February 15, 2022

Chair DeFazio Statement at STB Hearing on Restoring Gulf Coast Intercity Passenger Rail Service

DeFazio to STB: “To avoid squandering these historic federal funds, Amtrak’s rights to access, preference, and additional trains need to be fully enforced”

Washington, D.C. — The following are remarks, as prepared for delivery, from Chair of the House Committee on Transportation and Infrastructure Peter DeFazio (D-OR) at the Surface Transportation Board’s public hearing on Amtrak’s petition to restore Gulf Coast intercity passenger rail service between New Orleans, Louisiana and Mobile, Alabama.

Video of Chair DeFazio’s statement can be found here.

Chair DeFazio:

Chairman Oberman, Vice Chair Schultz, Members of the Board, thank you for allowing me to participate in this hearing.

I am here today in support of Amtrak’s petition to restart service along the Gulf Coast. A cooperative relationship between the freight railroads and Amtrak is essential to give Americans access to intercity passenger rail transportation that is safe, efficient, and on time.

Decades ago, Congress enshrined this relationship by establishing and codifying the important rights of Amtrak to access, preference, and additional trains on freight-owned rights of way. The Surface Transportation Board is the entity Congress has made responsible for ensuring these rights are upheld.  Your affirmation of these rights is critical to restoring Gulf Coast service, and this proceeding couldn’t have come at a more crucial moment in Amtrak’s history.

Throughout my Congressional career, I have witnessed Congress chronically underfunding Amtrak and Amtrak’s struggle to enforce its statutory rights to access, preference, and additional trains.

This dual challenge could be reversed very soon. Earlier this year, Congress enacted the Infrastructure Investment and Jobs Act (IIJA), making a historic investment in our country’s rail network that goes a long way towards improved stability for Amtrak. Speaking from my 35-year tenure in Congress, I believe that this guaranteed and robust funding for the next 5 years will be revolutionary. This money is of critical importance to the future and reliability of America’s intercity passenger and freight rail network.

But for each dollar to mean something requires reasonable cooperation from all parties—which is not the case in the Gulf Coast today. To avoid squandering these historic federal funds, Amtrak’s rights to access, preference, and additional trains need to be fully enforced.

We have the greatest freight rail system in the world, and we want to keep it that way.  But we also know that the freight railroads have both the ability —and notably—the legal mandate to provide Amtrak the level of service, access, and preference it requires to operate and grow its intercity passenger rail network.

In 1970, Congress created Amtrak to relieve the freight railroads of their common carrier obligation to provide intercity passenger railroad service. In passing the Rail Passenger Service Act of 1970, Congress was clear in Section 402(b) of the law that to facilitate the initiation of Amtrak operations within the U.S. rail system, the Board shall “require a railroad to make immediately available tracks and other facilities.”[1]

Amtrak’s right of access is codified at Title 49 U.S.C. Section 24308(a), stating clearly that: “Amtrak may make an agreement with a rail carrier…to use facilities of, and have services provided by, the carrier…”.  Congress went on to update the statute, defining the Board’s role in ordering access for Amtrak. Again, 49 U.S.C. Section 24308 (a)(2) states: “the Board shall… order that the facilities be made available and the services provided to Amtrak; and prescribe reasonable terms and compensation for using the facilities and providing the services.”

Congress provided additional details in 1973, by providing that Amtrak’s right to access freight infrastructure includes a “preference over freight transportation in using a rail line, junction, or crossing unless the Board orders otherwise under this subsection.” This right is codified at 49 U.S.C. Section 24308(c).[2]

And in 1980, Congress determined that freight railroads were demanding inordinate capital investments from Amtrak to add service and mandated what is now codified at 49 U.S.C. 24308(e)—the Board’s requirement to give an expedited remedy.[3]

There is no gray area. There was no miscommunication. It is federal statute, augmented again and again for strength and clarity. Providing Amtrak access, as well as preference for Amtrak trains, were part of the bargain in the 1970s that the railroad carriers agreed to, and it remains so today. Further, there is nothing contained in statute that justifies years-long waiting periods or gross overcharges by the freights as a condition of passenger access to existing rail lines, something that has unfortunately characterized the Gulf Coast service restoration.

