The fact that Vena can even make the threat to begin with is, on its face, proof positive that competition between railroads is long gone for the vast majority of shippers (as we showed in Episode 6 of Reconnect America). The widespread captivity of shippers to the monopolistic railroads they depend upon is itself a product of the wave of consolidations of the 1980s and ‘90s (Episode 5). Another merger would only increase that leverage. That’s why Vena isn’t really asking shippers for support. He’s demanding it at gunpoint because he knows he won’t get it any other way.
But this is about more than just the Union Pacific-Norfolk Southern merger. Vena may or may not have jeopardized UP’s aspirations by saying the quiet part out loud. What he definitely has done is rip off the already-tattered veil that still partially shielded the issue of retaliation from public, regulatory, and congressional scrutiny.
It is past time we establish protection against retaliation for both rail shippers and the 600+ smaller short line railroads, who are also largely captive to the six remaining Class Ones. This is not just a guarantee against monopoly abuse. It is a prerequisite for any legitimate public process—whether in Congress or before the Surface Transportation Board—to ensure that this critical national infrastructure once again fulfills its public purpose and lives up to its massive potential. With the twice-in-a-decade Surface Transportation Reauthorization looming in Congress, this is the exact right moment for lawmakers to take action on this critical issue.
But before we get into the specifics of what should be done, it’s worth taking a minute to level set about retaliation and intimidation. Though the Vena clip may be revelatory for those who were waiting around for a confession from the Class Ones, many others have been beating the drum about it for a while, including our guests on Reconnect America. Last year, for instance, we spoke with Ann Warner, an attorney who represents rail shippers and serves as spokesperson for the Freight Rail Customer Alliance. As Ann explained, far from being limited to rate hikes, Class Ones have a whole arsenal of tools at their disposal to make life harder for customers who complain:
https://soundcloud.com/editor-podcast-290309107/ann-warner-on-retaliation
https://vimeo.com/1245228054
https://vimeo.com/1245228054
https://vimeo.com/1245228054?share=copy&fl=cl&fe=ci
https://open.spotify.com/episode/6SRaBJTVPhzR5mbPeKdnTU
https://open.spotify.com/episode/6SRaBJTVPhzR5mbPeKdnTU?si=f7oprbr5SoaIfyQms_rCIw
As disturbing as reports of retaliation are, it also has to be borne in mind that those who experience it constitute only a small subset of those who are seriously impacted by it. The captivity of most shippers and short lines to a single Class One, and the lack of legal enforcement or protection for those who complain means that many have too much to lose by speaking out in the first place. And that risk would remain even in a world where retaliation were merely an abstract possibility and had never actually happened. So many choose to remain silent and acquiesce to Class One demands rather than expose themselves to the potentially ruinous prospect of retaliation. This is just common sense, but for those looking for proof that this is actually how shippers and short lines think, here’s Clay Gambill of the Iowa Interstate Railroad:
Which brings us to what can be done about it. The Surface Transportation Board (STB) is the regulatory agency directly overseeing the economic side of the rail industry, including things like retaliation and abuse of market power. Over the past year, the Board has faced pressure from Senator Tammy Baldwin and others concerned with protecting the legitimacy of public processes—both in general and specifically around the UP-NS merger. (Read Sen. Baldwin’s press release on the Vena video here.) In response, the Board has repeatedly stated that it “will not tolerate” retaliation. But tolerant or not, the question is, does the STB have the tools it needs to adequately punish retaliation, and is it willing to use them? Or does Congress need to provide the Board with greater leverage and less discretion in exercising it?
Earlier this year, we spoke with former STB Chair Robert Primus, who was removed without cause by President Trump in August 2025, shortly after UP and NS announced their intention to merge. During his time on the Board, as you can hear in the following clips, Primus was palpably frustrated with, on the one hand, the Board’s apparent refusal to take the issue seriously…
…and on the other hand, the laughably low ceiling on the fines that the STB is legally allowed to impose upon railroads.
With the Vena Clip now out in the open and the STB apparently intent on digging a little deeper into the issue—at least as it pertains to the merger—it remains to be seen just how far the current Board is willing and able to go. As Primus indicates, however, a commitment to refer credible allegations of retaliation and intimidation to the Department of Justice seems like the bare minimum. And on that front, the Board remains noncommittal.
But again, with the deadline for the twice-in-a-decade Surface Transportation Reauthorization fast approaching in Congress, can we really afford to wait and see what this STB is made of? The fact that it took this long for the Board to take this issue seriously should be reason enough for Congress to act and strengthen the STB’s spine.
Besides, this is far from the only point on which the regulatory apparatus for this critical national infrastructure badly needs course correction. The common carrier obligation to provide reasonable service upon reasonable request for all commodities—an obligation that once defined and guaranteed the public purpose of U.S. railroads—has lain dormant for half a century. Regulatory exemptions granted fifty years ago for the movement of all but a few commodities have rendered this obligation inapplicable in most cases. And for those commodities that remain protected, the Board has failed in every conceivable way to give these protections any teeth. Whether one looks at rate relief for customers facing monopolistic pricing; reciprocal switching aimed at restoring a semblance of competition to a thoroughly monopolized network; or even just defining what constitutes adequate service in the first place, the Board’s efforts always seem to crumble at the slightest touch.
Congress now has an opportunity to finally protect shippers and short lines from the longstanding abuse of power by the Class One railroads. And perhaps even more importantly, it has an opportunity to protect the Class Ones themselves from predatory activist investors and the worst instincts of Wall Street to favor short-term profit maximization over long-term growth and resilience.
Surface Transportation Reauthorization (which some are revealingly calling the “highway bill”) is the vehicle to recalibrate how the U.S. reintegrates rail transport into a our national transportation strategy. Protections against retaliation must be strengthened and codified, and common carrier obligations must be revived through concrete standards of service and the revocation of fifty-year-old exemptions. Without these measures and others, we remain trapped in a regulatory system that was based on the assumption of competition between the 33 Class One freight railroads that existed in 1980. Today there are only six, with just two serving any given region. If UP has its way, that number will drop to five.
Rail transport is a solution hiding in plain sight. Restoring our national commitment to rail and its public purpose will expand benefits and reduce harms of the current transportation system, which is forcing ever-more trucks onto our highways. Rebalancing rail with road transport will deliver efficiencies and cost savings while reconnecting American communities and industries that have been left behind.
That is a victory that benefits all Americans. And it is exactly what is needed to restore public faith in government of, by, and for the people, and a national sense of common cause.
