Rail transport associations say the poor punctuality of all 15 Amtrak long-distance trains – which prompted the Justice Department last week to file a lawsuit against Norfolk Southern over its handling of the Crescent – is merely a reflection of Class I freight transport.

“This is a symptom of capacity and liquidity problems in the freight rail network. Some may see it as a zero-sum game, but the real cause is that the railroads, not just NS, have decided to avoid investing in sufficient staff and sufficient track capacity,” says Ann Warner, who represents several freight forwarding groups, including the Freight Rail Customer Alliance and the National Industrial Transportation League.

The freight forwarders argue that Class I rail freight transport is suffering because Wall Street insists on low ratios and as little capital expenditure as possible in order to finance share buyback programs.

“The result is that they are running trains that are too long for their existing sidings, causing congestion, slowdowns, poor service and a lack of resilience,” Warner says. “These are the same problems that plague carriers in general – Amtrak is just the canary in the coal mine.”

Wick Moorman, who served as Amtrak’s CEO for a year after stepping down as CEO of Norfolk Southern in 2015, says the canary comparison is accurate. During his time at the helm of NS, Moorman closely monitored Amtrak’s performance on each corridor. “When Amtrak wasn’t doing well, you had to look at what else was going on,” he says.

The Justice Department’s lawsuit alleging that NS did not Crescent the preferential right over freight trains, is only the second case since Amtrak was founded in 1971. A similar case filed by Amtrak against Union Pacific in December 2022 for obstructing freight train traffic with the Sunset limitedis currently under review by the Surface Transportation Board. It is the first on-time performance dispute brought before the STB since the agency was granted authority to investigate violations of Amtrak’s federal service standards that took effect in 2020.

Moorman says the preferential treatment law is open to interpretation. The frustration at Amtrak, he says, is what preferential treatment means. “The first step is to define preferential treatment and tie it to an acceptable level of on-time performance,” Moorman says. The second step is to create an enforcement mechanism that ensures that level of on-time performance, he says.

Some rail carriers worry that a strict interpretation of the preferential right could hurt freight traffic. Rick Paterson, a railroad official who is now a financial analyst at Loop Capital Markets, closely follows the performance metrics that freight railroads must report to the STB each week. He says the carriers’ concerns are valid, given the busy freight corridors shared with Amtrak trains.

“If every Amtrak train suddenly becomes a real hotshot and everything in front of it has to get out of the way, there’s definitely chaos here,” says Paterson. “We’ve seen situations in the past where the railroads tried to use fast intermodal hotshots for small packages for UPS, but the disruption was unbearable.”

Several experienced rail operators also pointed to UPS’s high-speed rail experiments two decades ago as an example of what can happen to overall service levels when priority trains can only see green signals and travel at track speeds along their entire route.

BNSF Railway parted the waters for the once-weekly UPS bullet train, which was scheduled to leave Los Angeles on a Monday and arrive in New Jersey on a Friday. BNSF decided that the delays the bullet train was causing to the rest of its traffic were unacceptable. Norfolk Southern came to the same conclusion after participating in the test runs east of Chicago. Union Pacific, however, took up the baton and operated the service in conjunction with CSX for a few months. But UP also threw in the towel, due to the collateral damage the bullet train was causing to the rest of UP traffic, including its priority Z trains.

“Passenger trains are just as disruptive and eat into mainline capacity,” says a former COO. “Yes, they are shorter and faster, but the way the dispatch teams plan and set up the railway still causes a ripple effect of delays even if they weren’t there.”

A veteran network operations official says Precision Scheduled Railroading’s strategy of using fewer but longer trains creates a capacity dividend that should benefit Amtrak. “Implement an operating plan that minimizes the number of active trains on the network so the peak workers can get out and go,” he says. “It’s much easier to run a train with seven 10,000-foot trains than with 10 7,000-foot trains, and reducing active trains has a dramatic impact on train speeds and schedule adherence.”

Amtrak did not respond to a Trains News Wire Request an interview with CEO Stephen Gardner on preference issues. But Gardner said in testimony before Congress in November 2020 that there is no evidence that preferential treatment of passenger trains reduces the efficiency of the freight network, impairs service, or brings freight traffic to a halt.

According to Gardner, freight railroads can apply to the STB for relief if they believe Amtrak trains are affecting freight traffic. “The fact that not a single railroad has applied for such relief suggests that railroads either do not believe that the preference affects the quality of service to shippers or that they do not grant Amtrak a preference in the first place,” Gardner told Congress.

The Association of American Railroads declined to comment on the Justice Department’s lawsuit and referred questions to the individual railroad companies involved, who also declined to comment.

But in a hearing before a House Transportation and Infrastructure Committee subcommittee on Amtrak service last year, AAR CEO Ian Jefferies pointed out that freight railroads welcomed the opportunity to get out of loss-making passenger service with the creation of the national passenger railroad in 1971. “Freight railroads were also required to give ‘first preference’ to Amtrak service on their routes, a right that still exists today, albeit in a fundamentally different freight and passenger rail landscape,” Jefferies said, noting that Amtrak is not required to support capacity improvements.

When Amtrak was granted first-class service in 1973, freight railroads had excess capacity. But the Staggers Act of 1980, which partially deregulated the industry, helped fuel a freight renaissance while allowing redundant main lines to be closed.

Freight railroads have also been cutting sections of double- or multi-track main lines. As a result, Class I railroads now concentrate much more tonnage on far fewer main lines, forcing Amtrak to compete for limited capacity. “The Class I railroads are a bit like the man who murders his parents and then begs for mercy as an orphan,” former STB Chairman Martin J. Oberman noted several times during his tenure.

Oberman, who retired in May, says Trains that the Board of Directors Sunset limited case, while being fully aware of the complexity and nuances of how a national freight and passenger network operates.

Some observers say it is unclear whether and to what extent the Justice Department and federal courts will balance Amtrak’s preferential treatment with the need for efficient freight transportation.

The freight network must remain flexible, says Oberman. Otherwise, both Amtrak service and the economy will suffer.

There’s no question that enforcement is needed, Oberman says, because there are many cases where host railroads intentionally fail to give Amtrak priority. The question, he says, is what the remedy needs to be to get trains to meet on-time standards. Is additional capacity needed? If so, should taxpayers pay for it, or should the host railroad also contribute? And if so, what should the allocation of public and private funding be?

Gardner told Congress that the lack of enforcement of preferential rights had resulted in public investments in rail capacity projects not producing the desired improvements in on-time performance.

Norfolk Southern has stated that it is “committed to complying with the law, cooperating and honoring our obligations. Over the past few months, we at Amtrak have focused on delivering on time Crescent passenger train. We hope to address these concerns and make further progress together.”