A different way to think about "freight" railroads providing access to "passenger rail transit": historic obligations should still be in force

In Chicago, Courthouse News Service reports ("Federal court gives Union Pacific green light to cut its services on three busy Chicago commuter rail lines") on a Federal Court decision ruling that Union Pacific doesn't have to provide an expansive set of services to the Chicago area Regional Transportation Authority for its Metra commuter rail service running on their tracks. 

Photo: WLS-TV.  Before the pandemic, Metra had over 300,000 daily riders Monday through Friday, with additional service on weekends.

It's not a "big deal" decision, except for RTA.  Riders shouldn't experience any real changes to the service.

Basically, RTA has to pick up elements of the operation that UP no longer wants to provide.  UP is still willing to operate and schedule the trains.  And all along, Metra has provided the locomotives and passenger cars.

Interestingly, these are not services that were historically provided, as are many of the passenger rail services still in service in Eastern and Midwestern cities, but services that were created anew in 1995.

Railroads given special access to land.  In the 1800s and 1900s, railroads were given a great deal of power over land and right of way access to create their lines and networks, out of the "Common Carrier" doctrine that they were providing a public service and equal access to service ("Railroad Right-of-Way Easements, Utility Apportionments, and Shifting Technological Realities," University of Illinois Law Review, 2002).  

At the outset, many railroads provided both freight and passenger service.  So it seemed clear that the common doctrine applied to both freight and passenger service.

Starting in the 1920s, railroads found that providing passenger service wasn't profitable or less profitable, so they began to seek various accommodations and subsidies to continue to provide the service (for example, governments would buy new passenger cars, which the railroads would operate).

Amtrak launched in 1971 to take on the responsibilities of long distance service ("Amtrak’s creation story: A nitty-gritty narrative about the origins of the National Passenger Railroad Corp.," Trains Magazine), but many railroads still provided local passenger rail service separately from Amtrak.  

With the creation of Amtrak, railroads were freed of responsibility for providing passenger rail service, although Amtrak was given special privileges to operate on those lines, at a discount.  Although even then the quality of the access can be deficient, which is finally being addressed ("BNSF shows how Amtrak and freight can co-exist," Trains Magazine, the example here is based on high quality dispatching, monitoring, and plenty of crossovers to facilitate passing slower trains).

Two tracks are better than one.  Wikipedia photo by Trivia King.

Around the same time, the Penn Central Railroad went bankrupt along with neighboring railroads and the publicly owned Conrail was created to maintain railroad service.  Eventually Congress passed legislation requiring that passenger railroad services be "downloaded" to local providers by the end of 1983.  

A similar kind of downloading happened in other areas more or less simultaneously, like with MARC picking up services in Maryland (one Conrail, two B&O), or the Regional Transportation Agency in Chicago.  

Generally, the public transit agency provided funds and other services, while the railroads operated the service.  (More recently with B&O, they said they were no longer interested in running the MARC Camden and Brunswick Lines, and a third party contractor does it now).

Halethorpe MARC Station on the Amtrak (formerly Pennsylvania Railroad) Northeast Corridor line.  Flickr photo by Ben Schumin.

It must be noted that the privileged access provided to Amtrak was not extended to the concept of passenger rail more generally, especially local "commuter" rail service.

Generally, negotiations for such service are complicated if not acrimonious at times, and commuter railroads don't get special pricing.  "Freight" railroads argue, not unreasonably, that since they don't do passenger service, any improvements designed to improve passenger rail service should be paid for 100% by the commuter railroad, with no funding from the freight railroad.

This often leads to local and state authorities buying trackage from the railroads to facilitate service improvements ("CSX Starts Sale for Virginia’s $3.7B Rail Initiative," Railway Age).

Regulatory law and a reinterpretation of common carrier and public service provisions for railroads.  I've been meaning to find a textbook on regulatory law and read up on transportation law.

Conclusion: railroads should still have common carrier obligations for access to passenger service.  My argument is that even if "freight" railroads no longer operate passenger rail service, they did when they received their charters and when the basic outline of "railroad law and common carrier doctrines" were created.  

Therefore, even if they no longer operate passenger railroads directly, they still have obligations to provide high quality access to the rail network at a reasonable price, with a minimum of complications.

And this should be extended to include both Amtrak as well as local and regional passenger rail service not operated by Amtrak.

That being provided facilitated access to land and right of way in the past means that they should still have public service obligations to provide access to their rail network for passenger service today, even though the nature of how this service is provided and operated has changed.