Fight against D.C. hazmat ban could reach Supreme Court

By John D. Schulz -- Logistics Management, 5/1/2005

WASHINGTON—For American railroads, "patchwork" is as dreaded a word as "derailment" or "chemical spill." That's because an efficient rail operation is dependent on a single, national set of regulations to be profitable. A "patchwork" of local or state regulations, on the other hand, can be costly, inefficient, and almost impossible to obey, rail executives say.

No wonder then, that the railroad industry is closely watching the court case District of Columbia v. CSX Transportation. The lawsuit is being billed as "Mrs. David vs. Goliath" in a city that's still suffering from a severe case of post-September 11 jitters.

The dispute began when the Washington, D.C., city council passed an ordinance banning hazardous materials movements through the nation's capital. Council member Kathy Patterson authored the regulation, which would prohibit Jacksonville, Fla.-based CSX from hauling hazardous materials through the District of Columbia. She says the rule is necessary to prevent a catastrophic chemical leak that the Washington mayor claims could instantly kill 100,000 people. A major CSX line runs six blocks—about a quarter-mile—from the U.S. Capitol.

But the railroad says Patterson's regulation amounts to overkill. According to CSX, last year it moved 513,000 hazmat loads with a 99.9 percent safety record. The railroad also says it has already taken steps to assure the safety of shipments around and through the nation's capital.

Rerouting all such loads would cause hazmat railcars to be delayed in rail yards for long periods, potentially increasing the risk of an attack. Shifting those loads to the highways would pose an even greater danger to the public, railroad executives assert.

The outcome of the case will be felt far beyond Washington's city limits. At issue is the extent to which localities can set their own regulations affecting interstate transportation. Historically, the federal government has won all such disputes. The railroads have cause for alarm, though, as other cities and towns are closely watching the case. Already Baltimore, Pittsburgh, Atlanta, and the state of California have indicated some interest in adopting similar regulations if the D.C. ordinance holds up in court.

At press time, CSX had the upper hand. In April, a three-judge panel from an appellate court sided with the railroad, overturning a lower court ruling in favor of D.C. just days before the ban was to take effect. CSX also has the backing of the Department of Homeland Security, the Department of Transportation, the Surface Transportation Board, and the Federal Railroad Administration. The STB said the D.C. ban "would unreasonably interfere with interstate commerce, and if permitted to exist, would likely lead to piecemeal attempts by other localities to regulate rail transportation."

When the matter first came to the lower court, U.S. District Judge Emmet G. Sullivan recommended that both sides work out a settlement. CSX firmly rejected that offer.

"CSXT is required by federal law to carry potentially dangerous chemicals, and the D.C. legislation conflicts with federal provisions," the railroad said in a statement. "CSXT has brought the legal proceedings to clarify its legal duty. It is also supported in the proceeding by a number of transportation and manufacturing groups that believe if laws like the District's are allowed to stand, they will increase danger and create chaos in the U.S. transportation systems."

The matter now heads to the full appellate court for final review; from there it's expected to move to the U.S. Supreme Court.