(The following story by Henri E. Cauvin appeared on the Washington Post website on January 24.)
WASHINGTON, D.C. — The fate of a District law banning rail shipments of hazardous materials was back before a federal judge yesterday, nearly two years after the prohibition was enacted by the D.C. Council.
The law, which was prompted by fears that the Capitol and other landmarks are vulnerable to a terrorist attack on rail lines that skirt downtown, was quickly challenged in 2005 by CSX Transportation Inc., which controls the key freight routes through the District. The law has never taken effect. Yesterday, a judge heard arguments to determine whether it ever will.
U.S. District Judge Emmet G. Sullivan set no timetable for a decision in the case, which is being monitored by cities and states throughout the country.
CSX said that the District is overstepping its legal authority and that the law, if allowed to stand, could lead other local governments to pass similar bans, crippling the transportation of hazardous materials nationwide.
Under federal regulations, rail operators bear much of the responsibility for assessing risks and determining how to deal with them — an arrangement that critics say puts public safety at the mercy of profit-driven businesses.
Tighter federal control may be coming. Last month, the federal government, which has sided with CSX, proposed more stringent regulations on the transportation of hazardous materials.
But such changes may be months or years away, if enacted at all, and in any case, the proposals fall short of the ban that the District wants to impose.
When CSX first contested the law, Sullivan sided with the District and the Sierra Club, which had joined the city in defending the law. Sullivan ruled that the law could take effect while the broader legal issues were reviewed.
But after hearing the company’s challenge as an expedited emergency matter, the U.S. Court of Appeals for the D.C. Circuit reversed Sullivan’s decision and ordered that the ban be put on hold pending review.
After gathering evidence and taking preliminary steps for nearly a year, lawyers for the two sides appeared before Sullivan yesterday for nearly two hours — on one side, Robert Utiger of the D.C. attorney general’s office and James R. Wrathall of WilmerHale for the Sierra Club; on the other, Virginia Seitz of Sidley Austin for CSX and Arthur R. Goldberg of the Justice Department.
Much of the arguments focused on whether the District’s law could be preempted by federal law. The Federal Railroad Safety Act allows states to enact laws related to rail safety or security until the U.S. Department of Transportation or the U.S. Department of Homeland Security issues a regulation covering the subject of the state requirement.
Opponents of the District’s law say the federal government, through existing federal regulations on rail security, has rejected a hazardous-materials ban as part of any federal regulation, thereby precluding such a prohibition by a local government.
Supporters of the law say that such a ban was never considered during the drafting of current regulations and that the regulations were put forth by the Department of Transportation, not Homeland Security, as would have been required to preempt a local law related to rail security.
After the arguments were presented, Sullivan proposed that both sides submit additional briefs addressing the question of which agency had the power to preempt a local law such as the District’s.