Since at least 2014, the Surface Transportation Board (“STB”) has been aware that its “safe harbor” for railroad fuel surcharges allows railroads to overrecover their fuel costs, but the agency has failed to take any corrective action. In April 2019, Slover & Loftus’s client, the Western Coal Traffic League (“League”), filed a petition for a writ of mandamus in the D.C. Circuit challenging the STB’s delay. The D.C. Circuit ordered the STB to respond to the League’s petition. The STB filed its response in opposition in June 2019, claiming it had no duty to act in the proceeding.
In July 2019, the STB filed a letter informing the Court it had advised Congress that its projected target date for “next action” in the proceeding was now “August 2019.” The League filed a response the next day highlighting the STB’s statements in its June response that its “next action” dates “do not establish deadlines or timetables to take any action.” The League emphasized that the STB has twice before established “next action” dates in this proceeding only to later retract them. The matter remains pending before the D.C. Circuit.