Buttigieg: Justice Department lawsuit necessary to get freight trains out of Amtrak’s way

MILWAUKEE — The Justice Department needed to file a lawsuit against Norfolk Southern for its poor handling of Amtrak’s Crescent because Class I railroads routinely ignore the law that gives passenger trains preference over freight traffic, Transportation Secretary Pete Buttigieg told Trains on Wednesday.

The suit, filed Tuesday, July 30, in the U.S. District Court for the District of Columbia, is only the second time the Justice Department has sought to enforce the 1973 law that requires host railroads to give Amtrak trains preference.

A similar case, which Amtrak brought against Union Pacific in December 2022 over freight train interference with the Sunset Limited, is making its way through the Surface Transportation Board. It’s the first on-time performance dispute brought to the STB since the agency gained the authority to investigate violations of the federal Amtrak service standards that went into effect in 2020.

Why was the Crescent case brought through the Justice Department rather than the STB?

“I think you’re going to see an all-of-the-above strategy, because the bottom line is that we’ve got to get results. Federal law already requires Class I railroads to get out of the way when there’s a passenger train coming, and too often we see non-compliance that is a major source of delay and therefore frustration,” Buttigieg says.

Amtrak and passenger advocates have long maintained that unreliable service has been a barrier to growth in ridership. Freight train interference is the top cause of delays to Amtrak trains that operate on host railroads, Amtrak says.

“Ridership would be higher if passengers knew they’d be able to get where they’re going on time, without having to worry about being blocked by freight rail. Ideally this would be fixed by freight railroads doing the right thing on their own,” Buttigieg says. “But short of that — and I’ve talked with the railroad CEOs myself about why they need to do that — STB, DOJ, and our own work as a department will all work in parallel to get results.”

Buttigieg says the public wants more — and more reliable — Amtrak service. “People want that service, but they also want and expect that service to be reliable. Many people don’t realize that sometimes when that Amtrak is running late, it’s through no fault of Amtrak. It’s because somebody has gotten in their way. That has to stop, and we will do everything we can to encourage it and enforce it until it does,” Buttigieg said on the station platform in Milwaukee with Wisconsin Gov. Tony Evers.

Amtrak, in a May letter, requested that the Justice Department take action. It was unclear why the lawsuit targets only Norfolk Southern and its handling of the Crescent. All 15 of Amtrak’s long-distance trains that operate on the Class I railroads failed to meet federal on-time performance standards last year, as did the vast majority of state-supported routes that operate on host railroads.

Last year 57% of Crescent passengers arrived on time, which was well below the 80% threshold required under federal standards. Six long-distance trains — the Silver Meteor (CSX), Empire Builder (BNSF, CPKC), Silver Star (CSX, NS), Sunset Limited (BNSF, UP), Southwest Chief (BNSF), and California Zephyr (BNSF, UP) — had worse on-time performance last year, according to Amtrak data.

Over the past 12 months, Canadian Pacific Kansas City was the only Class I to meet Amtrak’s goal of host responsible delay minutes per 10,000 train-miles, according to Amtrak’s latest Host Railroad Report.

An Amtrak spokeswoman did not respond to an email requesting information on the railroad’s decision to seek an enforcement action. Amtrak declined to release a copy of its letter to the Justice Department and referred questions to the Justice Department. A Justice Department spokeswoman declined to comment and said she was unable to provide a copy of the letter. Trains subsequently filed a freedom of information request with the Justice Department to obtain the letter and any related correspondence between Amtrak and Justice officials.

Some industry observers suspect that politics played a role in the decision to single out Norfolk Southern. Earlier this year the Justice Department faced criticism from lawmakers on Capitol Hill after it reached a settlement with NS regarding its hazardous materials derailment in East Palestine, Ohio — a decision made before the National Transportation Safety Board released its report on the wreck.

The industry observers said the suit against NS would show Justice Department critics that it was not soft on the railroad after all. And they said they were stunned that Attorney General Merrick Garland commented on the case when it was announced on Tuesday.

“Americans should not experience travel delays because rail carriers break the law. Our action today alleges that Norfolk Southern violates federal law by failing to give the legally required preference to Amtrak passenger trains over freight trains,” Garland said in a statement announcing the civil suit. “The Justice Department will continue to protect travelers by ensuring that rail carriers fulfill their legal obligations.”

The Justice Department has always had the authority to enforce Amtrak’s right of preference. But it has only filed a suit once before, against Southern Pacific in 1979 for its handling of the Sunset Limited. That case was ultimately dropped after service improved.

Amtrak, in a 2022 presentation, argued that the threat of preference enforcement has tended to improve on-time performance. Long-distance train on-time performance, which was below 50% when the Justice Department filed its complaint against Southern Pacific in 1979, jumped to above 60% in 1980 and ultimately peaked at above 80% four years later. More recently, the Sunset Limited’s performance has improved since Amtrak filed its STB complaint against UP.

Jim Mathews, CEO of the Rail Passengers Association, said the right of preference lawsuit was long overdue.

“Unfortunately, Amtrak is entirely dependent on the DOJ for enforcement action of this right, which has only happened once before today, way back in 1979,” Mathews said in a statement. “That means tens of millions of American passengers have been waiting for decades for relief from these host railroad-caused delays. With that history in mind, Rail Passengers is extremely appreciative of the leadership shown by the Biden Administration, the DOJ, and the U.S. Department of Transportation for taking action to protect the legal rights of passengers to quality, on-time service.”

Substandard on-time performance can’t be explained by the impact of bad weather or supply chain disruptions affecting freight railroads, Mathews said, especially since passenger train schedules have been certified by host railroads and Amtrak.

— Trains Senior Editor David Lassen contributed to this report.