301896 ENTERED BEFORE THE SURFACE TRANSPORTATION BOARD Office of Proceedings DOCKET NO. FD 36496 April 5, 2021 ______________________________________________ Part of Public Record APPLICATION OF THE NATIONAL RAILROAD PASSENGER CORPORATION UNDER 49 U.S.C. § 24308(e) – CSX TRANSPORTATION, INC. AND NORFOLK SOUTHERN CORPORATION ______________________________________ CSX TRANSPORTATION, INC. AND NORFOLK SOUTHERN RAILWAY COMPANY’S MOTION TO DISMISS ___________________________ TABLE OF CONTENTS EXECUTIVE SUMMARY. .................................................................................. 1 AMTRAK’S APPLICATION DOES NOT PRESENT A RIPE DISPUTE FOR THE BOARD’S REVIEW. .......................................................................... 7 1. An RTC Study Is Essential To Understanding What Infrastructure is Needed to Support Gulf Coast Service. ............ 8 2. Amtrak, CSXT, and NSR Committed to Stakeholders To Complete the RTC Study, and Amtrak Has No Good Reason to Refuse to Do So. ....................................................................... 10 AMTRAK HAS FAILED TO PROVIDE AN ENVIRONMENTAL AND HISTORIC REPORT WITH ITS APPLICATION ........................................... 17 AMTRAK’S REQUEST FOR AN “INTERIM” ORDER ALLOWING IT IMMEDIATE ACCESS TO CSXT AND NSR RAIL LINES SHOULD BE DENIED WITH PREJUDICE .......................................................................... 22 AMTRAK’S PROPOSED PROCEDURAL SCHEDULE IS NOT APPROPRIATE. ................................................................................................ 26 CONCLUSION .................................................................................................. 27 EXHIBITS i ii EXECUTIVE SUMMARY. Amtrak’s Application should be dismissed for three reasons. First, Amtrak asks the Board to rule on a dispute that is not ripe, because (1) CSX Transportation, Inc. (“CSXT”) and Norfolk Southern Railway Company1 (“NSR”) have not refused to accommodate Amtrak’s proposed service—they have simply asked Amtrak to live up to the commitments it made to complete a joint Rail Traffic Controller (“RTC”) modeling study to determine the infrastructure that will be required to support such service and (2) Amtrak lacks important state support to ensure success. Second, Amtrak asks that the Board take major federal actions with significant environmental consequences, but it fails to submit an Environmental and Historic Report as required by 49 C.F.R. Part 1105. Third, Congress did not give Amtrak any cause of action that could support its extraordinary demand for an “interim order” allowing Amtrak to enter other railroads’ lines to perform “preparations” for new service before the Board issues any decision on whether the new service will be allowed.2 Congress created an avenue, in 49 U.S.C. § 24308(e), for Amtrak to seek relief from the Board if a railroad “does not agree to provide, or allow Amtrak to provide, for the operation of additional trains over a rail line of the carrier.” But the prerequisite for a §24308(e) action is a railroad’s refusal to allow additional service. 1 While Amtrak names Norfolk Southern Corporation in its Application, Norfolk Southern Railway Company is the proper party. 2 49 U.S.C. § 24308(e)(1). Amtrak is a party to separate operating agreements with CSXT and NSR, both of which contain forum selection clauses that provide for resolution of passenger service issues before the National Arbitration Panel. CSXT and NSR have elected to waive those forum selection clauses for purposes of this proceeding only. These contracts also contain provisions setting forth standards that govern passenger service modifications and their impact on freight service. CSXT and NSR reserve the right to enforce those standards in binding arbitration. 1 Here, CSXT and NSR have not said no to Amtrak’s request. On the contrary, last year CSXT and NSR agreed with Amtrak to engage HDR Engineering, Inc. (“HDR”) to conduct a joint RTC study to determine the infrastructure needs required to accommodate the proposed Gulf Coast passenger service over the rail lines of CSXT and NSR between New Orleans, Louisiana and Mobile, Alabama (the “Gulf Coast service”). That study was nearing completion when Amtrak unilaterally decided to end it and subsequently refused to consent to CSXT and NSR completing the study at their own expense. It is fundamentally unfair for Amtrak to refuse to allow a standard impact study to be performed—one that Amtrak agreed to co-sponsor in 2020—and then assert that it is entitled to an order imposing service anyway because the freight railroads supposedly “refuse to agree.” Not only have CSXT and NSR not refused to agree to provide for Gulf Coast service—they entered into a joint operational modeling study to be completed