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transport tips continued ness. It turns out the FTC was right, because that is what Kennecott did. It seems fair to ask if Berkshire could have done the same thing, using their very deep pockets to develop a competitor to BNSF in the railroad business. Of course, we know they didn't need to because they had the spe- cial exemption accorded railroads and those that buy them. Preferential Treatment? On March 3, 2011, the Senate Judiciary Committee approved S. 49, the Railroad Antitrust Enforcement Act, sponsored by Senator Herb Kohl (D-WI). This legislation would bring railroad mergers and acquisi- tions under the purview of the Clayton Act, which would allow the federal government, state attorneys-general and private parties to file suit to enjoin anti-competitive merg- ers and acquisitions. It would also restore the review of these mergers to the Justice Department and the FTC. It would also elim- inate the exemption that prevents FTC scrutiny of railroad common carriers and the antitrust exemption for railroad collec- tive ratemaking. It would allow state attor- neys general and other private parties to sue railroads for treble damages and injunctive relief for violations of the antitrust laws, including collusion that leads to excessive and unreasonable rates. The legislation has not yet been reintroduced in the House. Horizontal, Vertical, Conglomerate, Congeneric Mergers Long before Berkshire bought BNSF they owned MidAmerican Energy Holding Co., which in 2005 owned 12 coal-fired power plants, eight of which are served by BNSF. By any definition both vertical and con- glomerate mergers existed in Berkshire Hathaway after the acquisition of BNSF, yet there was no more serious oversight than the required Hart-Scott-Rodino reviews, and Berkshire was granted "early termination" upon Berkshire's request. It is entirely plausi- ble that the plants not served by BNSF, as well as UPRR, would like to comment on the Berkshire purchase of BNSF in particular, and on the non-competitive nature of its energy and rail mergers. It seems they are entitled to more of a heads-up than publica- tion of new docket on an STB website. CURE-ing the Inequities Glenn English, chairman of Consumers United for Rail Equity (CURE), a coalition of rail-dependent shippers, issued the fol- lowing statement in July 2012: "The Surface Transportation Board's actions prove what freight rail shippers have been telling poli- cymakers for a long time: there is a funda- mental lack of competition in the freight rail industry and the process for rail- dependent shippers to get relief from monopolistic practices by industry is bro- ken and in need of reform. This environ- ment has had serious consequences for our economy and U.S. companies and farmers trying to compete globally. Shippers have long waited for the STB to act and welcome these first steps. The sta- tus quo is simply unacceptable." It should be apparent why CURE is con- cerned. However, their statement really says nothing about an acquisition approval pro- cess that is so lax a large holding company can buy one of the world's largest railroads with minimal review or interference by regu- latory authorities. Dave Gambrel is a feature writer for Coal Age, Engineering and Mining Journal and NCTA's Coal Transporter. He is the former director of transportation for Peabody Coal Co., and may be reached at bunkgambrel@earthlink.net. November 2012 www.coalage.com 21