STB Should Stop Letting Freights Run Out the Clock

by Jim Mathews / President & CEO

If there’s one thing many freight railroads seem to be good at, it’s foot-dragging.

On Monday it will be six months since Amtrak filed its first-ever Section 213 late-trains complaint with the Surface Transportation Board, spotlighting Union Pacific’s abysmal handling of the Sunset Limited as a test case for the new passenger-service metrics and standards that Amtrak, the freight railroads, and Federal regulators all agreed to live by.

When Amtrak filed its complaint in December it asked for a quick 60-day resolution to what is clearly and unmistakably a consistent failure to meet the standards now legally required for host railroads. The Dept. of Transportation and the Federal Railroad Administration made similar pleas and FRA attorneys reminded the STB in April that neither Congress nor the rules-writers at DOT intended every on-time performance complaint to involve years-long litigation and millions of dollars’ worth of white-shoe motion practice.

And yet, here we are. The American Association of Railroads’ most recent filing into the Union Pacific Section 213 docket (NOR 42175 for those of you playing along at home) urged a go-slow approach, with plenty of opportunities for Union Pacific and any other railroad to question whether the metrics gathered by FRA are good enough, or whether the rules should be rewritten, or whether the rules even apply to this route at this time.

History tells us this is not a good-faith argument. These rules finally hit the Federal Register during the waning days of the Trump Administration in 2020 after the freight railroads spent 15 years opposing them in any way possible, including spending time and treasure to make several trips through the Federal court system and twice heading to the Supreme Court.

In the end, then-FRA Administrator Ron Batory – a 45-year career railroader who could hardly be called an agent of the “Deep State” – worked to get everyone to hammer out a set of rules the Class I railroads claimed they could live with.

Now, the very first time Amtrak takes an egregious offender to task using the new statutory process created for this very purpose, the freight railroads are doing everything they can to upend what they agreed to. I guess this should not be surprising, since they have also consistently thumbed their noses at the 1971 Grand Bargain that created Amtrak in the first place. To remind, that bargain meant that the U.S. taxpayer would permanently absorb the private railroads’ legal common-carrier obligations, and their operating liabilities, in exchange for letting passenger trains go first on those railroads’ tracks. It remains one of the biggest taxpayer-funded bailouts of a private industry in U.S. history.

Here are some pretty obvious facts which don’t require months of discovery and litigation to establish. When Amtrak filed its complaint in December, the Sunset Limited was one of the worst-performing trains in the entire National Network. As of today, the Sunset Limited is STILL one of the worst-performing trains in the entire National Network. The FRA's own quarterly data confirm this.

The April host railroad delay report (the most current available) shows that the typical Sunset passenger was late 63 percent of the time, and was an average of an hour and a half late getting to their destination. Freight-train interference is by far the largest single category of delays, and host railroads are responsible for more than two-thirds of all delays.

Amtrak equipment issues have grown in their contribution to Amtrak-caused delays, but it’s still pretty minimal – in single-digit percentages compared with freight-train interference, which accounted for 42% of all host-railroad delays in the past 12 months, and 28% of the total delays across the board.

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. Amtrak claims that freight trains longer than 10,000 feet can’t take a single siding for more than 450 miles along the Sunset Limited’s route.

This operating model forces Amtrak’s shorter, faster passenger trains to follow long, slow-moving freight trains, imposing many hours of delay. Amtrak data show Sunset trains are forced to follow freight trains 3.9 times per trip on UP tracks, imposing an average delay of nearly an hour and a half each time. In fact, throughout Fiscal 2022 Sunset Limited trains had to wait behind freight trains an average of 15.5 times on every single trip, sitting around while freight trains finished traversing UP’s rail lines, crossings, or junctions.

This is why Amtrak accuses UP of “routinely” prioritizing freight trains over passenger trains, despite the long-standing legal requirement to give passenger trains preference. Whether resolving meets and passes, determining access to main lines, or otherwise failing to ensure that tracks are available for the scheduled and infrequent transit of Sunset Limited trains, UP is doing a “clearly substandard” and “abysmal” job, Amtrak says.

The numbers show that today the Sunset is still struggling to get fare-paying passengers to where they want to go within anything better than an hour to two-hour window. The data are there, and they are clear. For the sake of the American passenger, who supported massive Federal infrastructure investments to make trains better, we really hope the STB is able to end the debate by ruling in the next few weeks, once and for all, that if you’re a freight railroad you can’t build your business model around flouting a nearly 50-year-old law.

Please let’s just get this done.