All Aboard! Surface Transportation Board (STB) Issues Procedural Schedule In Union Pacific–Norfolk Southern Merger Proceeding

On August 18, 2026, the Surface Transportation Board (STB or Board) issued a significant procedural decision in the pending merger proceeding between Union Pacific Railroad Company (UP) and Norfolk Southern Railway Company (NS).  In its decision, the STB lifted the proceeding from abeyance and established a procedural roadmap for what is expected to be one of the most consequential transportation regulatory proceedings in decades. This means the merger review proceeding is now officially underway and stakeholders need to act now to protect their interests. Any stakeholders who want to preserve their right to comment on or otherwise participate in the STB proceeding must file their Notice of Intent to Participate by September 30, 2026.In the August 18 decision, the Board adopted a procedural schedule governing the substantive merit phases of the proceeding, directed the applicant railroads to submit certain additional information not included in their prior submissions, and established deadlines for opposition comments, responsive applications, and further filings. Importantly, the Board emphasized that it has not approved the merger and has made no determination regarding whether the transaction satisfies the new standard governing major rail consolidations. Rather, the Board concluded only that the record (following the submission of additional information the applicant railroads were required by the STB to file) now contains sufficient information to permit the merger review process to move forward. The merits of the transaction, including motions to dismiss the merger that were filed by several opposing railroads and shipper groups, will be addressed in subsequent Board decisions. 

Background

The proposed transaction would combine the railroad operations of UP and NS to create the first transcontinental freight railroad in the United States. Following the Board's January 2026 rejection of the applicants' original merger application as incomplete, UP and NS submitted a revised application on April 30, 2026. On May 28, 2026, the Board accepted the revised application for consideration but placed the merger proceeding in abeyance while requiring the submission of supplemental information from the applicants on various subjects.

Following additional submissions in July, the Board’s August 18 decision concluded that the record is now sufficiently developed to permit consideration of the merger on the merits.

In a subsequent decision issued on August 31, the Board extended the deadline to file a Notice of Intent to Participate until September 30 pursuant to a request from the National League of Cities. Therefore, railroads, shippers, labor organizations, local governments, ports, industry associations, and other interested stakeholders still have time to be placed on the service list for filings and decisions in the merger proceeding and preserve their ability to file comments in the proceeding. Filing a Notice of Intent does not obligate a party to file comments or take a position for or against the merger, but it is the only way to preserve a stakeholder’s ability to fully participate in the proceedings.

Merits phase begins: Key deadlines that will shape the proceeding

The Board's procedural schedule governing the subsequent phases of the proceeding includes the following key deadlines:

• Notices of intent to participate are due September 30, 2026.
• Descriptions of anticipated responsive or inconsistent applications are due September 9, 2026.
• Comments, protests, requests for conditions, and other opposition filings are due November 18, 2026.
• Any preliminary comments from the U.S. Department of Justice and U.S. Department of Transportation are due December 3, 2026.
• Applicants’ rebuttal evidence and responses to opposition filings are due February 16, 2027.
• A public hearing will be scheduled at a date to be determined.
• Final briefs are due May 28, 2027.
• The Board intends to serve its final decision on the merits of the merger within 90 days of the close of the evidentiary record.

The decision does not resolve the merits

While the August 18 decision represents a procedural victory for UP and NS, it does not answer the central question in the case: whether the proposed merger satisfies the public interest standard applicable to major railroad mergers (effectively, whether the proposed merger enhances competition). The Board specifically stated that it will address the pending motions to dismiss and arguments raised by commenters in future decisions.

As a result, parties opposing the transaction retain the ability to challenge the merger on competitive, service, labor, environmental, operational, and public interest grounds throughout the merits phase of the proceeding. Conversely, supporters of the merger may submit evidence and testimony supporting the applicants' claimed public benefits.

Additional information requirements

Although the Board allowed the proceeding to move forward, it did not completely endorse the sufficiency of all materials submitted by the applicants. The August 18 decision directs the applicants to refile certain workpapers with unfiltered data and requires additional information to be provided to the Board. The Board also denied the applicants' request for expedited treatment relating to a proposed divestiture involving the Terminal Railroad Association of St. Louis. These decisions signal that the Board intends to maintain close oversight of the evidentiary record as the proceeding advances.

Key takeaways

The August 18 decision represents an important procedural victory for UP and NS because it permits the merger review process to advance after months of uncertainty regarding the adequacy of their revised application. Nevertheless, the Board has not endorsed the transaction and has not made any substantive findings regarding competition, service impacts, labor issues, public benefits, or the ultimate public interest determination.

In addition, the Board’s procedural schedule makes it clear that any substantive decision on the merits of the merger likely will not be issued until the fall of 2027 at the earliest. This is beyond the timeline originally projected by UP and NS when they originally filed their merger application and publicly targeted closing the transaction in the spring of 2027.

Stakeholders affected by the proposed transaction should file Notices of Intent to Participate by September 30 (if they have not done so already) and should begin preparing substantive comments and evidentiary submissions in advance of the November 18 public comment deadline. The forthcoming merits phase is expected to include extensive participation by opposing railroads, shippers, labor organizations, governmental entities, and other interested parties.

The Hogan Lovells Cadwalader rail team will continue to monitor the proceeding and provide updates as the Board considers the applicants' proposal and the extensive record that is expected to develop over the coming months.