(The following article by Carol D. Leonnig was posted on the Washington Post website on April 28.)
WASHINGTON — Although federal officials may have failed to adequately protect the D.C. rail corridor from terrorist attack, the District government may not have the power to do anything about it, a group of federal appeals court judges said yesterday.
The three judges on a panel of the U.S. Court of Appeals in Washington expressed skepticism about the District’s authority to ban hazardous materials from being shipped by rail through the city, despite what they called legitimate concerns about residents’ safety.
During oral arguments on whether the District’s ban is legal, two judges shared their doubts about whether the departments of Transportation and Homeland Security have taken sufficient steps to prevent terrorists from blowing up a rail car filled with a poisonous chlorine gas near the Mall and killing tens of thousands of people.
When an attorney for the federal government said federal agencies were working with rail carriers to make the District rail corridor more secure, Judge A. Raymond Randolph responded: “But the tracks are not secure. We’ve got photographs that show it. . . . Anybody can get on these tracks.”
He and his fellow judges — Karen LeCraft Henderson and John G. Roberts — repeatedly said, however, that a bad federal security plan for the rail lines might not give the District the power to step in with a better one. The judges said they were mindful that states cannot regulate interstate transportation issues unless the federal government has failed to exercise its authority.
The appeals court is being asked to settle a dispute that began when CSX Transportation Inc. sued in February to stop the D.C. ban, which was scheduled to go into effect two months later. The company, which daily transports dozens of rail cars carrying hazardous chemicals through Washington, argued that only the federal government can regulate rail transportation.
Mayor Anthony A. Williams (D) and D.C. Council members have said they backed the emergency law because the nation’s capital is a prime terrorist target and because they concluded that the federal government had abdicated its responsibility to reroute toxic dangers and protect city residents. This month, a trial judge refused to strike down the ban, prompting CSX to file an appeal.
Justice Department attorney Douglas N. Letter told the appeals panel yesterday that Homeland Security officials and CSX have begun a multimillion-dollar project to protect the D.C. rails from terrorist attack, including adding more surveillance cameras along the corridor. The Justice Department supports CSX in its opposition to the ban.
“Of course everyone’s enormously concerned about the Capitol,” Letter said. “Is there zero risk? No. Zero risk would mean no hazardous materials on rail and highways anywhere, and obviously that would bring commerce across the nation to a screeching halt.”
Edward Schwab, an attorney for the District, told the judges that federal agencies have done “virtually nothing” to make city rails safer since the Sept. 11, 2001, attacks. An attorney for the Sierra Club, which supports the ban, said pictures taken of the rail lines show that a plotter would face few obstacles.
Roberts asked CSX why the court should step in when Congress has the power to block the D.C. law from passage and has not chosen to do so.
“If they’re not interested in preempting this, why should we be?” the judge asked.
Roberts added that he was surprised that the federal government had not addressed rail security sooner than March 2003, when it requested that railroad companies design their own security plans for review.