Congressional maneuvering during the past few weeks has dramatically altered the landscape for pending and proposed transportation legislation. Before June, legislation that would eliminate the nation’s freight railroads’ antitrust exemptions was moving swiftly through Congress as the Railroad Antitrust Enforcement Act of 2009 (introduced as S. 146 and H.R. 233). This Act would make railroad actions more susceptible to investigation by the Federal Trade Commission and the Department of Justice on antitrust and anti-competitive grounds. However, on the eve of the June 2nd cloture vote scheduled in the Senate that would have ended debate and led to a floor vote on S. 146, the bill was withdrawn from consideration. The reasoning for this action was an agreement reached between Senator Herb Kohl, the Chairman of the Antitrust Subcommittee of the Judiciary Committee and Senator Jay Rockefeller, the Chairman of the Committee on Commerce, Science and Transportation to allow the Railroad Antitrust Enforcement Act to be wrapped into a larger railroad competition bill being drafted by long-time captive shipper advocate Senator Rockefeller and others. The Rockefeller legislation is likely to focus on improving Surface Transportation Board rate challenge processes and correcting anticompetitive policies, such as providing more competitive options for railroad customers in “bottleneck” situations. Similar railroad competition legislation, termed “re-regulation” by the railroads, has failed many times in past Congressional sessions, but the climate has been most favorable this year. Nevertheless, many commentators feel that the delay coupled with issues and increased opposition from wrapping together of the Railroad Antitrust Enforcement Act with the competition legislation has slightly lessened the likelihood that any railroad legislation will be enacted in the limited remaining Congressional calendar this year.

On a broader perspective, new multi-year transportation appropriation legislation is up for passage this year. The current legislation, SAFETEA-LU, was passed in 2004 and expires September 30, 2009. On June 17th, Secretary of Transportation Ray LaHood announced that the Obama Administration would seek an 18-month extension of SAFETEA-LU, thus delaying consideration of any replacement legislation. The next day, James Oberstar, the Chairman of the House Committee on Transportation and Infrastructure, criticized the Adminstration’s extension plan and released a 100-page blueprint for the proposed Surface Transportation Authorization Act of 2009. Chairman Oberstar said that an extension would create too much uncertainty for states that need to make long-term infrastructure decisions. Conversely, Barbara Boxer, the Chair of the Senate Environment and Public Works Committee, has stated that she supports the 18-month extension. It is thought that the Obama Administration wants to avoid debate over a new multi-year transportation bill because it would require consideration of a funding source, such as the gasoline tax which was included in SAFETEA-LU. In any event, action of some sort will have to occur this summer because the Highway Trust Fund will run out of money by the end of this summer.