States Clamp Down on Freight Trains Amid Derailments, Federal Gridlock

But questions loom about whether they even have that authority.

Cars wait at a railroad crossing for a CSX freight train in Homestead, Pa., June 18, 2023.
Cars wait at a railroad crossing for a CSX freight train in Homestead, Pa., June 18, 2023.
AP Photo/Gene J. Puskar

HARRISBURG, Pa. (AP) β€” Spurred on by train derailments, some states with busy criss-crossing freight railroads are pursuing their own safety remedies rather than wait for federal action amid industry opposition and questions about whether they even have authority to make the changes.

The activity comes after a train carrying toxic chemicals derailed on Feb. 3 along the Ohio-Pennsylvania border, prompting new legislation and reviving long-stalled efforts as backers voice skepticism that the federal government is capable of helping.

Legislatures in at least a dozen states have advanced measures in recent weeks, including some in states such as Minnesota that have witnessed disruptive derailments.

Some of the new requirements include provisions long resisted by the railroad industry. It contends it's capable of making improvements and that its growing efficiency β€” including significantly longer trains and a much smaller workforce β€” doesn't compromise safety.

In large part, states want limits on the length of trains that routinely stretch more than 2 miles long and on how much time trains can block road crossings β€” which can disrupt traffic and block emergency response vehicles.

They are also pursuing rules to maintain the current standard of two-person crews, bolster the trackside detectors used to identify equipment problems and require more notice to local emergency responders about hazardous freight.

The railroads argue that the industry's overall safety record has been improving even as trains have grown longer and crew sizes shrank over the decades. So Norfolk Southern CEO Alan Shaw said in an interview that he doesn't think it makes sense to regulate those areas.

"We're going to follow the science and we're going to follow the data," Shaw said. "We're looking for investments in safety that are going to drive favorable outcomes."

And the state efforts to regulate rail are fraught with legal uncertainty over whether only the federal government can enforce such requirements. And Congress and federal regulators are considering similar measures.

Ohio moved quickly, with the Republican-controlled government enacting a new law within two months of the Norfolk Southern train derailment in East Palestine.

The evacuation from the fiery crash extended into Pennsylvania, where the state House of Representatives approved a wide-ranging safety bill in early June.

The sponsor, Rep. Rob Matzie, a Democrat whose western Pennsylvania district is home to a major rail freight handling hub, said he is satisfied with the state's legal standing.

He said he is sick of hearing that the East Palestine derailment is an isolated incident, that the rail companies are making improvements or that the federal government will order safety improvements.

"It's now time for this state to act," Matzie told colleagues during floor arguments. "We can't wait for federal regulations, which always seem to be in the works, but never quite get done. Or for federal laws that will never ever see the light of day."

States maintain that Congress long ago gave them the authority to regulate aspects of rail safety that federal regulations don't cover and that courts require federal law to be clear about when that responsibility rests exclusively with a federal agency.

Railroads, however, argue that federal law broadly gives federal agencies exclusive jurisdiction to regulate rail transportation and that state laws ostensibly aimed at rail safety often do not actually improve safety.

Prior experiences haven't exactly inspired confidence that the federal government will act quickly.

For instance, a 2008 law requiring the deployment of positive train control systems β€” equipment designed to prevent train-to-train collisions, over-speed derailments and other accidents β€” wasn't fully implemented until almost 2021.

Then in 2018, then-President Donald Trump's administration dropped a proposed rule that would have required trains hauling highly flammable liquids like crude oil to be fitted with advanced braking systems.

Two rail union officials β€” Jason Doering and Matt Parker β€” who have both lobbied for legislation in Nevada for years said it's important for states to act because they're not optimistic that Congress will pass meaningful reforms over the strong lobbying of the railroads in a polarized political climate. Plus, they said "the federal government's approach to rail safety has historically been more reactionary than proactive."

The Norfolk Southern derailment in East Palestine spurred legislation in Congress that advanced out of committee in the Democratic-controlled Senate, but its future in that chamber β€” not to mention the Republican-controlled House β€” is uncertain amid industry opposition.

Sen. Sherrod Brown, an Ohio Democrat who is a lead sponsor, said earlier this month that they are still trying to line up support and predicted "pressure by the rail lobby and, frankly, from some Republican leaders to weaken or kill the bill."

Even though government data shows that derailments have declined in recent years, there were still 1,049 of them last year β€” roughly three a day. More than three quarters of them happen at slow speeds in railyards and don't cause significant damage.

The industry contends that it remains the safest way to transport hazardous materials over land. Norfolk Southern and all the major railroads have announced steps to improve safetyβ€” such as by installing more trackside detectors that railroads use to spot problems and prevent derailments β€” though regulators and lawmakers have urged them to do more.

Investigators are still working to determine exactly what caused the East Palestine derailment. In a preliminary report, they said the likely cause was an overheating bearing on one of the railcars β€” but wasn't flagged by a trackside detector early enough to prevent an accident.

Joseph L. Schofer, a retired professor of civil and environmental engineering from Northwestern University, said some rules being proposed at the state and federal level β€” for instance, minimum crew size β€” have nothing to do with the East Palestine derailment because that train actually had three people in its crew.

He also said state-to-state rules will result in chaos.

"What one state does to regulate the industry will have impacts on all states," Schofer said. "Logically we ought to be able to establish a comprehensive, integrated rule set, based on a firm understanding of the rail industry as an integrated whole."

Some bills were percolating before the East Palestine derailment.

In March, Utah Gov. Spencer Cox signed legislation creating an Office of Rail Safety, with backers citing disputes with railroads over widening roads at hundreds of rail crossings, but also derailments there.

"This is the most substantive state safety bill for my industry in over 50 years," a union representative, Danny Brewer, told lawmakers at a February hearing.

The new law empowers state employees to take over the safety inspections otherwise performed by federal inspectors, and also to scrutinize rail crossings and seek federal penalties for trains blocking highway crossings without justification.

New York is advancing wide-ranging legislation that includes standards for more safety equipment after Gov. Kathy Hochul called for rail safety measures, citing the East Palestine derailment.

In Minnesota, Gov. Tim Walz signed a bill that requires railroads to promptly provide information to public safety agencies about hazardous materials being transported.

The Kansas Senate approved a bill to limit trains to 8,500 feet, but it is sitting in a House committee at least until the session resumes in January. Gov. Laura Kelly supports it, her office said.

Some measures have hit roadblocks.

In Nevada, Republican Gov. Joe Lombardo vetoed legislation passed by the Democratic-controlled Legislature on party-line votes that would have capped train length at 7,500 feet. Lombardo said in his veto message that the bill was a "policy overreach" and possibly unconstitutional.

In Pennsylvania, the House-approved bill faces doubters in a Republican-controlled Senate where top Republicans suggest that it goes beyond state enforcement powers.

"There's some concern that what the House passed lacks enforceability," Senate Majority Leader Joe Pittman, a Republican, said in an interview. "And I don't think we're ever well-served to pass bills that can't have proper enforcement."

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