(The following story by Mark Ballard appeared on the Louisiana Advocate website on April 9, 2009.)
BATON ROUGE, La. — The Louisiana Public Service Commission on Wednesday assumed regulatory authority over railroads and ordered the industry to stop closing private track crossings.
After hearing heated testimony from half-dozen or so farmers, the five elected commissioners ordered railroads to apply for their permission before closing crossings across railroad tracks.
Carmack M. Blackmon, Louisiana Railroads general counsel and legislative lobbyist, said after the hearing that the order could set up another legal challenge against the PSC by the railroad industry. Federal law doesn’t allow the PSC to pre-approve the closing of railroad crossings, he said.
Railroads have been closing crossings after a spate of deaths in wrecks between trains and cars. Blackmon said the railroad industry closed about 200 private crossings across Louisiana over the past few years.
The farmers, however, counted about 1,000 closures. Crossings include bringing roads up to the level of the tracks and the equipment that allows vehicles to cross the tracks.
The Legislature in 2008 passed a law giving the PSC authority to create procedures for railroads to follow before eliminating private crossings across railroad tracks. The commissioners had not acted on the Legislature’s direction until Wednesday, when they adopted the new rules.
Private crossings are those on roads not open for public use and include access to farms, plants and residences. The state has about 2,700 of these types of crossings, Blackmon said.
Under the rules approved by the PSC, railroads must apply to the utility regulatory agency at least 180 days before the proposed closing. Railroads must provide information to the PSC and the owners of the property, including detailed descriptions of the closing, the reasons for it and an economic analysis.
Keith Post, a Tallulah farmer, testified he could no longer access his property because the railroad pulled up the crossing that had been in existence for 40 years. The railroad’s response, he said, was to demand an $8,000 fee to replace the crossing.
Jim Harper, a farmer in Rapides Parish, testified that the closing of the crossing on his land means that he has to send trucks full of sugar cane through the middle of Cheneyville 241 times a day during harvest season.
“Safety is the number issue in the industry,” Blackmon testified. “The action being taken (by the PSC) is basically an anti-safety package because it purports to prohibit the closure of crossings.”
“Excuse me, Mr. Blackmon,” interrupted PSC Commissioner Jimmy Field of Baton Rouge. “It only purports that you come before us and give us justification before you close a crossing, and we would have to make a decision.”
PSC Commissioner Eric Skrmetta of Metairie then jumped in.
“Safety doesn’t seem to be an issue when you offer a financial mechanism to allow them to do it,” Skrmetta said. “It’s not about safety if I can write a check to get my way out.”
The farmers applauded.
“I can’t stomach the concept of what you’re saying,” Skrmetta told Blackmon. “It’s just contradictory and it so flies in the face of this commission that I’m personally insulted.”
“Railroads, they’re out of control in Louisiana,” said PSC Commissioner Foster Campbell of Bossier Parish, who pushed to have the PSC resume control of regulatory authority that had been ceded to the state Department of Transportation and Development.
The PSC began its history last century as the railroad commission. Over time, as technology advanced the agency assumed regulatory control over utility companies, telephones and trucking. Its regulation of railroads was dropped in the 1970s.
The Louisiana Legislature last year passed a law giving the PSC authority to oversee safety issues involving the railroads.
The commissioners did not seize the authority initially when Louisiana Railroads, a trade association representing the industry in this state, filed a lawsuit challenging the PSC authority to collect fees. The lawsuit is pending in Baton Rouge’s 19th Judicial District court.