On July 12, 2022, the NAM filed an amicus brief in the 5th Circuit in support of BNSF’s challenge to the Federal Railroad Administration’s refusal to allow BNSF to expand its use of Automated Track Inspection (ATI)—a deeply flawed policy decision implemented through an unlawful exercise of administrative authority. Long championed by the FRA, ATI technology offers track inspections that are far superior to those performed with the naked eye, while also reducing the need to shut down tracks for manual inspections. This case arose after the FRA promised BNSF that if it successfully implemented its ATI program in two territories, it could expand. After the change in administration, however, the FRA reversed its position—denying BNSF’s request to expand even though ATI had dramatically increased safety in the pilot territories.
The NAM filed an amicus brief arguing that the FRA’s decision harms the American economy and violates basic principles of administrative law. With the U.S. supply chain under tremendous pressure, ATI technology is critical to ameliorating the significant operational and service challenges faced by America’s freight network. If the FRA’s decision stands, it will negatively impact the railroad industry at an especially challenging time for the American economy. Further, the FRA’s decision—denying expanded use of ATI despite BNSF exceeding the prior metrics the FRA had set and the FRA’s broad historical support for the use of ATI—epitomizes arbitrary and capricious decision-making. Hornbook administrative law requires an agency that changes policy to at least acknowledge the shift and to offer some reasoned justification for adopting its new policy—requirements the FRA plainly failed to satisfy.
Happily, on March 15, 2023, the 5th Circuit concluded that "the agency has barely articulated any basis at all" for its rejection of the technology's expansion even though it is "duty-bound to provide further justification[.]" The 5th Circuit therefore vacated the FRA's decision and remanded the case for FRA to issue a new decision within 100 days.