The Empire Builder dilemma

We all know about “taking the Fifth.” It’s our right under the Fifth Amendment to the U.S. Constitution not to be compelled to testify against ourselves. In other words, a court cannot force us to admit to driving 60 mph in a 45-mph zone (or something worse). That amendment has another, less-well-known clause, which says government cannot take away our property without just compensation. Lawyers know this as the “Takings Clause.” The Fifth came to mind the other day as I rode Amtrak’s Empire Builder from Seattle to Chicago. I’ll get to my point, but first the experience.

Our eastbound Builder was more than two hours late leaving Seattle. The reason was the four-hours-late arrival of No. 7, its westbound counterpart, and the need to turn, clean, and restock the equipment before boarding passengers for the run back to Chicago.

The next morning I began to understand what had befallen No. 7 and practically every other recent edition of this train, including our own. Essentially, the Empire Builder is being nicked to death despite good dispatching by the host railroad. BNSF Railway across the northern tier of states is busier than ever in its history. It is seeing as many as 48 trains a day on what is predominantly a single-track railroad in Washington, Idaho, Montana, and western North Dakota. This is the upper-upper end of what you can run over single track.

Not once did I observe our train take siding for a BNSF freight. Still, we suffered from following freights on approach signals until they could clear to let us by, waiting briefly for opposing freights to appear and take siding or halting while a train longer than the siding it occupied snaked its way out. To be sure, we were also slowed by “heat orders” necessitated by 100-degree afternoon temperatures and by the fact that our train had to be recrewed short of Minot, N.D.

All of this did terrible things to our schedule-keeping. By the third morning, as the train approached Devils Lake, N.D., we were more than eight hours late (the next day’s eastbound Builder was even later). But imagine what the Empire Builder does to BNSF’s freights every day. The Amtrak Improvement Act of 1973 reads: “Except in an emergency, intercity passenger trains operated by or on behalf of [Amtrak] shall be accorded preference over freight trains in the use of any given line of track, junction, or crossing.”

BNSF appears totally committed to obedience of this law but doing so devours the capacity of this route. It’s not just that freights give way; whizzing along at a 79 mph versus 55 or 60 for the freights, the Empire Builder eats capacity as if it were two or three freights, Six high-priority Z trains prowl the northern Transcon every day, and I don’t think a single one of them that I observed was moving as we went by. One Z train was sandwiched between two stopped manifest trains, all making way for our Builder.

Obviously, Amtrak pays BNSF for the right to run trains over the freight railroad. But whatever it pays is but a fraction of the cost in delays to its own trains incurred by BNSF. Were the northern Transcon double-tracked all the way, these delays would obviously be minimized. But at $3 million or more a mile, double tracking consumes capital like a dry sponge, and it’s not Amtrak’s capital, either.

So now to my point: Isn’t it fair to say that Amtrak, which the U.S. Supreme Court in 2015 decreed to be an arm of government, is confiscating the property (track capacity) of host railroads? And if it is, shouldn’t the freight railroads be fairly compensated for the delays to their freights caused by the loss of this capacity? Try as I might to say otherwise, I am forced to answer “yes” to both questions.

A very senior railroad attorney tells me that as a law student at the time of the 1973 legislation about priority for Amtrak trains, he wrote the Association of American Railroads, urging it to file suit based on the Takings Clause. The AAR obviously did not, perhaps fearing public backlash. Maybe that’s still the case. But back the freight railroads against the wall hard enough, and such litigation is bound to occur. I almost wish it would. The political bargain that created Amtrak in 1970 required railroads to pay millions to be relieved of their passenger train responsibilities. The 1973 law giving Amtrak trains priority wasn’t part of that deal.  

The way things are now, with most routes used by Amtrak fully subscribed by freight trains, it’s almost impossible for Amtrak to even suggest running additional passenger services. The host railroads aren’t about to let the reliability of their freight services become even more untenable. So the growth of rail passenger traffic outside the Northeast Corridor is practically nil. On the other hand, if we dealt with this issue honestly (as I think our Constitution requires) and paid for the capacity that passenger trains consume, the host railroads would be more open to adding Amtrak frequencies.

For me, none of this is easy to say. I look forward to being aboard passenger trains as much or more today than I did as a kid. If Amtrak were compelled to pay for the track capacity the Empire Builder devours, there would be no Empire Builder. But arrivals four and eight hours late, which seems to be the rule today, are not the answer, either. We need better solutions than beating freight railroads over the head.