Changing Signals: A New Approach to the Enforcement of Rail Passenger Traffic Preference in Response to the Passenger Rail Investment and Improvement Act of 2008

By Smith, Bradon J. | Journal of Corporation Law, Winter 2013 | Go to article overview

Changing Signals: A New Approach to the Enforcement of Rail Passenger Traffic Preference in Response to the Passenger Rail Investment and Improvement Act of 2008


Smith, Bradon J., Journal of Corporation Law


I. INTRODUCTION

II. Background

   A. The First Regulatory Era 1880-1920: Who's Running the Railroads?

   B. The Second Regulatory Era 1920-1970: Steep Grade Ahead, Passenger
   Terminus

   C. Amtrak and the Modern Era: From $40 Million to $40 Billion

   D. Three-Way Crossing: Federal Regulation, Service Guarantees, and
   the Necessity of Private Railroad Cooperation

   E. Sidetracked No Longer? The PRLLA's New Focus on Enforcing Federal
   Law

      1. Metrics and the New Administrative Remedy

      2. The Administrative Remedy and Its Reliability

   F. Freight Railroads React Part I: Impracticality of Proposed
   Regulations

   G. Freight Railroads React Part II: Invalid Statutory Framework?

III. ANALYSIS

   A. Case Law Comparison: National Railroad Passenger Corp. v. Boston
   & Maine Corp., Lebron v. National Railroad Passenger Corp., or Both?

   B. Regulation in Practice: The Problem of Competent Evidence in
   a Dispute

IV. RECOMMENDATION

   A. An Opportunity for Comparison: The Passenger Friendly Skies?

   B. Waking the Switchman: The Benefits of Active Enforcement via
   Federal Dispatchers

V. CONCLUSION

I. INTRODUCTION

Rising oil prices and increasing concerns about transportation sustainability has renewed the drive for effective rail passenger travel. (1) The Obama Administration has touted high-speed intercity passenger rail travel as the answer to a number of economic and environmental problems. (2) Amtrak, the sole national passenger carrier, celebrated its 40th anniversary in 2011 with a special exhibition train and celebrations in major cities across the United States. (3) The passenger carrier went on to serve a record 31.2 million passengers in 2012. (4) These landmark events, record figures, and federal attention suggest that Amtrak is an integral part of the nation's infrastructure planning.

It is all the more troubling then that Amtrak has long struggled to provide reliable service. (5) This struggle is in part because Amtrak must rely on the charity of freight railroads to operate outside of its limited holdings in the Northeast Corridor. (6) Federal law mandates that freight railroads give Amtrak traffic priority over all freight traffic, but the private freight railroads have long ignored this requirement. (7) Instead, the freight railroads allow their own trains to continue unimpeded while sidetracking Amtrak traffic, a practice that results in significant delays for passenger trains that must stop to let the freight traffic pass. (8) This Note proposes federalizing dispatch service to ensure compliance with federal law.

Part II of this Note describes why the federal government took the responsibility of passenger service from the private carriers, how it did so, the severe problems passenger and freight carriers face in sharing the same infrastructure, the proposed solution of the Passenger Rail Investment and Improvement Act of 2008 (PRIIA), and the private carriers' critique of the Act. Part III discusses the legal validity and practical consequences of the PRIIA solution. Part IV suggests a new approach to enforcement of the federal mandate via federal dispatch personnel, with a comparative paradigm drawn from a similar mode of mass transit--the airline industry.

II. Background

Dramatic increases in passenger and freight traffic in the late 19th century caused the railroad business to grow quickly. (9) Despite the substantial increase in each business line, the railroads were initially slow to serve their customers' needs. (10) Freight and passengers often traveled together on the same train. (11) The inconvenience waiting passengers experienced when traveling with freight resulted in demand for travel that was exclusively passenger oriented. (12)

Though people and freight would soon separate, regulation remained unified. (13) Congress and the states established single regulatory agencies for the purpose of regulating both passenger and freight travel.

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Changing Signals: A New Approach to the Enforcement of Rail Passenger Traffic Preference in Response to the Passenger Rail Investment and Improvement Act of 2008
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