The Surface Transportation Board Institutes a Proceeding on Amtrak’s Application for an Order Allowing Additional Train Operations Over CSXT and NSR Lines Along the Gulf Coast

On August 6, 2021, the Surface Transportation Board (Board) issued a decision instituting a proceeding on an application filed by the National Passenger Railroad Corporation (Amtrak) regarding Amtrak’s operation of additional passenger trains over CSX Transportation, Inc. (CSXT) and Norfolk Southern Railway Company (NSR) lines between New Orleans, LA, and Mobile, AL.  Application of the Nat’l Passenger R.R. Corp. Under 49 U.S.C. § 24308(E)—CSX Transp., Inc. & Norfolk S. Ry. Co., FD 36496 (STB served Aug. 6, 2021).  In the decision, the Board also denied CSXT and NSR’s motion to dismiss the application.

Amtrak filed an application on March 16, 2021, petitioning the Board to institute a proceeding and establish a procedural schedule for a hearing on the record followed by entry of an order requiring CSXT and Norfolk Southern Corporation (NS) to allow Amtrak to provide for the operation of additional intercity passenger trains over the rail lines of CSXT and NS between New Orleans, LA and Mobile, AL on certain schedules, with such service commencing on or about January 1, 2022.  Application of the Nat’l Passenger R.R. Corp. Under 49 U.S.C. § 24308(E)—CSX Transp., Inc. & Norfolk S. Ry. Co., FD 36496 at 1 (filed Aug 6, 2021).  Amtrak also petitioned the Board to, during the pendency of the proceeding, issue an interim order requiring CSXT and NS to provide Amtrak with access to their rail lines between New Orleans and Mobile in order to perform all necessary preparations for the requested service to commence on or about January 1, 2022.  Id.  Amtrak requested the Board’s expedited consideration of the application.  Id. at 2.

In the application, Amtrak claims that, “[f]or the past five years, Amtrak has been attempting to secure access to the host railroads’ rail lines for the purpose of restoring efficient and effective intercity passenger rail service to the people of the Gulf Coast, who lost such service following Hurricane Katrina.”  Id.  Amtrak further claims that CSXT and NS have failed to agree to allow Amtrak to provide for the operation of the requested service, and “the parties remain very far apart in their position on what is required to begin operating the [requested service].”  Id. at 2-3.

On April 5, 2021, CSXT and NSR filed a motion to dismiss, arguing that Amtrak’s application should be dismissed for three reasons.  Application of the Nat’l Passenger R.R. Corp. Under 49 U.S.C. § 24308(E)—CSX Transp., Inc. & Norfolk S. Ry. Co., FD 36496 (filed April 5, 2021).  First, Amtrak’s application does not present a ripe dispute for the Board’s review.  Id. at 1.  Second, Amtrak asks the Board to take major federal actions with significant environmental consequences but fails to submit an Environmental and Historic Report as required by 49 C.F.R. Part 1105.  Id.  Third, Congress did not give Amtrak any cause of action that could support its demand for the requested “interim order.”  Id.  CSXT and NSR requested that the Board dismiss without prejudice Amtrak’s application as ripe and procedurally deficient.  Id. at 27.  Amtrak filed a response in opposition to the motion to dismiss on April 26, 2021.

Numerous comments have been submitted, including letters from state and federal government officials.  Additionally, the United States Department of Transportation and the Federal Railroad Administration filed a letter on May 10, 2021, urging the Board to act expeditiously on Amtrak’s application.

In its August 6, 2021 decision, the Board instituted a proceeding on Amtrak’s application and denied CSXT and NSR’s motion to dismiss.  Application of the Nat’l Passenger R.R. Corp. Under 49 U.S.C. § 24308(E)—CSX Transp., Inc. & Norfolk S. Ry. Co., FD 36496 (STB served Aug. 6, 2021).  The Board concluded that the proceeding is ripe for adjudication, finding that “[t]he statute’s threshold requirements that the carriers ‘[d]o not agree to provide, or allow Amtrak to provide, for the operation of additional trains’ has been met.”  Id., slip op. at 5. The Board also found that environmental and historic reports were not required.  Id.  Furthermore, the Board denied as moot Amtrak’s request for an interim order regarding track access, noting that Amtrak had advised the Board of new developments, and it appeared that Amtrak has received the limited access it sought.  Id., slip op. at 11.

The Board established a procedural schedule and appointed an administrative law judge to resolve all discovery disputes.  Id., slip op. at 12.  Under the procedural schedule, the discovery period ends on September 20, 2021, and CSXT and NSR’s opening evidence is due on October 20, 2021.  Id.

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