Will Congress Clarify Amtrak Regulatory Authority?

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By Stephanie Beasley

May 11 — The Department of Transportation doesn't have an easy road ahead if it wants to challenge a recent appeals court decision to strike a 2008 law that granted Amtrak the authority to work with DOT to develop regulations.

Congress might need to step in and fix the law, which the court said was unconstitutional, one attorney said. And though it's unclear when or if that might happen, a Senate Commerce, Science and Transportation Committee aide said there are plans to meet with federal regulators on the issue.

A U.S. appeals court in Washington last month ruled the Passenger Rail Investment and Improvement Act of 2008—a law that granted Amtrak authority to work with federal regulators to develop performance metrics—was unconstitutional (See previous story, 05/02/16). The decision was a win for the Association of American Railroads, which has argued that Amtrak was a private entity that should not be allowed to regulate its competitors.

Freight and passenger trains share railroad tracks, many of them owned by the freight industry. And though by law Amtrak trains are prioritized over freight trains when operating on freight tracks, splitting the railroads can contribute to passenger train delays.

When it weighed in on the case last year, the U.S. Supreme Court determined Amtrak to be a government entity. But the federal appeals court ruled on April 29 that it was unlawful to allow “an economically self-interested actor to regulate its competitors” (Association of American Railroads v. United States Department of Transportation).

A Cloudy Legal Outlook

DOT is likely to challenge the decision but the next legal steps could be complicated and could yield a result that would not be favorable to the agency, according to an attorney following the case.

DOT could petition the Washington appeals court to rehear the case en banc. In that scenario, the case would be brought before a panel that would include all of the active judges in the D.C. circuit, said Andrew M. Grossman of Baker Hostetler LLP. If the court votes to hear the case en banc it would have the effect of vacating the appeals court decision, though he said the make-up of the panel might not work in DOT's favor.

Chief Justice Merrick B. Garland has recused himself from the case as he waits for the Senate to consider his Supreme Court nomination. In Garland's place would be two senior judges—Stephen F. Williams and David B. Sentelle—who in 2013 ruled it unconstitutional for Amtrak to wield regulatory authority.

“They would lose one judge perceived to be friendly to them and gain two that are unfriendly,” Grossman told Bloomberg BNA. “It appears that you would have an equally split court.”

Grossman provided a similarly cloudy forecast for a scenario in which the D.C. appeals court rejected DOT's bid to have the case heard en banc and the agency petitioned the Supreme Court to rehear the case. At the end of the day, the justices are very concerned about the separation of powers, so there is a good chance the appeals decision will be affirmed, he said.

The Federal Railroad Administration's press office did not respond to a request for comment on whether it would pursue further legal action.

What Can Congress Do?

Grossman said he was surprised by the amount of attention the case had received given it represented a fairly small issue but that it highlighted how Congress “passed the buck” to Amtrak through a constitutionally shaky statute instead of giving DOT the authority to develop performance metrics on its own and directing them to consult with Amtrak.

If the issue is to be resolved, Congress may need to step in again, he said.

The House Transportation and Infrastructure Committee did not respond to a request for comment. But a Senate Commerce Committee aide told Bloomberg BNA that the panel was planning to have staff level conversations with federal regulators about the issue over the next few weeks.

Legal uncertainty about Amtrak's regulatory authority could have long-term impacts. For example, the recent appeals court decision has added fuel to a flaming debate between Amtrak and the Association of American Railroads over how the Surface Transportation Board should define on-time performance. STB is proposing regulations that could result in additional mandates that would give passenger trains priority on freight railroad tracks. The board also is considering launching an investigation into the causes of late arrivals for Amtrak trains.

In a recent letter, AAR argued that the appeals court decision supports its argument that STB does not have statutory authority to define on-time performance. Amtrak the week of May 9 responded with a letter saying the appeals court decision did not address STB's authority and thus should not be seen as supporting AAR's position.

To contact the reporter on this story: Stephanie Beasley in Washington sbeasley@bna.com

To contact the editor responsible for this story: Heather Rothman at hrothman@bna.com

For More Information

The letter from AAR to STB is online here: http://src.bna.com/eTE.

For More Information

Amtrak's letter to STB is available here:http://src.bna.com/eTF.