The federal agency overseeing the safe transport of hazardous materials released a stunning explanation of its May 11 decision striking down a Washington state effort to regulate trains carrying volatile oil within its borders. A state cannot use “safety as a pretext for inhibiting market growth,” wrote Paul J. Roberti, the chief counsel for the Pipeline and Hazardous Materials Safety Administration (PHMSA).
The statement appeared in the Trump administration's justification for overruling Washington’s oil train regulation, which was challenged by crude-producing North Dakota and oil industry lobbying groups. The Washington rule seeks to limit oil vapor pressure unloaded from trains to less than 9 pounds per square inch (psi) in an attempt to reduce the likelihood that train derailments lead to the now-familiar fireballs and explosions accompanying trains transporting volatile oil.
Roberti wrote: “Proponents of the law insist Washington State has a legitimate public interest to protect its citizens from oil train fires and explosions, but in the context of the transportation of crude oil by rail, a State cannot use safety as a pretext for inhibiting market growth or instituting a de facto ban on crude oil by rail within its borders.”
With this statement, PHMSA is codifying what has been clear for some time at the regulatory agencies responsible for overseeing the transportation of hazardous materials by rail: that is, profits take priority over safety.
Rail Industry 'Pre-emption' and Safety Under Trump
A year ago, the U.S. Department of Transportation (DOT), PHMSA's parent agency, invoked the same legal argument, known as “pre-emption,” to overrule state efforts to require at minimum two-person crews for operating freight trains. As part of the explanation for that decision, the DOT's Federal Railroad Administration announced that it was adopting a policy of deregulation.
“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,” wrote the agency.
A regulatory agency announcing a broad deregulatory agenda was shocking. However, this latest move openly declares that, while Washington state may have an interest in protecting its citizens from “oil train fires and explosions,” that concern should not get in the way of the oil industry's ability to ship more of its product by rail through the state, apparently even if that increases the risk of oil train fires and explosions to Washington residents. This logic reaches a new level of prioritizing profits over people as regulatory practice.
On May 15, Pres. Trump designated @PHMSA_DOT Administrator Howard “Skip” Elliott as Acting @DOTInspectorGen after removing Mitch Behm from his position - raising concerns about conflicts of interest created by Elliott's simultaneous roles as an agency head & Acting IG.— Committee on Transportation and Infrastructure (@TransportDems) May 19, 2020
Historically, or at least, theoretically, government has based regulations on cost-benefit analyses, weighing the costs of complying for the regulated entities against the benefits, such as lives saved or accidents prevented, as a result of the new rules. Here, the DOT's new regulatory approach appears to weigh primarily the benefits for the rail and oil industries while downplaying the potential cost in human lives.
However, these industries did argue about costs to get to this point. As DeSmog has repeatedly documented, lowering the vapor pressure of oil below 9 psi is possible through a process called stabilization, which makes oil less volatile and less likely to ignite. Conditioning the oil in this way before loading on trains would require the oil industry to invest in stabilization equipment, which the industry has argued is not economically feasible.
In 2014, Myron Goforth, the president of Dew Point Control LLC, a manufacturer of stabilization equipment, put the situation in simple terms. “It's very easy to stabilize the crude — it just takes money,” Goforth told Reuters. “The producer doesn't want to pay for it if he can ship it without doing it.”
DOT's May 11 decision notes that “compliance with the [Washington] law can only be accomplished by (1) pretreating the crude oil prior to loading the tank car.” Exactly: Making the oil safe to ship on long, heavy trains through small towns and large cities requires stabilizing, or conditioning, before loading it into tank cars (just as the industry does before loading oil in pipelines or on ocean-going tankers, at least in Texas). DOT makes no argument about how companies could comply with the Washington law, outside of trying to avoid passing through the state entirely or using a different transportation mode other than trains.
A particularly telling clue behind the DOT's conclusion that the Washington law should be pre-empted is found in the commenters whose opinions the agency is highlighting: “In light of the infrastructure, equipment, and other logistical issues, the commenters have concluded that pretreating is economically infeasible or unrealistic.”
In this case, the “commenters” the DOT is referencing are members of the oil industry and its lobbyists, including the refinery company Hess Corporation, Marathon Petroleum, the American Petroleum Institute (API), American Fuel and Petrochemical Manufacturers, and the North Dakota Petroleum Council.
At an oil-by-rail conference in 2016, an API official described the industry's attitude about the prospect of requiring oil stabilization for rail transport: “We in the oil and gas industry see this as a very dangerous conversation.”
“'In Trump's America, states are on their own to protect the health and safety of their citizens — until it bumps against the wishes of the oil industry,' said attorney Jan Hasselman.” https://t.co/IErYvEIbgh— Food & Water Watch (@foodandwater) May 13, 2020
In December 2017, Trump's Federal Railroad Administration repealed an Obama-era rule requiring modern braking systems on oil trains despite overwhelming evidence that these systems improve rail safety. Sarah Feinberg, former head of the Federal Railroad Administration, offered important context about rail industry opposition to that rule.
