Such is the task before the STB prior to deciding whether to allow Union Pacific (UP) and Norfolk Southern (NS) to merge into the nation’s first Atlantic to Pacific transcontinental railroad. And already a dispute has arisen over what giving “substantial weight” means when applied to expected Justice Department comments on the transaction.
Those two words appear in this opinion writer’s previously published commentary, “Is a UP-NS ‘Fix’ In? Don’t Bet on It!” —the sentence reading, in part, “… the 1995 ICC Termination Act instructed the STB to give ‘substantial weight’ to competition-related recommendations of the Justice Department’s Antitrust Division.”
Came then a missive from long-time attorney friend Bill Mullins, who represents railroads, is a respected legal scholar, who oft has been my legal mentor, and who is a fellow I’d especially choose to spend a late night with in an Irish bar (and perhaps I have). It was Bill’s office and desk I inherited three decades ago following his distinguished service as a chief of staff to ICC member Ed Emmett (my subsequent role was chief of staff to STB member Gus Owen).
As is Mullins, Emmett was a word maven. Upon spotting in a draft decision the legal term, “Nunc pro tunc” (“now for then” in Latin and meaning to allow something now to be done that should have been done earlier), Emmett questioned the Office of Proceedings as to whether they were naming a Vietnamese general—then instructing, “Write those reports for the public that pays for them and wants to understand them.”
So it is that Bill pointed out that the statutory language I cited, 49 USC 11324(d), which contains the “substantial weight” language, seems, on the face of it, to apply to other than two Class I railroads.
This humble commentator responded that a following section, 49 USC 11325(b)(1), provides, with regard to mergers of two Class I railroads, that “Written comments about an application may be filed with the Board within 45 days after notice of the application is published … Copies of such comments shall be served on the Attorney General [who heads the Justice Department] and the Secretary of Transportation, who may decide to intervene as a party to the proceeding.”
While that language, as Bill says, does not instruct the STB to give “substantial weight” to the views of the Attorney General and Transportation Secretary in a Class I merger proceeding, the expert agencies they lead are, in fact, singled out by Congress with an invitation to intervene, which seems to put them onto a higher plane than other parties.
Bill’s concern certainly has technical merit as the statute with regard to Class I mergers does not specifically instruct the STB to give “substantial weight” to the views of the Attorney General and Transportation Secretary. Yet each is specifically invited to participate, and the STB is not barred from giving their comments “substantial weight”—particularly as the Justice Department partners with the STB when defending court actions against it.
Thus, whether the Justice Department’s comments are to be given “substantial weight” by the STB is not so clear when discussing public policy. One cannot know the thought process of STB decision-makers when reading Justice Department opinions.
Bill also points out that the Justice Department’s comments in the three-decades-ago Union Pacific-Southern Pacific merger were “wholeheartedly rejected” by the STB—politely adding that this commentator was, at the time, advising STB member Owen, who concurred. Touché.
Bill might, however, consider that the Justice Department, once invited, would not expend its resources were it not of its own learned opinion that its comments should have “substantial weight” before the STB.
Were congressionally written statutes not to have interstices (ambiguities and subtleties), courts and expert agencies (as originally intended by Congress) would not be needed to fill them.
So, we shall see, and perhaps while jointly reading the STB’s decision a year or so from now while comfortable in one of Washington’s legendary Irish bars.
Railway Age Capitol Hill Contributing Editor Frank N. Wilner, previous to his time at the STB, was Assistant Vice President for Policy at the Association of American Railroads and is the author of “Railroads & Economic Regulation,” available from Simmons-Boardman Books, 800-228-9670, https://www.railwayeducationalbureau.com. He is currently revising, for republication by Simmons-Boardman Books, his out-of-print, “Railroad Mergers: History, Analysis, Insight.” Wilner, while not an attorney, is licensed to practice transportation law before the STB. He earned undergraduate and graduate degrees in economics and labor relations from Virginia Tech.
