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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.


Right Now, Infrastructure Policy Should Focus on Fixing and Maintaining What We Have

By Marc ScribnerReason Foundation

Right Now, Infrastructure Policy Should Focus on Fixing and Maintaining What We Have
Photo 25818448 © Frank Gärtner – Dreamstime.com

The COVID-19 pandemic introduced an unprecedented amount of uncertainty into transportation infrastructure planning. Travel fell significantly across all modes and remains depressed, particularly for shared transportation modes such as commercial air travel and mass transit. Changes in travel behavior may persist long after the coronavirus pandemic finally ends, particularly for commuting trips given that a large share of employees may continue working from home. Given this uncertainty, investments in new infrastructure meant to provide service for decades into the future are incredibly risky. As Congress considers surface transportation reauthorization in this low-confidence era, it should adopt a preference for the lowest-risk class of projects: maintaining and modernizing existing infrastructure under a “fix it first” strategy.

COVID-19 led to dramatic changes in travel behavior. By April 2020, when much of the country was under stay-at-home orders, road traffic fell 40%, mass transit ridership fell 95%, and air travel fell by 96%. Since then, road travel has largely recovered, with vehicle-miles traveled back to within 10% of the pre-pandemic baseline. 

However, travel by shared transportation modes, such as commercial aviation and mass transit, was still down by approximately two-thirds year-over-year by the end of 2020, according to data collected by the Bureau of Transportation Statistics. 

Travel is expected to continue its rebound as the number of people vaccinated grows and the pandemic wanes, but changes in travel behavior driven by factors such as the rise of remote work are likely to persist. To what degree pandemic-spurred changes in travel demand are permanent is unknown at this time, and this uncertainty has rendered pre-pandemic infrastructure planning and investment models nearly useless as accurate guides to the future.

While the drop in transportation demand and the fixed nature of transportation infrastructure supply has significantly reduced the productivity of existing transportation infrastructure, some are calling for large new investments by claiming that the nation’s infrastructure networks are crumbling. However, a review of the available evidence suggests a different and more complicated picture of infrastructure asset quality. 

For example, Reason Foundation’s most recent Annual Highway Reportfound, “Of the Annual Highway Report’s nine categories focused on performance, including structurally deficient bridges and traffic congestion, the country made incremental progress in seven of them.” 

Similarly, a June 2020 National Bureau of Economic Research (NBER) working paper on transportation infrastructure concluded, “Not only is this infrastructure, for the most part, not deteriorating, much of it is in good condition or improving.”

However, Reason’s Annual Highway Report shows large variation across states and the NBER analysis is limited in that it fails to account for transit infrastructure beyond rolling stock. Rail guideway assets such as tracks and signals have deteriorated in many cities. To be sure, there are sizeable transportation infrastructure needs in the United States.  Reconstructing the Interstate Highway System alone has been estimated by the National Academy of Sciences to cost at least $1 trillion over two decades and mass transit’s maintenance backlog likely exceeds $100 billion.

Given all we know about existing transportation infrastructure needs and the uncertainty surrounding future travel activity, Congress should adopt a risk-minimizing “fix it first” strategy to restore our existing transportation assets to a durable state of good repair. This approach has been endorsed by organizations and think tanks across the political spectrum, from the progressive Transportation for America to the free market Competitive Enterprise Institute

Building new infrastructure that will last three to five decades based on pre-pandemic travel modeling is fundamentally imprudent at this time. Physical capacity expansions such as highway widening and new rail lines should at the very least face heightened scrutiny from policymakers until there is more confidence in post-pandemic travel behavior that can be used in transportation infrastructure planning and investment decisions.


Electric Car Subsidies Hurt Middle Class Americans

By George LandrithReal Clear Energy

While cold weather, as a new AAA study reveals, can reduce the range of electric vehicles by roughly 40 percent, the prospect of being frozen out of its windfall from Washington kicked the industry’s lobbying team into overdrive this winter.

For more than a decade, you, the American taxpayer, have been responsible for funding that windfall through a federal tax credit of up to $7,500 for every luxury electric car sold in the country. Currently capped at 200,000 units per manufacturer, electric vehicle buyers were the beneficiaries of $4.7 billion between 2011 and 2017; absent a repeal, the Joint Committee on Taxation (JCT) projects that figure to total $7.5 billion between FY2018 and FY2022 alone. The Manhattan Institute, meanwhile, estimates that the elimination of electric car subsidies could save taxpayers $20 billion.

Only compounding the ever-growing cost to the American people, NERA Economic Consulting’s September study determined that in the No Cap Limit scenario sought by lobbyists for titans like Tesla and General Motors – both of whom have already hit the aforementioned 200,000 per-manufacturer threshold – “total personal income of all U.S. households decreases by $7 billion in 2020 and $12 billion in 2035” on top off “higher total electricity costs” for ratepayers. Overall, NERA concludes that between 2020 and 2035, the net present value reduction in personal income of all U.S. households would swell to a staggering $95 billion. Continue reading


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