Fuel surcharges compromise a significant portion of all-in rail rates. By 2014, the Surface Transportation Board (“STB”) recognized that its “safe harbor” for railroad fuel surcharges allowed railroad profiteering. In May 2014, the STB initiated a rulemaking proceeding to reexamine the safe harbor. Slover and Loftus’s client, the Western Coal Traffic League (“League”), made a detailed demonstration that railroads were collecting hundreds of millions of dollars in profits for excess fuel cost recovery. Many other shipper parties supported the League’s position. The comment period closed in October 2014, but the STB did not take any action. In 2017, the League asked the STB terminate its regulatory freeze in the fuel surcharge and three other long-pending proceedings, but the STB again failed to act.
On April 9, 2019, the League filed a petition for a writ of mandamus in the D.C. Circuit. The League requested the Court direct the STB to take action in the proceeding that had been stalled for over five years. In May 2019, the D.C. Circuit issued an order requiring the STB to respond to the League’s petition within 30 days. Such orders are not automatic and are issued only when the petitioner raises serious issues that warrant a response from the agency.