RAILROAD NEWS AND COMMENTARY FROM WASHINGTON BY WES VERNON 2015: The Fate of Long Distance Passenger Rail


AUTHOR ERIC JAFFE WROTE A NOVEL about World War II. Its title was A Curious Mad- ness. It had nothing to do with passenger trains or indeed with railroads in general. Nonetheless, as he cut through a translation of thick lawyer-like judicial fog, Jaffe more recently has also quoted the justices of the United States Supreme Court. During a December high court case, some


Amtrak passengers may have viewed part of the argumentation as another form of “curi- ous madness” — i.e., the idea that long dis- tance overnight passenger trains on Ameri- ca’s rails may soon be as extinct as the stage coach, and that America must make the Hob- son’s choice between its passenger trains and its vital freight rail operations. Act 1 — It came to this? Yes, and this circumstance did not begin yesterday. Prior to Amtrak’s formation in 1971, the Class I railroads were so anxious to exit the passen- ger train business that they were begging the government in words to the effect of “Okay, already! Yes, we will let Railpax (then Am- trak’s pre-operating working title) run on our tracks. Just get the things off of our hands! Take them away from our ultimate responsi- bility. Quickly, before we go under.” The old Interstate Commerce Commission (ICC) was rejecting requests for passenger “train-offs,” all (according to the railroads) with reluc- tance and snail-paced consideration. Railroad CEOs believed such nonchalance


by the regulators reflected little concern for the persistence of continued mandatory pas- senger operations and their injurious effect on the company’s bottom line. Actual railroad passengers, by contrast, believed the “train- offs” in fact demonstrated scant consider- ation for the “public interest.” Act 2 — And this: The feds have money for


all kinds of silly things — a study of drunken monkeys, viewing trees growing upside down — stuff like that is endless. But we suppos- edly have no money to help pay for one of the three basic forms of passenger transporta- tion, notwithstanding that the other two — highways and airways actually (when added up) — cost the taxpayers more money, largely through hidden subsidies. Act 3 — Why is that? It’s just that back


in the pre-Civil War era, when railroads were invented, there was little methodology as to how to hide the true costs from taxpayers, and nobody cared since at that time the rail- road pioneers bore most of the cost, some with (others without) government help. In the following century, by the time the


two aforementioned competing modes (air- ways and highways) came into their own, their key backers had figured out all the clev- er “figuring” (i.e., hiding true costs) for which some CPAs are well-paid. Act 4 — And then, politics anyone?


Then, as sure as God made little green apples, once any government-program is created by politicians, guess what: Politics happens. That has been the case with Amtrak from Day One. That is unfortunate but alas, unavoidable


and has eased the path for tossing metaphor- ical sand in the gears of the passenger train’s very existence. That is how we got to where we


are today. It is ironic that this comes to a head during an administration claiming to champi- on passenger trains. This White House itself has been accused (rightly or wrongly) of forcing the very showdown its predecessors had studi- ously avoided. Can you say “kicked the can?” Act 5 — Its own rules? In the fall of 2008, Congress passed the Passenger Rail Improve- ment and Investment Act (PRIIA). That mea- sure (which was covered by this column at the time and in subsequent issues) asked Amtrak and the FRA to collaborate in setting stan- dards for Amtrak’s on-time performances on the tracks of its host freight railroads. That system resulted in a marked improvement in Amtrak’s on-time record. Something’s got to give: Eventually,


along the way during a years-long controver- sy, the freight voice in Washington, the As- sociation of American Railroads (AAR), com- plained that its freight operations were being put at a disadvantage in having to compete on their own tracks with Amtrak, a competitor in terms of track space (which at the time was increasingly limited by the onrush of fracking and the oil shale revolution). Government and AAR officials held some high decibel closed- door meetings at which virtually nothing was settled. A lower court ruled in Amtrak’s favor, which sent the case to the highest court in the land, where the justices are (as of this writ- ing) mulling over — on paper — the question of whether Amtrak is a part of government or a private for-profit corporation. The larger question is whether Amtrak ul- timately can be barred from operating nearly everywhere except the Northeast Corridor where it owns its own tracks. This in turn raises the question of whether a 44-year old massive passenger train-slaughtering night- mare (feared by NARP and other Amtrak supporters) will at last become reality. You would be safe in betting that attorneys for both sides are working overtime trying to fig- ure out what to do if the justices do not rule in their favor. No matter which way the court goes, the


result could be chaos. So if accounting can’t produce the desired “final result,” surely there must be a new political recourse that can. Right? Maybe not? You mean to tell me that, unlike in train operations, in govern- ment there is never necessarily an “end of the line?” Whoever heard of such a thing? Justices’ out-loud pondering: During the December deliberations by the Court, the jus- tices at times appeared stymied at having to de- termine to what extent a passenger railroad — on paper, a private company — gets to exercise government-like powers over its own regulation: • Justice Stephen Breyer had been re- searching other situations involving the ques- tion of where the private sector leaves off and the company in question then wears its public regulator hat. He cited ICANN, supposedly a private entity that works closely with the gov- ernment to manage the internet. • Chief Justice John Roberts deemed it odd


that a private company can say that, “I, a pri- vate party, get to start a governmental pro- ceeding and you have to show up to defend it.” • Justice Elena Kagan, one of the newer


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