UP Can Fix Sunset Preference Problems, Amtrak Tells STB

By Jim Mathews / President & CEO

This week Amtrak renewed its claim with Federal regulators that Sunset Limited host Union Pacific illegally prioritized freight over people for at least four quarters through September of 2022.

In its opening statement Monday to the Surface Transportation Board, Amtrak once again blamed UP’s individual dispatching decisions along with its systems, policies, and practices for profound and abysmal delays on the Sunset. Amtrak said UP’s freight-train interference made nearly two-thirds of westbound Sunset passengers more than an hour late, with many delayed by more than three hours. Eastbound trains faced similar issues, with more than half of passengers delayed, and a fifth arriving at their destinations three hours late or more.

“If air traffic controllers regularly held passengers on the ground to allow cargo planes to take off first, or if trucking companies regularly stopped big rigs on main highways blocking automobile passengers from passing around them, or if cruise ship passengers regularly were denied access to port facilities by large cargo ships, no one would think such practices were acceptable. Yet, somehow, it has become not just accepted, but expected, that interference from freight trains regularly will cause delays to Amtrak passengers,” Amtrak told STB in its long-running late-trains case against UP.

“That should end now,” Amtrak declared.

Your Association wholeheartedly agrees.

For decades, the American people have consistently elected enough members of Congress who support passenger rail to ensure Amtrak’s survival and funding. And for the past decade, Americans have consistently elected members of Congress who support – and have funded – actually expanding passenger rail, strengthening Amtrak’s long-distance service, and protecting the legal rights of America’s passengers to be on time. Those Americans deserve to have their votes fulfilled through the STB holding Union Pacific accountable.

When Amtrak filed its original complaint in late 2022 – the first formal complaint under the Federal Railroad Administration’s new passenger-rail metrics and standards, which took effect four years ago – it asserted that UP had “institutionalized and operationalized practices” which systemically violate the nearly half-century old law on Amtrak preference.

Since then, the docket at the STB for this proceeding has bulged with dense, complicated, but data-rich filings from all of the parties involved, answering expert questions from STB staff to get to the bottom of the perennial problem of freight-train interference. What’s been filed during the past year or so for the most part strongly buttresses Amtrak’s original argument, but this week Amtrak also reminded Board members about the bigger picture.

“As the Board continues its examination of the relevant metrics, standards, delay data, root causes, and regulatory reporting, it is critically important to remember that this proceeding is about people, and about Congress’s determination that ensuring Amtrak’s passengers arrive at their destinations on time should be a national priority,” Amtrak said in this week’s filing.

Amtrak points to UP’s failure to align the length of its giant precision-scheduled-railroading (PSR) trains with its sidings, the failure to plan for expiring crews, the failure to properly coordinate and communicate with other railroads, and the failure to properly route Amtrak trains.

Union Pacific routinely runs freight trains as long as 12,000 feet, among the longest of any Class I railroad. But even as UP has made its trains longer and longer, it hasn’t invested in building longer sidings to handle them, choosing instead to spend billions each year on stock buybacks. For more than 450 miles along the Sunset Limited’s route, there’s nowhere for a freight train longer than 10,000 feet to take a single siding.

Amtrak asked STB this week to order a long list of pretty straightforward steps to ease the freight-train interference problem. Reviewing the list, it amounts to actions that shouldn’t be particularly burdensome or onerous for a well-functioning railroad – and that’s a key requirement of the underlying law governing how passenger trains run on host railroads, whether the host can “reasonably” solve any preference problems found.

Amtrak wants STB to order that “unless there is an emergency” rail carriers shouldn’t run trains longer than available sidings if they know an Amtrak train will need to run there. STB should also order that rail carriers shouldn’t dispatch freight trains ahead of Amtrak trains if they’re pretty certain the Amtrak train will catch up to the freight train, Amtrak said, and also order that dispatching decisions – and the software used to help planners and dispatchers schedule and release trains – should be based on Amtrak’s long-standing legal right to preferential dispatching. Amtrak also wants STB to tell rail carriers with Amtrak trains running in their territories to more tightly manage crew hours so that crews don’t time-out and block Amtrak trains from moving past an outlawed crew.

Not particularly radical, especially considering that these operating conditions and restrictions have been law for half a century.

What’s at play here are two laws and a set of regulations.

The first, dating back to Amtrak’s creation in 1970, grants Amtrak trains preferential dispatch over freight lines as a quid pro quo for the U.S. taxpayer bailing out the private railroads by creating Amtrak to absorb the debts and liabilities of passenger service.

The second is the 16-year-old Passenger Rail Investment and Improvement Act, which recognized the problem of late trains and directed that new regulations be put in place to address that problem and explicitly granted the Surface Transportation Board the authority to investigate whether preference violations occurred, whether those violations could be avoided or corrected by the host railroad, and how to remedy those violations if they’re found.

STB wasn’t able to fully vindicate these rights until the Federal Railroad Administration could implement regulations covering these “metrics and standards” for passenger rail – and that didn’t happen until the end of 2020, because the freight rail industry fought ferociously all the way to the Supreme Court to block those metrics and standards. The freight railroads’ 2019 loss at the Supreme Court set the stage for those rules get drafted and take effect.

It was under those rules that Amtrak filed its 2022 complaint.

In August, the STB directed Amtrak to file this week’s opening statement brief, and STB gave the host railroads until December 23 to reply. Non-party replies will be due on January 22, 2025, and Association members, donors, and supporters should know that we expect to file such a reply to the docket. The host railroads have until February 21st to reply to all the briefs filed in the case.

I’ll say this again: it's hard to understate just how important this proceeding is for anyone who cares about making our trains run on time. This will be the first time that a regulator will actually apply the metrics and standards guaranteeing passengers’ rights to be on time, which themselves only took effect at the end of 2020 after some 15 years of litigation that included two trips to the Supreme Court.

A lot has happened in the two years since Amtrak filed its 2022 complaint. UP has made real improvements to the Sunset’s timekeeping – good enough that the Sunset made the Federal Railroad Administration’s “most-improved” list earlier this year. The Justice Dept. has opened a second front on late trains and preference, filing a civil action in a D.C. Federal Court this summer against Norfolk Southern alleging preference violations on Amtrak’s Crescent route. And the U.S. Supreme Court clipped the authorities of Federal agencies like the Federal Railroad Administration and the STB in its Loper Bright Enterprises decision on Chevron Deference, although there are distinct differences in how the Loper Bright reasoning would be applied to STB versus the FRA.

If you’re tired of getting stranded on late trains, you really need to keep up with this very arcane case. Rest assured that your Association is doing that on your behalf.