The Supreme Court could change the face of American intercity passenger rail. Let’s hope it doesn’t.

The US Supreme Court’s decision early next year in the dispute over on-time performance metrics and standards for Amtrak trains using freight railroads’ tracks could have implications beyond the fate of those standards, depending on how the case (US Department of Transportation v. Association of American Railroads, 13-1080) is decided. If the court issues a general interpretation of Amtrak’s status — that it should be treated as a government agency for most intents and purposes, or as a private company — Amtrak stands to lose distinct advantages it enjoys by being a private entity in some senses but a public one in others. For this reason, passenger train advocates are urging a narrow ruling that allows the metrics and standards — developed jointly by the Federal Railroad Administration and Amtrak in 2011, pursuant to Section 207 of the Passenger Rail Investment and Improvement Act of 2008, but invalidated by a 2013 US Court of Appeals ruling — to stand and lets Amtrak trains operate closer to their published schedules.

As the National Association of Railroad Passengers, which has filed a brief with the Supreme Court in support of the US DOT’s position (and on whose Council of Representatives I serve in a volunteer capacity), rightly notes, “Since the metrics were struck down by the court of appeals, reported freight interference incidents nearly tripled, and Amtrak’s on-time performance plummeted to 42 percent. The long distance trains have been the most hard-hit; in a particularly extreme case, the on-time performance of the Capitol Limited plummeted to 1.6% in July.” With the 2011 metrics and standards unenforceable, Amtrak is left with only limited and cumbersome means of asserting the statutory priority given to its trains over freight trains in Section 24308 of Title 49, United States Code.

The Association of American Railroads’ only point of contention is that Section 207 gives Amtrak (jointly with the FRA) the ability to write regulations, an authority that private, for-profit companies may not exercise. One way to get around this would be for Congress to change the law to give FRA the sole authority to write the rules, perhaps in consultation with Amtrak but not with Amtrak having legal leverage over the outcome. But since any significant action from Congress on passenger rail policy in the near term is unlikely (the reauthorization bill passed by the House Transportation & Infrastructure Committee in early September makes no changes to how Amtrak’s on-time performance is enforced), passenger advocates are looking to the Supreme Court to rule that Amtrak is justified in exercising authority over its own trains’ performance, jointly with the FRA.

However, if the Supreme Court rules more broadly on Amtrak’s status, whether as a government instrument or a for-profit corporation, either outcome would give the private host railroads less incentive to cooperate with the passenger carrier. If Amtrak is held to be a government agency, then its trains’ use of private railroads’ tracks could be held as a “taking of private property for public use” under the Fifth Amendment to the US Constitution, for which the railroads could demand “just compensation” (likely a higher payment from Amtrak or the government than they are currently receiving, which only covers the avoidable cost to the host railroad of accommodating Amtrak trains). The railroads could even challenge the government’s very ability to compel them to host passenger trains, or make the legal case that a government service shouldn’t be allowed to compete with private industry. (Such a case would stand on shaky ground, though, as there are many other areas in which courts have sanctioned government competition with private businesses, such as in health care, education and housing.)

Conversely, if Amtrak is held to be a private company for all or most purposes, then the passenger carrier would lose any legal leverage over the host railroads, which would be free to refuse to grant it access or to charge as much as Amtrak would agree to for such access. Government also might not be able to provide operating and capital assistance to a fully private Amtrak as directly.  In either case of a broad ruling, all Amtrak trains that use freight railroad’s tracks would be put in jeopardy.

Given that the use of freight railroad infrastructure is the most economical way to provide an expansive passenger train network (the only alternative being the very costly and politically fraught one of building separate tracks for passenger trains), the passenger’s and the taxpayer’s interests are best served, in the short term, by maintaining Amtrak’s (and perhaps other passenger train operators’) ability to use freight railroads’ tracks at a low cost and with enforceable standards for on-time performance. In the long run, the government entity sponsoring passenger trains (the states in the case of short-distance trains and the federal government in the case of long-distance trains) must be sufficiently capitalized so as to be able to enter into true public-private partnerships with host railroads on a more level footing.

If freight railroads are able to derive benefits to their own bottom lines by cooperating with passenger carriers, then the way will be smoothed for more robust, reliable and financially sustainable passenger service throughout the country. But in the meantime, freight railroads must be held to the terms of the deal they made with the government in 1970 in exchange for being relieved of the common carrier obligation to provide passenger service, which includes giving passenger trains priority dispatching over their tracks. The railroads may complain of government coercing them into accepting an unwanted burden, but it is a burden they agreed to place upon themselves in 1970. Let’s hope that, with changing attitudes and a healthier level of funding for passenger trains, railroads will come to see them as less of a burden and more of an opportunity for mutually beneficial partnerships.