40 initiative.
Some 600 more universities and colleges would see new service, opening up the network to two million more students. There would also be an 18 percent increase in access to National Parks, with 11 more parks joining the 62 parks already reachable by Amtrak.
We will do all that we can to help FRA prepare this incredibly consequential review and report to Congress, with an eye toward recognizing that this is, at its core, a political document and not an engineering report. We think it’s important that Congress gets a clear and inspirational roadmap from FRA on how best to expand service and to unlock the economic boon that will result if we just have the discipline to act over the long term.
5. Once again, a single person’s vote could kill Gulf Coast service
It took nearly two decades, two trips to the Supreme Court, millions of dollars’ worth of motion practice enriching private law firms up and down the Mississippi River, and a formal petition by Amtrak to the Surface Transportation Board to get us to where train service wiped out by Hurricane Katrina could be partly restored between New Orleans and Mobile.
In a delicate and still-secret negotiation, the four “parties” in the Gulf Coast STB case – Amtrak, Norfolk Southern, CSX, and the Port of Alabama – agreed to take their bitter dispute out of the public spotlight and away from the incisive scrutiny of STB and its Chair Marty Oberman in exchange for STB holding its proceeding in the case in abeyance while they work it all out to get trains running again.
Last summer, it looked as if the final piece of the puzzle – getting the required Federal CRISI grant to finish up work in Mobile for passenger facilities – was finally going to come together, with the early Fall award of $178 million to the project to get the facility and platform built.
But now the Mobile City Council must once again weigh in, because there’s a new lease to be signed in Mobile. And once again, with two likely No votes on the seven-member Council – including perennial opponent Councilmember Joel Daves – a single additional No vote could stop everything in its tracks.
So far, no vote has been scheduled, but the action is heating up as the Council begins deliberating on the lease. An entire project of national significance involving three states could once again come down to one person on the Mobile City Council.
Your professional staff was here once before a couple of years ago, and with your help we were able to sway that fifth vote. But this is a different Council, and a different issue, so we’ll have to gird up again. I hope you’ll be with us.
6. Will the STB fully vindicate passengers’ right to be on time?
If the procedural schedule in the docket holds up, the Surface Transportation Board could make a finding on Union Pacific’s responsibility for the Sunset Limited’s horrible delays sometime around March or April this year, and there’s a possibility – though not strong – that a second phase in the proceeding to assess damages and remedies could wrap up by the end of 2024.
Fortified by the strong new customer-service rules we helped to draft with the Federal Railroad Administration, Amtrak filed a blunt attack in 2022 on the pervasive delays plaguing long-distance trains, fingering dispatching practices and the reliance on extra-long freight trains driven by precision-scheduled railroading, or PSR. Two long-festering controversies are effectively on trial in this proceeding: one, who’s really to blame for chronic lateness and two, whether extra-long trains can ever be made to work for shippers and passengers as well they do for accountants and investors.
As is typical in complex cases, there’s plenty of blame to go around. But the evidence piling up in the docket suggests that while Amtrak isn’t completely in the clear on the Sunset’s problems, overwhelmingly the Sunset’s on-time performance was – and is – in Union Pacific’s hands.
For what it’s worth, Union Pacific has been doing a better job of late with the Sunset Limited. This proves that, number one, better on-time performance is actually possible, and number two, that these problems can be resolved through negotiation and creative engineering and dispatching. An adversarial proceeding might not be needed if everyone sat down in good faith to try to work out the issues.
As was the case with Amtrak’s Gulf Coast restoration petition before the STB, I suppose it’s possible that here, too, we could see some kind of negotiated settlement between Amtrak and Union Pacific. If that happens, the STB might not rule at all...just as it has stayed the Gulf Coast proceeding while Amtrak, Norfolk Southern, CSX, and the Port of Alabama keep working together to get that long-awaited service between New Orleans and Mobile up and running.