In the case of the Gulf Coast service, Amtrak ran regular service on this route before Hurricane Katrina hit the region in 2005. Since the hurricane, the region has been fighting to restore the route. Congress grew so exasperated with the intransigence of CSX and NS to restore this route that in the FAST Act, we directed the U.S. Department of Transportation to form a working group—including the freight railroads—to study and estimate needed investment costs.[4] 

In issuing that report, the U.S. Department of Transportation determined that reasonable compensation is approximately $120 million. But since that report was issued in 2017, CSX has given Amtrak and Gulf Coast communities the run-around instead of working cooperatively to return this service. In 2017, CSX estimated that the cost of investments necessary to return the service was $2.3 billion—a shocking number. Notably, in the CSX and NS November 3, 2021, joint filing, the railroads reduced the amount to just over $400 million.[5]

My staff reached out to CSX to ask about the railroad’s operations and cost estimates along the route to better understand its opposition, and they were told that the information was “confidential and proprietary.” And yet, CSX clearly states in their public filings to this docket that they operate just under a dozen trains per day on any portion of this route.[6]

You mean to tell me that CSX can’t handle two more trains a day on this route in either direction unless the American public invests $400 million? That is ridiculous. The lack of transparency and unreasonable demands for taxpayer funds flies in the face of the law and is all too common across the Amtrak network.

As Members of the Surface Transportation Board, you have a critical role to play in ensuring the law is followed. That includes ordering CSX and NS to allow Amtrak access to operate this service and to determine whether additional trains “impair unreasonably freight transportation.” If you determine freight transportation is unreasonably impaired, then you must decide exactly what are “reasonable terms and compensation.” The U.S. Department of Transportation has already studied this route to determine what is reasonable—it’s somewhere around $120 million. The FRA has set aside $33 million, and along with the $33 million in non-federal match, we’re more than halfway there.

Further, I was disappointed to read news reports that published an email from CSX’s CEO to its network of shippers attempting to scare them into filing opposition comments to this docket. His doomsday message is unfounded given that it is CSX that has been unwilling to share data needed for the studies it keeps advocating for, but then delays, delays, delays when it’s time for action.   

More broadly, the Class I railroads as a whole need to know STB will enforce the law and not allow them to simply use the historic passenger rail investment from IIJA for additional freight capacity. If Amtrak has to seek an STB order every time it wishes to launch a new route, add additional trains, or even just run their trains on time, then the historic investment will be derailed.

I urge the STB to be bold and send a strong message to the railroad industry that they will implement and enforce the law and ensure the bipartisan IIJA funds are not squandered.

This case, if decided in accordance with the law, will set an important precedent that could improve passenger rail service across the nation. For example, in my state of Oregon, the state and federal government invested $7 million into a Union Pacific freight rail line to speed up passenger rail service between Eugene and Portland by building a mile long siding. The siding is not even finished, and yet the taxpayer dollars may already be highjacked because the UP’s average train length is now 1.75 miles. As a result, Amtrak trains will be forced into the siding in the event of a conflict, effectively giving preference to freight. The end result is that it takes just under three hours to go 110 miles along this route, despite this and other significant public investment.

I thank the Board for holding this hearing today, and I look forward to an expeditious resolution to this matter, in accordance with federal statute.

[1] Public Law 91-518.
[2] Public Law 93–146, §10(2), 87 Stat. 552.
[3] Public Law 96-254, Title II, Passenger Railroad Rebuilding Act of 1980, “Operation of Additional Trains.”
[4] Public Law 114-94 Section 11304.
[5] CSX-NSR Opening Evidence, page 53, Docket Number FD_36496, Application of the National Railroad Passenger Corporation Under 49 USC Section 24308(e) – CSX Transportation, Inc. and Norfolk Southern Railway Company, November 3, 2021.
[6] CSX-NSR Motion to Dismiss, page 57, Docket Number FD_36496, Application of the National Railroad Passenger Corporation Under 49 USC Section 24308(e) – CSX Transportation, Inc. and Norfolk Southern Railway Company, April 5, 2021.