Court Rules D.C. Can't Ban Hazmat Shipments by Rail

Here's an update on a story we first covered in the June issue ... The city of Washington, D.C., has struck out in its effort to ban certain hazardous material shipments on railroad tracks within two miles of the U.S. Capitol building. In a case...


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Here's an update on a story we first covered in the June issue...

The city of Washington, D.C., has struck out in its effort to ban certain hazardous material shipments on railroad tracks within two miles of the U.S. Capitol building. In a case that has been closely watched by other cities, the U.S. Court of Appeals for the District of Columbia ordered a federal district court to grant a permanent injunction to CSX Transportation that stops the city from enforcing the hazmat ban it passed last February. However, despite the higher court's ruling, at least a half-dozen big cities are considering similar laws to restrict rail and truck cargoes passing through their jurisdictions.

CSX had strong support from powerful federal agencies who also opposed the hazmat ban. Their allies included the Departments of Justice, Homeland Security, Transportation and the U.S. Surface Transportation Board. They argued that the city's action was unconstitutional and violated interstate commerce laws. CSX claimed it would cost $2 million to $3 million a year to reroute trains carrying hazardous materials and would merely shift the problem from one place to another.

Washington's position is that the area around the national capitol contains unique and symbolic targets for terrorists to attack by wrecking a train loaded with explosives, flammables or poisonous chemicals. The CSX main line carries heavy freight traffic, including hazardous materials, and passes within a few blocks of the Capitol, the White House, the Supreme Court, congressional office buildings, museums and a dozen cabinet departments. There also is a mile-long tunnel under Capitol Hill that is used by commuter and Amtrak passenger trains. A fire, explosion or toxic cloud in this district could result in thousands of casualties and, in effect, turn a freight train into a weapon of mass destruction.

As we reported in June, the U.S. district court originally decided in favor of the city, but CSX was granted temporary relief when the Court of Appeals ruled that freight trains hauling hazardous cargoes could continue to use the tracks while the case was being decided. It was sent back to the lower court for a full hearing, where Judge Emmet Sullivan again rejected CSX's arguments and refused to issue an injunction against the city. Citing security concerns, the federal agencies refused to disclose what measures were being taken to prevent a railroad hazmat attack. Judge Sullivan then ruled that the city had the right to impose the ban as a means of dealing with the hazmat and terrorist threat. CSX immediately went back to the U.S. Court of Appeals, which reversed Judge Sullivan's decision and ordered him to issue the injunction that now prevents Washington's hazmat ban from taking effect.

As this is written, it is uncertain whether the city intends to continue the appeal process all the way to the Supreme Court. It also is not clear what action, if any, Congress might take to establish a national policy on interstate hazardous material shipments. With both the Senate and the House firmly controlled by conservative Republicans, it's unlikely they would favor more federal regulation.

However, despite the latest court decision, Trains magazine reports that major rail centers like Baltimore, Cleveland, Los Angeles, Pittsburgh, Philadelphia and St. Louis are among the cities considering railroad hazmat restrictions. After seeing the damage and loss of life that a train derailment can cause, especially when hazardous materials are involved, it's easy for cities to be spooked at the thought of terrorists using freight trains as weapons. The crucial question is whether the federal courts in those regions would rule any differently than the District of Columbia's Court of Appeals.

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