STB Chair Giving Up The Gavel

By Jim Mathews / President & CEO

The Surface Transportation Board made news twice this week, opening on Monday by declaring it was formally creating a Passenger Rail Advisory Committee to advise STB as it considers new passenger-rail issues and bookending the week yesterday with the wholly unexpected announcement of Chair Martin Oberman’s intention to decline a second term.

Vice Chair Karen Hedlund will assume the duties of Acting Chair until the White House nominates a replacement as a permanent Chair.

Railway Age’s Frank Wilner called it “a category 5 hurricane force stunning announcement,” and he wasn’t wrong. Marty has done remarkable and vigorous work during his three short years leading the Board, including work that Class Is weren’t happy to see. That the regulated bristle at a newly re-invigorated regulator should surprise no one.

At the same time, however, he proved to be both meticulous and fair. Matters brought before the STB in recent years have benefited from his decades of experience as both a seasoned litigator and a savvy Chicago political actor. These two strands from Marty’s resume help to explain much of what we have seen during his chairmanship. After all, courts are rarely presented with slam-dunk cases but instead must balance equities and statutory imperatives.

Thus, the CP-Kansas City Southern merger goes ahead to the consternation of some Democrats and progressives worried – correctly – about further concentration in the freight rail sector, but in service of a greater good of fluidity and access.

Similarly, Amtrak and a lot of passenger-rail advocates were looking for the STB to drop a giant and well-deserved hammer on CSX, Norfolk Southern, and the Port of Alabama for their bad-faith bargaining and misrepresentations around restoring Gulf Coast service. Instead, Marty insisted on building a docket packed to overflowing with evidence on the merits of Amtrak’s claims while simultaneously encouraging everyone involved to bury whatever hatchet needed to be buried and move on after nearly two decades of dispute and litigation. Next year, we’ll see the Mardi Gras begin running twice a day between New Orleans and Mobile, and it didn’t cost $2 billion to do it.

The most important passenger-rail matter before Oberman’s STB right now is Amtrak’s Section 213 claim against Union Pacific for UP’s abysmal on-time performance hosting Amtrak’s Sunset Limited. As was true in the Gulf Coast case, this will be what courts call “a matter of first impression,” meaning that the underlying law has never been tested in court, even though that law is nearly half-a-century old.

Whatever STB decides in the UP case, it is just about guaranteed to be appealed to the Court of Appeals for the DC Circuit. And once again, Marty is leading a careful and deliberative process designed to produce a fat and largely public docket on the merits in advance of any appeal.

When I talk with members and supporters they all wonder with exasperation why we can’t DO something about late trains? What’s happening here at the STB really IS that “something.” Before the FRA’s passenger-rail metrics and standards under Section 213 took effect in the waning days of the Trump Administration, the only practical option was for Amtrak to ask the Attorney General of the United States to go to bat for late passengers. Not bloody likely.

As I’d said in July when the STB agreed with Amtrak’s request to investigate why the Sunset Limited suffers from such perennial lateness, this means that after nearly two decades of finger-pointing and he-said-she-said, the STB – a neutral body with legal authority explicitly granted by Congress in statute – finally is going to get to the bottom of some of the most persistent questions surrounding late trains and the freights’ responsibilities to honor passengers’ legal right to be on time.

When Marty steps away early next year after the close of his first term on December 31, America’s rail passengers will owe him a debt of thanks for his combination of judicious and practical leadership of this independent agency which, while often considered obscure, has so much influence over the kind of rail service we have in the U.S.