Pre-emption: How and Why Rail Companies Are Above The Law

Read time: 4 mins

CSX is one of the major rail companies that is profiting from the oil-by-rail boom led by North Dakota’s Bakken crude oil. On September 28th, a day that is apparently national “good neighbor day,” CSX broadcast the following message on Twitter.

Which is a nice message. But CSX and the rest of the rail industry can turn into a horrible neighbor for many communities across the country. Why? Because as rail companies they are essentially above the law due to a legal doctrine known as “pre-emption.”

Pre-emption means that rail companies are not subject to any local or state laws. So if they want to build a new propane transloading facility near a school or neighborhood, they can. And CSX and others in the industry do.

A new article by the New England Center for Investigative Reporting (NECIR) details how pre-emption has allowed for the construction of oil and gas transloading facilities on rail company property with little to no oversight in communities like Grafton, Massachusetts. 

In Grafton, the owner of a small railroad constructed what is now the largest rail propane facility in the state. No construction permits were acquired. No environmental assessments completed. And as NECIR reports, the rail company’s neighbors weren’t very happy about any of this.

Residents were dumbfounded: The location was in the middle of a residential neighborhood, less than 2,000 feet from an elementary school and atop the town’s water supply.

That is the reality of pre-emption. As we’ve reported on DeSmog since oil trains started derailing and exploding, pre-emption applies to all areas of rail operations.

Rail companies believe they are not subject to “right to know” laws regarding the transportation of dangerous materials through communities.

In 2014, a train in Indianapolis containing a rail car designed to haul nuclear waste crashed into a truck that had stalled on the tracks. When asked about the crash, Indianapolis Homeland Security Chief Gary Coons told TheIndyChannel, “…we can't release that information. But we have a good relationship with CSX.”

Last year in Enderlin, North Dakota, in response to as many as 28 trains moving through the town a day, the town passed an ordinance about how long trains could block roadways. Canadian Pacific sued and the ordinance was thrown out. At the time of the lawsuit, Kansas interstate commerce attorney Bob Pottroff explained the reality to Reuters, “Right now cities don’t have the right to tell a railroad it can’t park in the middle of their town.”

And thanks to another convenient loophole, rail companies are essentially exempt from having to do oil spill response planning despite having trains carrying as many as three million gallons of oil. According to a January 2014 Safety Recommendation from the National Transportation Safety Board (link to PDF), “oil spill response planning requirements for rail transportation of oil/petroleum products are practically nonexistent compared with other modes of transportation.”

And then there are the bridges. Rail companies do not have to reveal their safety inspection record for bridges they own. And they aren’t very neighborly when concerns are raised about the safety of some bridges.

Minneapolis bridge inspector Kent Madsen explained to MPR what happens when they express concerns about a rail bridge over a roadway.

“The railroad tells us, if we don't feel safe, close the road underneath,” Madsen said. “That's our only option.”

The NECIR article also highlights the fact that the Surface Transportation Board (STB), the federal agency that does oversee rail facilities, appears to act more like a rubberstamp agency for the rail industry.

STB also exhibits the all too familiar revolving door — often resulting in STB members leaving to work with rail companies. One former STB staffer pointed out that “there is this perception [of] regulatory capture.” 

A current example of how the rail industry acts as though it is above any and all laws is the debate over Positive Train Control (PTC).

Positive Train Control is a safety system first recommended by the National Transportation Safety Board over 44 years ago.

Earlier this year when an Amtrak train derailed at a high speed resulting in eight fatalities, it was widely agreed PTC would have prevented the accident.

In 2008, Congress passed legislation requiring PTC to be implemented by all railroads by the end of 2015.

As that deadline is now only months away, railroads like oil-by-rail giant Burlington Northern Santa Fe have threatened to stop all service if they aren’t given an extension.

And the threats have paid off, as there currently is a bill moving through Congress that will grant the rail industry a three year extension.

Apparently not even Congress has any power over the rail industry. 

Image credit: matthew siddons |

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