The struggle for on-time trains continues

Last week's Eighth Circuit US Court of Appeals ruling invalidating passenger train on-time performance standards enacted by the Surface Transportation Board means that Congress must act in order for there to be a mechanism for fixing ongoing failures of host railroads to keep passenger trains running punctually. The STB wrote its definition of OTP — which considered a train’s punctuality at all stations, not just its final terminus — after the DC Circuit overturned the standards that the Federal Railroad Administration and Amtrak jointly wrote pursuant to Section 207 of the 2008 Passenger Rail Investment and Improvement Act (PRIIA). 

That section, which mandated the formation of a plethora of performance standards covering more than just OTP, was found to be an unconstitutional granting of regulatory powers to an entity, albeit a governmental one, that also participates in the industry being regulated. Had Congress simply omitted four words from the law, “and Amtrak shall jointly,” there would have been no legal problem as the FRA would have had the sole power to write the metrics and standards.

For now, the only recourse passenger train operators have when their trains are routinely delayed by host railroads due to factors within the host’s control is to exercise whatever penalties are built into their operating agreements with individual railroads. These agreements are private contracts whose contents are not made available to the public. It is unclear whether the STB has the authority to investigate complaints and prescribe remedies under the current arrangement. The 1973 amendment to Amtrak’s natal statute giving the carrier dispatching preference over freight trains still stands, but it is toothless and doesn’t apply to passenger trains not operated by Amtrak.

Congress is not likely to act on this until 2021, as the current authorizing policy for intercity passenger rail (last year’s FAST Act, which did not alter PRIIA’s metrics & standards language) does not expire until Sept. 30 of that year, and 2021 is not an election year. The next ICPR law should either spell out, or give FRA or STB guidelines for developing, a set of minimum performance metrics that apply to all passenger train operators, not just Amtrak. This will ensure that Amtrak trains are not always given preferential treatment over other passenger trains that share the same track, be they commuter trains or privately-operated intercity trains. PRIIA Sect. 207 erred in prescribing standards in a way that benefitted only Amtrak, leading commuter agencies and independent operators to join with the freight railroads in the successful lawsuit opposing the law.

Reliability and frequency are the two most important components of a passenger train service that can win travelers away from cars and airplanes. Even if a train has the most comfortable and attractive equipment, fast on-board Wi-Fi, consistently excellent customer service and other amenities, if it cannot be expected to arrive within a half hour of its schedule most of the time and if there are only a limited number of departures, the train will lose potential riders’ business to other modes.

There are many corridors where the condition of its infrastructure (in most cases a mere shadow of what it once was) leaves a host railroad unable to accommodate the level of passenger service the public demands without disproportionately hampering freight service. In those cases, public entities should put forward sufficient funds to make upgrades necessary for the line to be more fluid — which doesn’t mean that governments should give in to the host railroad’s every demand. Instead, both parties should negotiate earnestly to reach a compromise, and freight railroads should be willing to kick in funds proportional to the benefit of additional capacity and fluidity to their freight operations. Even if that compromise results in passenger train schedules that are generously padded, as long as the travel times are reasonably competitive with driving, it is better for trains to run mostly on-time on a longer schedule than to have a shorter schedule but mostly run late. 

Some will argue that metrics for passenger trains’ timekeeping, incentives for good dispatching and penalties for poor performance should be purely contractual matters to be negotiated between the passenger train operator and the host railroad. The reasoning goes that not having rigid requirements from on high allows the host-tenant relationship to be less adversarial. I agree that, in general, host and tenant railroads should strive for a cooperative, mutually beneficial relationship. But at the same time, there should be minimum standards in place to protect the traveling public using the FRA-regulated national rail network (regardless of whose train they are riding) from unnecessary and arbitrary delays caused by host railroads and some mechanism for their enforcement. Particularly when (as is the case with most passenger trains) the taxpaying public is helping to cover the service’s operating costs, there should be some way to ensure that the public is getting a reliable service for its money. 

Regulatory OTP standards should be developed with maximal input from freight railroads, passenger carriers (Amtrak and others), states, commuter agencies and other interested parties. They should leave some leeway for individual contracts to go above and beyond the minimum standards with incentives and penalties, and for innovative approaches to achieving high performance of both passenger and freight trains on shared track. But at the same time, federal law or regulation should provide a way for passenger train operators to enforce the outcomes to which they have agreed with their host railroads.

New, fairer OTP standards are one of several legislative reforms that are needed to unlock the great potential for  various public and private actors — with or without federal, state or local government backing — to start up new passenger services or enhance or supplement existing ones without encountering prohibitive upfront costs and other legal and logistical hurdles. Many of these obstacles were enacted with good intentions, but under an outdated conceptual framework or without thinking holistically about their consequences. 

Keeping passenger and freight trains running reliably — and maintaining an environment favorable to the expansion and improvement of the passenger train network — will require a collaborative and sustained effort, with elected and regulatory bodies acting in the interest of the traveling public while respecting railroads’ right to serve their customers without unreasonable impediment.