I Was Wrong. And I Could Not Be Happier.

by Jim Mathews / President & CEO

When Norfolk Southern and the U.S. Justice Dept. filed their settlement motion in Federal court yesterday, I was deeply skeptical that it would be good news for passengers.

I was wrong.

And I could not be happier.

Hats off to the Justice Dept. for taking steps to put passengers first – as the law requires.

“Americans traveling by train are entitled to trips free from delays caused by railroads failing to give Amtrak preference over freight trains,” Assistant Attorney General Brett Shumate of the Justice Department’s Civil Division, said in a prepared statement yesterday announcing the deal. “The settlement…as well as Norfolk Southern’s improved performance on Amtrak’s Crescent Route, demonstrates the Department of Justice’s commitment to protecting everyday American train passengers.”

Here's what Norfolk Southern signed up to:

Amtrak trains will get not just priority, but “highest priority” in dispatching on Norfolk Southern territory. N-S dispatchers will get extra training to ensure Amtrak priority, and if there’s a non-emergency situation that requires Amtrak trains to lose priority, a dispatcher’s supervisor must approve it. And Norfolk Southern has to provide the Justice Dept. with records on any delays involving the Crescent – the route whose poor timekeeping prompted DOJ’s initial action in Federal court in July 2024.

Norfolk Southern’s Vice President of Compliance will annually certify to DOJ that Norfolk Southern is keeping up its end of the agreement and its obligations under the law to provide Amtrak trains preference. There are a lot of (former) shady defense contractors in jail right now for “certifying” things to DOJ or the Defense Dept. that weren’t true. This is a serious commitment.

In its statement yesterday announcing the settlement, DOJ pointed out that ever since Justice hauled Norfolk Southern into Federal court, the number of delay minutes on Amtrak’s Crescent trains has declined 53 percent.

How curious…

It’s still true that because of this settlement, and the similar settlement reached between Amtrak and Union Pacific over its Surface Transportation Board case, we still won’t have a formal adjudication on just what it means, precisely, for a railroad to give Amtrak trains “preference.” The 52-year-old statute – 49 U.S.C. § 24308(c) – reads that host railroads must give Amtrak “preference over freight transportation in using a rail line, junction, or crossing” unless: (1) there is an emergency; or (2) a host railroad asks the STB for relief, and the STB orders otherwise.

But even so, I’m incredibly encouraged that the Justice Dept. has remained consistent, holding to the position it took last year that when host railroads engage in a pattern and practice of dispatching Amtrak trains without preference, it’s against the law. The very first line in DOJ’s statement yesterday uses the phrase “in violation of Federal law,” and the statement repeated that construction later.

We may not have a formal definition of “preference” either from a Federal judge or the STB, but we have clearly expressed congressional intent…and now we have a concept of “preference” agreed to by Amtrak, Union Pacific, Norfolk Southern, and the U.S. Justice Dept., which will serve us well as a reference in any future on-time performance dispute. In this instance, I’m really glad I was wrong.