Read time: 8 mins
By Justin Mikulka •
Thursday, May 30, 2019 - 10:42
This week, the Trump
administration’s Department of Transportation (DOT) withdrew another rail safety recommendation originally proposed
during the Obama administration. In the process, the agency made quite clear
that it has no plans to further regulate the rail industry, especially the
dangerous and continued transportation of oil and ethanol in unsafe
tank cars.
The latest proposed rule to be
withdrawn would have required two-person crews on trains. Supporters of
this rule argue that two-person crews are safer because the job of operating a
train is too demanding for one person, new technologies are making the job more
complex, and fatigue becomes a more serious issue with only
one crew member. Since 2017, the Trump administration has already repealed a
regulation requiring modern brakes for oil trains and canceled a
plan requiring train operators to be tested for sleep apnea.
In announcing this decision,
the DOT's Federal Railroad Administration (FRA) stated it
was “providing notice of its affirmative decision that no regulation of
train crew staffing is necessary or appropriate for railroad operations to be
conducted safely at this time.”
Buried on page 21 of the 25
page document explaining the decision, the FRA spells out the broader
department attitude toward rail safety:
“DOT’s approach to achieving
safety improvements begins with a focus on removing unnecessary barriers and
issuing voluntary guidance, rather than regulations that could
stifle innovation.”
As we've documented on
DeSmog before, that translates to removing existing
safety requirements and allowing the rail industry to volunteer when and
how to improve safety. When the head of the FRA is a former rail company CEO, corporate capture of
the U.S. regulatory system should come as no surprise. The rail
industry's main opposition to this rule is that it will increase costs
while claiming it will not improve safety. This is the same basic
argument used to support the industry's opposition to
other safety regulations.
FRA Overriding States'
Rights to Regulate Rail Safety
In addition, this FRA memo
contained several statements clarifying that not only will the agency back off
of regulating rail safety, it also will use the power of “pre-emption” to
make sure states can’t fill the resulting regulatory gaps either.
As we have explained before, rail companies are essentially only
accountable to federal regulators (should they choose to regulate) due to
a legal doctrine known as “pre-emption,” which exempts interstate rail
companies from observing local or state laws where they operate.
This is important in this
instance because several states have passed laws regarding train crew staffing,
and other states are considering such regulation. The FRA notes
in detail these state efforts and then says that its decision not to
regulate crew size preempts any such rules at the state level:
“FRA intends this notice
of withdrawal to cover the same subject matter as the state laws regulating
crew size and therefore expects it will have preemptive effect.”
The document goes on to cite
Supreme Court case law in an attempt to justify this approach and then
reiterates the point in its final line, saying that “no regulation of
train crew staffing is appropriate and that FRA intends to negatively
preempt any state laws concerning that subject matter.”
With this document, the FRA likely
is setting up a precedent to follow for regulating the volatility and
vapor pressure of crude oil transported by rail. DeSmog has covered in
detail the issue of oil volatility, which appears to be the key for turning oil
trains into “bomb trains,” as rail operators have dubbed them.
The last remaining rail
safety proposal on the books from the Obama administration concerns the vapor pressure of oil in rail tank cars, but that
was proposed in 2017 and the DOT website lists
the status of this proposed rule as “undetermined.”
Meanwhile, the state of
Washington has passed a law regulating the vapor pressure of oil for rail
transport. This law is being challenged by North Dakota — the source of many of the
bomb trains involved in fiery accidents, including the Lac-Mégantic, Canada, disaster that killed 47 people
in 2013 and helped inspire the proposed rule requiring two-person crews that
the Trump adminstration just withdrew this week.
Based on the FRA's
strategy with the rail staffing rule, expect to see the Trump administration
withdraw the proposed regulation on oil vapor pressure and say this move
preempts Washington state's law.
A Case Study in the Corporate
Capture of American Regulation
The FRA's decision to
withdraw the train crew rule is a great case study of a failed
regulatory system in America.
The public is supposed to have
a say in the regulatory process via the public comment process. In this
case, approximately 1,500 comments supported the regulation —
including comments from members of Congress — and 39 opposed it. The
opposition highlighted by the DOT was from rail lobbying groups the
Association of American Railroads and the American Short Line and
Regional Railroad Association. While the public can have its say, it may not
have any impact in the current regulatory process.
The FRA document
also notes that the Railroad Safety Advisory Committee (RSAC) reviewed the
issue but “was unable to reach consensus on any recommendation.” RSAC was
established by the FRA but is dominated by industry members,
including the Association of American Railroads and the American
Petroleum Institute, the latter of which is the nation's largest oil lobby
and has repeatedly misrepresented basic facts about crude oil volatility
and rail transport.
This advisory committee
doesn't have the membership to make an independent recommendation that goes
against its members' interests.
Another key point in the FRA's
withdrawal decision is that it claims there is no evidence that two-person
crews are safer than single-person crews on trains. The agency cites
industry-funded studies, which make this claim and say the regulation
would “greatly reduce U.S. railroads’ ability to control operating
costs.” Because the FRA itself does not collect data on the use
and safety of single-person crews versus two-person crews, it can’t provide any
information one way or the other.
The one clear scenario where
two-person crews increase safety is in accident situations, a point made by
many commenters and acknowledged by the FRA. In the 2013 BNSF oil train derailment and explosion in Casselton, North Dakota,
crew members were able to separate many of the oil tank cars from the rest of
the train, likely preventing a much larger oil spill and fire (which
were still large). The FRA argues that while this is true, the
same role can be played by first responders:
“While FRA acknowledges
the BNSF key train crew performed well, potentially saving each
other’s lives, it is possible that one properly trained crewmember, technology,
and/or additional railroad emergency planning could have achieved similar
mitigating actions.”
Despite making this assertion,
the agency provided no evidence of how these alternatives are possible. In the
case of oil train accidents, there are no examples of first responders arriving
in time to do anything other than back away from the often-explosive trains and
let them burn.
In the case of Casselton, the
city fire chief Tim McLean said, “I’m
glad the crew made it out of the engine because I don’t know if we would have
been able to get in there and get them.” Casselton's first responders were
working to evacuate the city, not deal with the exploding train cars.
'Keeping their Profits'
Two years ago, I wrote about
the Trump administration's and Congress's plans to de-regulate the
oil-by-rail industry, and featured a quote from Rep. Bill Shuster, who
championed finding ways to “allow the railroad industry to keep more of
their profits” at a hearing on pipeline and
rail regulations.
With rail companies now
comfortably positioned to self-regulate under the Trump administration, the
industry can continue its long (and, at times, bloody) history of putting profits over safety. The
Department of Transportation's latest move makes this approach official
government policy.
