A group representing big railroads in Virginia has regained its right to sue the commonwealth over a recent law that attempted to streamline broadband internet access. But it apparently does not want to do so, for now at least.
Virginia’s General Assembly in 2023 unanimously passed the bill, and Gov. Glenn Youngkin signed it into law, in response to complaints from internet service providers that railroads were charging them high fees to cross their lines and causing long delays to completion.
The Association of American Railroads, which represents Norfolk Southern and CSX, soon responded with a lawsuit against the State Corporation Commission, which would be arbiter in disputes under the law. The suit contended that federal law on the subject renders the recent state law “void and unenforceable,” and that the state law violates the U.S. Constitution’s “takings clause” by failing to provide the railroads with just compensation based on market value.
Richmond-based U.S. District Judge David Novak ruled in April 2024 that the industry group did not have standing to file such a claim — the railroads themselves should have to do it. A federal appeals court disagreed in a ruling last month and sent the case back to be heard again.
But a recent Virginia Supreme Court ruling about lawsuits on a parallel track appears to have done what the railroad association had hoped to do in federal court, so its lawyers asked Novak earlier this month to close the case without prejudice, meaning it could file again.
Novak issued an order last week acknowledging the AAR’s dismissal and ordered the case closed.
The state’s high court in May had ruled against Cox Communications in cases that Norfolk Southern and CSX filed, saying that the cable giant and internet service provider cannot use the state law to impose eminent domain on railways’ property while trying to reach the commonwealth’s more remote areas. The court agreed with Norfolk Southern and CSX’s arguments that Cox is a private, for-profit company taking the property for a nonpublic use, under a law that eliminated the broadband provider’s constitutional burden to prove a public use.
That decision ended another pair of federal cases, in which Norfolk Southern and CSX each had sued Cox over its attempts to use the law to place fiber optic cable through some Eastern Virginia crossings. The state and federal suits were all related to the same actions, and all parties had agreed to dismissal in Novak’s court by early June.
The Association of American Railroads’ action was the last legal case related to the law. Messages to the association’s attorneys and to the Virginia attorney general’s office, which represented the SCC, were not returned by end of office hours on Friday.