If there’s no ruling, then from a legal point of view there’s no precedent. We’d have a law on the books which unambiguously gives Amtrak passengers the right to be on time, enforced through a regulatory process the Supreme Court tweaked once and then chose not to revisit. If we get on-time trains as a result then on balance it’s probably positive for America’s rail-traveling public. But it also leaves the door open to future challenges about whether we really ought to have the right to be on time while paying for access to freight rights-of-way.
Regardless of the outcome, UP says it plans to challenge STB’s authority to award damages in connection with metrics and standards investigations, claiming the 2008 Passenger Rail Investment and Improvement Act’s language granting STB that authority is unconstitutionally vague. And that brings us to our seventh item to look for...
7. Do you care about commercial fishing? You do now.
This term, the Supreme Court is expected to rule on a case called Loper Bright Enterprises v Raimondo, which on its face poses a question about commercial fishing but which actually could torpedo, or at least hobble, the Federal Railroad Administration and the Surface Transportation Board as those agencies work to enforce passenger rail rules and standards.
To vastly oversimplify the bulging docket at the Supreme Court, Loper Bright asks the Supreme Court whether commercial fishermen can be required to pay for Federal monitors on their fishing boats. The National Marine Fisheries Service – a Federal agency – says yes, they can, it’s a cost of compliance that businesses bear, just as any other industry has to bear some of the costs of complying with rules. This is set out in something called the Magnuson-Stevens Act, which covers how fisheries in Federal waters are managed. One of the things that law says is that the National Marine Fisheries Service may require fishing boats to carry Federal observers to make sure they’re following the regulations preventing overfishing.
So, Jim, what does that have to do with trains?
Well, for the past four decades disputes over the ways Federal agencies carry out their regulatory duties have been handled by the courts’ applying something called the Chevron Doctrine, named for a 1984 case pitting Chevron against the Natural Resources Defense Council. The Chevron court held that if Congress was silent or ambiguous in a particular law, courts should defer to Federal agencies’ expert opinions on regulatory interpretation of that law so long as the agency’s interpretation is reasonable.
Here, the commercial fishing operators are saying that if you apply the Chevron deference test, the National Marine Fisheries Service was out of line in requiring industry to pay for the onboard inspectors, arguing that their interpretation was not reasonable under the Chevron standard.
If their argument stopped there, I wouldn’t be writing this. Their next argument to the Supreme Court can be paraphrased “and hey, SCOTUS, while you’re at it, maybe the whole Chevron deference thing should go away.” The principle of Chevron deference on which everyone in rail has relied for some 40 years is what gives us the ability to ask Federal agencies to fight for your right to be on time, for your right to pay a fair price, and for your right to ride safe trains.
When the Supreme Court in 2022 came up with an idea called “major questions doctrine” to dismantle the Environmental Protection Agency’s ability to write and enforce powerplant regulations, I wrote a blog post explaining why the 40-year-old Chevron doctrine probably protected things like the Surface Transportation Board proceedings on Gulf Coast restoration or late trains investigations because Congress was definitely not “silent” on what they expected STB to do or the methods they would use to do it.
In the absence of Chevron deference, however, it’s plausible that STB decisions on the things that we care about could be gutted.
I’ve said for some time that the new, Trump-shaped Supreme Court is not a six-three court as the news media would have you believe. It is more like a three-three-three court. The Chief Justice, John Roberts, and Justice Brett Kavanaugh spent their pre-SCOTUS time on the D.C. Circuit Court of Appeals where a lot of Chevron-related jurisprudence has happened. Justice Amy Coney Barrett has little history with Chevron deference cases, and Justices Thomas, Alito, and Gorsuch have all telegraphed their opposition to Chevron.
Given these dynamics, it’s very possible that the Court could sidestep the larger Chevron issue and simply decide on the merits whether the Marine Fisheries Service overstepped. Or, they could chip away at the standards in Chevron deference tests without throwing out Chevron outright. But this Court has also shown a willingness to dispense with precedent if it seeks a particular outcome, and overturning Chevron is at least a possibility. This is one that all passenger-rail supporters ought to watch very closely.
Happy New Year 2024!
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