Durbin Introduces Bill to Allow Amtrak to Sue Freight Railroads for Delays

Durbin Introduces Bill to Allow Amtrak to Sue Freight Railroads for Delays

November 22, 2019  | Jeff Davis

This week, Senate Democratic Whip Richard Durbin (D-IL) introduced legislation at the behest of Amtrak to allow the nationwide passenger railroad to sue freight railroads in federal court to enforce Amtrak’s statutory right for its trains to take preference over freight trains when operating on freight railroad tracks.

The bill (S. 2922) is not yet in print from GPO but the text was printed in the Congressional Record here starting on page S6721.

Federal law (49 U.S.C. §24308) states that “Except in an emergency, intercity and commuter rail passenger transportation provided by or for Amtrak has preference over freight transportation in using a rail line, junction, or crossing…” But Amtrak’s remedies, if not given preferential treatment, are generally confined to complaining to the Surface Transportation Board, which has been paralyzed on this issue because of a running 10-year court battle over whether the process by which the STB jointly developed on-time performance metrics with the STB and Amtrak was constitutional. This case was decided by the Supreme Court not once, but twice, and the Supremes recently denied a third appeal, clearing the way for new metrics to be written, which will take even more time.

It is possible for the Justice Department to go to court on Amtrak’s behalf to enforce Amtrak’s right of preference, but that has only happened once in Amtrak’s history, in 1979.

The bill adds a key new sentence to §24308(c): “Amtrak shall have the right to bring an action for equitable or other relief in the United States District Court for the District of Columbia, or in any jurisdiction in which Amtrak resides or is found, to enforce the preference rights granted under this subsection.”

At a hearing last week, Amtrak CEO Richard Anderson asked Congress to change the law to give Amtrak the ability to take its host railroads to court directly to enforce its right of preference.

Enter Senator Durbin and his bill. Durbin’s press release announcing the bill’s introduction contains a fawning quote from Anderson: “Some railroads over which Amtrak operates have ignored the passenger preference law for far too long, delaying our customers by more than 1 million minutes last year. Thank you, Senator Durbin, for introducing the Rail Passenger Fairness Act. It is a critical piece of legislation and we look forward to working with Congress to advance its consideration. This bill puts people first and helps us get our customers where they want to go on-time.”

Durbin represents Chicago, which has unique freight rail congestion issues since so many cross-country lines converge there (not to mention local commuter rail services operating on those lines as well). Here’s a rail line map from the Federal Railroad Administration GIS portal (freight lines in red, commuter lines in yellow):

Consistent freight rail delays mean consistent Amtrak delays. Durbin got a provision in a recent appropriations law ordering the Amtrak Inspector General to study this issue. That report was issued on October 14 and indicated that Amtrak on-time performance on its Illini and Saluki trains (between Chicago and downstate Champaign-Urbana and Carbondale, respectively) was particularly woeful, with the northbound Illini in particular only on time 6 percent of the time (measured as being within 15 minutes of schedule), with 21 percent of trains delayed more than one hour. Amtrak blames host railroads for about 59 percent of its delays, system-wide.

The Amtrak IG report put a dollar amount on the cost of those delays, some of which is passed on to federal taxpayers: “In the short term, we estimated that improving OTP [on-time performance] by five percentage points on all routes would result in $12.1 million in financial benefits in the first year. These benefits would include $8.2 million in reduced costs and $3.9 million in increased revenue. In the longer term, if OTP on long-distance routes could improve to 75 percent and be sustained at that level for at least a year, the company could realize an estimated $41.9 million per year in cost savings, and a one-time savings of $336 million by reducing equipment replacement needs.”

Freight railroads can be expected to vigorously oppose the Durbin bill, but you can expect this issue to be raised next year, when Congress reconsiders railroad policy as part of the larger surface transportation reauthorization bill.

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