prior to the commencement of new passenger service so that the parties can determine what infrastructure is required to support that service. For over a year, CSXT and NSR relied on Amtrak’s involvement in the study. Rather than permit completion of the study and reserve the right to challenge the study’s findings, Amtrak is now attempting to withhold this valuable information from the Board entirely. Given that this is a case of first impression under § 24308(e), it is important that the parties provide the most complete record possible to the Board. Indeed, there needs to be a rigorous operations modeling study in this first case to set the standard for future cases as Amtrak has 2 announced its plans to “connect new city pairs,” like New Orleans to Mobile, throughout the country.3 It is well settled that Amtrak’s right to use a freight carrier’s rail lines for passenger service is conditioned on the payment of reasonable compensation.4 But Amtrak appears to be trying to avoid its financial obligations by pushing for hastily conceived passenger service without adequate study. The Board may investigate a freight carrier, on its own initiative or at Amtrak’s request, for failing to achieve an 80% on-time performance (“OTP”) standard and “remit the damages awarded under [§ 24308(e)] to Amtrak.”5 And those damages “shall be used for capital or operating expenditures on the routes over which delays or failures to achieve minimum standards were the result of a rail carrier’s failure to provide preference to Amtrak over freight transportation.”6 If passenger service were ordered to begin on January 1, 2022 without the presence of sufficient infrastructure to ensure 80% OTP is attainable without unreasonably degrading rail service, CSXT and NSR (and ultimately their freight customers) could be made to subsidize the very infrastructure necessary to support the proposed Gulf Coast service. Amtrak should not be permitted to pass the buck for the full costs of its requested new service. CSXT and NSR urge Amtrak to stand by its commitment to complete the joint study. Once that study is finished, it may be that CSXT, NSR, and Amtrak do 3 Ex. J. – Statement From Amtrak CEO On President Biden’s American Jobs Plan, Amtrak Press Release (Mar. 31, 2021), https://media.amtrak.com/2021/03/ statement-from-amtrak-ceo-on-president-bidens-american-jobs-plan/. 4 The Board may order a freight railroad to make available facilities and provider services to Amtrak in exchange for “reasonable terms and compensation” and “Amtrak’s right to use the facilities or have the services provided is conditioned on payment of the compensation.” See id. § 24308(a)(2)(A)(ii), (3). 5 Id. § 24308(f)(4). 6 Id. 3 not agree on the infrastructure necessary for the new service, and that a Board decision is needed. But right now Amtrak’s Application does not satisfy the fundamental prerequisite for a § 24308(e) case—refusal by a prospective host freight railroad to “agree to provide, or allow Amtrak to provide, for the operation of additional trains.” The Board should dismiss the Application without prejudice so the parties can pursue completion of the RTC study or an equivalent study, including an engineering analysis of any infrastructure recommended by the study. A completed study and engineering analysis will enable the parties to determine whether there is actually a disagreement that requires Board review—at which time Amtrak is free to refile its Application. Amtrak’s Application is also premature because the proposed Gulf Coast service lacks important state support to be successful. The proposed Gulf Coast service will operate over less than 200 miles of track across three states: Louisiana, Mississippi, and Alabama. At least one of these states, Alabama, has not yet committed to providing any funding for this state-supported route. Alabama has long insisted that there must be a thorough study of the impact of new Gulf Coast service on the quality of freight rail transportation in the region, in large part because of the ever growing importance of the Port of Mobile to Alabama’s economy. Amtrak’s failure to obtain the support of key stakeholders—such as the Governor of Alabama, a member of the City Council for the City of Mobile, Alabama, and the Alabama State Port Authority—further underscores why the Application is not yet ready for the Board’s review.7 A second, independent reason why Amtrak’s Application should be dismissed 7 See Letter from Governor Kay Ivey, Doc. No. 301867 (filed April 1, 2021); Letter from Mobile Councilman Joel Daves, Doc. No. 301878 (filed April 2, 2021); Letter from Alabama State Port Authority, Doc. 301883 (filed April 5, 2021); see also Letter from Senator Richard Shelby, Doc. No. 301856 (filed March 31, 2021). 4 is that