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The Biden Administration’s Misguided Railroad Mandate

The Surface Transportation Board needs to avoid adding new inefficiencies to supply chains by rejecting a cumbersome proposed regulation on freight railroads.

By Dominic PinoNational Review

(JerryB7/iStock/Getty Images)

Reciprocal switching already occurs based on private agreements between railroads. But Democrats, first under Obama and now under Biden, have wanted to give the government more power to determine switching agreements in the name of promoting competition. (For a more in-depth discussion of the regulatory history and effects of mandated reciprocal switching, see my piece from January here.)

February 14 was the deadline for organizations to provide written comments before the STB hearing. The last time organizations were asked to comment, in 2016, a wide array of interests that don’t usually agree came together to oppose the STB regulation. This time, it’s the same story. The STB should listen to the disparate voices speaking out against this regulation and abandon it.

The Association of American Railroads (AAR), in a massive 611-page filing, provides evidence that freight-rail rates have not seen significant increases in the past few decades, which undermines shippers’ claims that the industry has been behaving monopolistically. To understand why reciprocal switching is such a big deal for railroads, it’s helpful to watch this video from AAR that shows how a switch actually works. It sounds relatively simple in the abstract — just switch cars from one railroad to another — but the video demonstrates that a typical switch of one car between two railroads can take six days and involve eight trains, three rail yards, and 68 separate rail operations. That process should only be undertaken when it makes economic sense, AAR argues, not when government bureaucrats decide it would promote some other goal.

Economic analysis from a wide variety of groups concludes that mandated reciprocal switching would not be helpful. The International Center for Law and Economics writes in its filing that “the regulatory solutions the STB offers are in search of competition problems, evidence of which remains conspicuously absent.” The center’s filing argues that market interventions, while sometimes necessary, need to be backed up with evidence, and the STB has not done the necessary work to demonstrate a particularized economic problem in need of solving.

Mark Jamison, a professor at the University of Florida and a fellow with the American Enterprise Institute, draws parallels between the STB’s proposed rule and regulations in the telecommunications industry that were adopted under similar pretexts. His filing provides evidence that purportedly pro-competition regulations in telecommunications “generally slowed innovation and led network providers to compete less and invest less.” Those are questions of actual history, not economic theory, and he argues we have no reason to believe the same principles applied to railroads will turn out any better.

Reason Foundation’s filing points out that the STB’s economic analysis is largely based on a study that was released in 2010 based on data from 2008. “The U.S. railroad industry of 2022 looks quite different than the industry of 2008,” Reason’s Marc Scribner writes. “Most strikingly, the sharp decline of coal-fired electricity generation has led coal-by-rail tonnage to decline by nearly half since 2008.” Basing a regulation on data that old is not sound policy-making, regardless of the contents of the rule. Scribner isn’t impressed by the contents either, writing that the STB fails to adequately consider how the rule will affect railroads’ ability to compete with trucking.

The Progressive Policy Institute argues in its filing that “a 2016-vintage regulatory approach is totally wrong for the 2022 economy.” The institute’s chief economist, Michael Mandel, writes that the consequences of supply-chain disruptions we see today demonstrate the importance of prioritizing efficiency in the future. He argues that under the proposed rule, “railroads would have to give a high priority to moving goods in a way that met the reciprocal switching requirements, rather than lowering costs and speeding goods to their ultimate consumers.” The higher costs that would result would then be passed on to consumers, needlessly reducing purchasing power and possibly contributing to inflation.All Our Opinion in Your Inbox

That’s why the American Consumer Institute (ACI) opposes the regulation as well. ACI’s filing argues in strong terms that the proposed rule “would destroy the billions of dollars of annual consumer benefits” that have come since deregulation. ACI’s research found “no empirical evidence of a market failure to justify the calls [for mandated reciprocal switching] by shipping industry lobbyists, whose companies are collectively more profitable than the rail carriers they seek to subjugate.” Small businesses have also been beneficiaries of self-sustaining, deregulated railroads, and the Small Business and Entrepreneurship Council registered its opposition to the proposed rule on similar grounds.

The Intermodal Association of North America (IANA) believes that the proposed regulation in its current form would worsen supply-chain difficulties. Its filing says that the STB’s proposed rule would result in “a decline in rail infrastructure; decreased network velocity; a deterioration in domestic intermodal service; and an adverse impact on intermodal’s ability to compete with over-the-road trucking.” The IANA’s membership includes railroads, but also motor carriers, water carriers, port authorities, and logistics companies — all of whom believe that supply chains as a whole will be made worse because of the regulatory burden imposed on freight rail.

It’s not only the major Class I freight railroads that oppose mandated reciprocal switching. The American Short Line and Regional Railroad Association opposes it, too, saying in its filing that “while short lines often consider themselves ‘shipper representatives’ and we certainly have our share of frustrations with our Class I railroad partners, we see this rule as counterproductive and likely to cause more harm than good.”

Echoing Amtrak’s concerns from 2016, Chicago’s commuter-rail system, Metra, warned the STB that mandated reciprocal switching could cause more traffic delays in the Windy City’s dense railway network.

Aside from economic and operational concerns, there are also safety concerns. Patrick McLaughlin of the Mercatus Center is a former economist with the Federal Railroad Administration, the industry’s safety regulator. In his filing, he points out that switching is an inherently dangerous operation, and mandating more switching for no economic reason needlessly puts workers at risk of injury.

Rail workers aren’t too excited about reciprocal switching, either. SMART-TD, the largest railroad union in North America, opposes the rule for its effects on railroad safety and finances. It doesn’t help workers for railroads to make less money, and the union is concerned that its members could be laid off or face pay cuts if the regulation goes into effect. The Brotherhood of Locomotive Engineers and Trainmen is concerned about the effect the regulation would have on collective-bargaining agreements. Unions aren’t concerned about efficiency like other groups are. They’re just looking out for their members, and they still oppose the regulation.

What about environmentalists? The National Wildlife Federation, along with ConservAmerica, C3, and Third Way, wrote a letter to the STB arguing that the railroad industry “currently offers the most environmentally friendly way to move goods over land.” Freight that gets disrupted by new inefficiencies in railroads doesn’t just disappear. It “could shift to more carbon-intensive modes of transportation,” e.g., trucking. Making railroads less efficient is bad for the environment, too.

At this point, you’re probably wondering who on earth supports this thing. The answer: shippers. The dynamic is similar to that of the Ocean Shipping Reform Act, where shippers are trying to capitalize on dissatisfaction with supply chains to get regulatory changes they have wanted for decades. The Rail Customer Coalition’s letter to the STB argues that the regulatory hurdles that shippers currently face to get mandate reciprocal switching are too high and that “reciprocal switching would empower rail customers, including farmers, manufacturers, and energy providers, to choose a carrier that provides the best combination of rates and service.”

There will always be a strained relationship between shippers and carriers. Shippers are always going to want lower rates, and carriers are always going to complain that shippers are making unfair demands. But in this case, the evidence presented to the STB clearly leans in the railroads’ favor. It’s not often in Washington that economic analysis, consumer interests, small-business interests, safety analysis, organized labor, and environmentalism all point in the same direction.

The 3–2 Democratic majority on the STB has a choice. It can side with the evidence from all those groups that normally disagree. Or it can side with shippers and President Biden, as requested in his executive order on competition. If it does the latter, in the face of all the prevailing evidence, it will be adding new inefficiencies to supply chains at the worst possible moment.


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