Justice Department Backs Rail Passengers’ Position On On-Time Performance

For Immediate Release (17-21)

January 23, 2018

Contact: Xenophon Strategies - (202) 289-4001

--Fight Marches On To Prioritize People Over Freight--

Washington, D.C. – Though the Justice Department recommended that the U.S. Supreme Court not hear a crucial case “at this time” that would pave the way for on-time performance standards to be enforced, it did back the long-standing Rail Passengers’ position on the matter. In a legal brief, Solicitor General Noel J. Francisco, the country’s third-ranking legal official, recognized a Congressional mandate that requires the creation of standards to make trains run on time. He acknowledged that the power to create these standards has been eviscerated by competing court cases brought by the freight rail industry. And, Francisco concurred with the Association’s position that the issue could be set aside for the Supreme Court to potentially consider the matter after related cases are heard.

“This decision leaves some space in which passengers’ rights may yet see vindication in the Supreme Court,” said Rail Passengers Association President Jim Mathews. “The Solicitor General has enormous power to get the Supreme Court to hear a case. He agreed with the merits of our argument, and supported our alternate suggestion that the petitions be held until a later date. While a recommendation now from the Justice Department could have sped up the process, we will continue to fight to ensure the trains run on time. ”

Francisco filed the brief in response to a petition, known as a “writ of certiorari,” from Amtrak and the Rail Passengers Association-led coalition of rail-passenger advocates. Rail Passengers Association filed its cert petition, through its counsel and partner the Environmental Law and Policy Center, on November 10, 2017. The decision is part of a decades-long battle by rider advocates to hold freight rail companies to the obligations they accepted when they chose to exit the passenger rail business.

In the brief, the Solicitor General told the Court that the core claims at the heart of the case were sound. In short, he argued that prior courts erred in gutting the protections passed by Congress in the 2008 Passenger Rail Investment and Improvement Act (PRIIA). He further agreed that the Surface Transportation Board (STB) can set and enforce standards to protect rail passengers, contrary to the argument made in lawsuits brought by the freight rail industry.

"When the DC Circuit nullified Section 207 last year, it took away FRA’s power to develop on-time performance standards. Then the Eighth Circuit this summer interpreted Section 213 in a way that eviscerated the power of the Surface Transportation Board,” Mathews said. “Freight rail companies don’t want there to be any on time performance standards for passengers, so they are throwing up every roadblock they can to avoid meeting their obligations. Congress mandated that we should prioritize people first, which the Solicitor General’s office recognized in its brief.”

“The government agrees with petitioners that Section 213, properly construed, authorizes the STB to develop a standard through rulemaking for ‘on-time performance’ as one of two statutory triggers under 49 U.S.C. 24308(f )(1). As petitioners explain (17-699 Pet. 20), that construction of Section 213 is most consistent with ‘PRIIA’s text, structure, and purposes.’ See 17-699 Pet. 20-31; 17-714 Pet. 10-12,” the Solicitor General Francisco said in the brief.

“The Eighth Circuit’s decision to invalidate the STB’s final rule based on a contrary reading of Section 213 was erroneous,” the brief continued. “That decision, in combination with the D.C. Circuit’s decision striking down on constitutional grounds the metrics and standards established under Section 207, leaves a significant gap in the scheme Congress created by enacting PRIIA, thereby threatening the quality of passenger rail service nationwide. See 17-699 Pet. 15-18.”

As Rail Passengers Association awaits further action on the petition, the Association will continue to advocate for on-time performance standards that support passenger rail’s rights to operate over the nation’s rail network. The Association also appreciates the excellent work and continued commitment of the Environmental Law and Policy Center in serving as our legal counsel in this effort.

About the Rail Passengers Association

The Rail Passengers Association is the oldest and largest national organization speaking for the nearly 40 million users of passenger trains and rail transit. We have worked since 1967 to expand the quality and quantity of passenger rail in the U.S. Our mission is to work towards a modern, customer-focused national passenger train network that provides a travel choice Americans want. Our work is supported by more than 28,000 individual members nationwide.