“The science is there, the data is there,” Feinberg said of the efforts to require updated rail braking systems on oil trains. “Their argument is, despite that data, [they] don’t want to spend the money on it.”
That seems to be the rule for overseeing rail safety under the Trump administration. If a rule costs industry money to improve safety and protect the public from oil train fires and explosions, the industry will push back against its regulators, who appear to be pushovers, especially but not exclusively under Trump.
The alternative of prohibiting oil transportation by rail, because it is apparently too dangerous and too costly to do safely, is never even considered.
Ignoring the Science
The latest decision on the Washington state case continues a trend under Trump to overlook robust science when regulating oil by rail. However, you might not know it from the comments of this decision's supporters.
PHMSA used a single, flawed study from Sandia National Laboratories to support its conclusion that limiting the vapor pressure of oil moved by rail is unnecessary — while the agency ignored all the other established research on vapor pressure, volatility, and ignitability of crude oil.
The North Dakota Congressional delegation opened its statement praising the May 11 decision with lip service to science: “We thank the administration for doing the right thing by putting sound, scientific evidence above partisan politics.”
In the same vein, Ron Ness, president of the North Dakota Petroleum Council, told the Associated Press, “There is nothing unusual about the volatility of Bakken crude oil,” a claim the North Dakota attorney general has also made to argue against the Washington vapor pressure law.
And yet these statements don't stand up to scrutiny. In my book Bomb Trains: How Industry Greed and Regulatory Failure Put the Public at Risk, I present the evidence that Bakken crude oil's volatility is higher than other regions and that this factor makes a difference. This crude oil is much more volatile than traditional crude oil from Louisiana or Texas, and that volatility, along with other factors, makes it more likely to ignite in oil train derailments.
As I noted at the time of its publishing, the Sandia Labs study is deeply flawed and does not study the actual issue of oil igniting during train derailments.
As for whether Bakken oil's volatility is “unusual,” a Wall Street Journal analysis found in 2014 that “Crude oil from North Dakota's Bakken Shale formation contains several times the combustible gases as oil from elsewhere.” These combustible gases are what give the Bakken oil much higher vapor pressure levels than most other crude oils from the U.S.
The combustible gases in the oil are natural gas liquids like butane and propane, which is why the oil is so volatile.
At the same time that the oil industry tries to say Bakken oil isn’t more volatile than other oils, it argues that Bakken oil's value lies in these extra natural gas liquids. Stabilizing the oil by removing these gases from the oil not only would cost the industry money but the resulting oil would be worth less to the industry.
The DOT notes as much in its recent decision: “These higher vapor pressure hazardous materials, such as butane, ethane, and other natural gases, are deemed essential and valuable components of Bakken crude.”
The oil industry has no argument to make on a scientific basis here, only an economic one. Reducing the vapor pressure of oil by removing gases like butane and ethane makes it less volatile and less likely to ignite. That is established by research. But the industry has repeatedly argued that removing these flammable gases from the oil would make it less valuable, which is one of its justifications for not stabilizing the oil.
A Second Bakken Bomb Train Boom Could Be on the Way
The only things that have kept the estimated 25 million North Americans living along railroad blast zones safer from dangerous oil trains is the success of activists who have blocked new oil-by-rail projects and oil industry economics. Because transporting oil by rail is more expensive than by pipeline or ocean-going tankers, the industry moves much less oil on trains when oil prices are low.
Oil train protesters in Albany, New York, in May 2016. Credit: Justin Mikulka
With current oil prices at record lows in the U.S. and Canada, it doesn’t make economic sense to move oil by rail, which is good news for the millions of people living along the rails.
However, a current legal battle over the Dakota Access pipeline could make moving Bakken oil by rail a major mode of transportation, perhaps regardless of oil price.
A judge recently set a hearing to review the permitting process for the controversial pipeline, currently moving 500,000 barrels of crude per day. Depending on the outcome, that hearing could result in the judge vacating the pipeline’s permits, shutting it down and diverting all of that Bakken oil back onto the rails in a big way, at levels that would surpass the records of 2014. The Obama administration passed oil train safety regulations in 2015 in response to the fiery accidents and oil spills that coincided with the boom in oil train traffic.
The Trump administration has steadily worked to roll back the modest progress of those safety rules, with the last one, on vapor pressure for oil by rail, withdrawn from the rulemaking process the very same day the DOT pre-empted Washington's vapor pressure rule.
Now, an essentially unregulated oil-by-rail industry poses a real risk to public safety and the environment. With the Trump administration shooting down Washinton's rule and repealing previous safety regulations, the risks of moving volatile oil by rail are essentially the same as in 2013. That was the same year a train hauling Bakken oil exploded in downtown Lac-Mégantic, Quebec, and killed 47 people.
Congressman Brian Higgins is calling on the Federal Railroad Administration to immediately investigate and publicly report on the details leading to a train derailment in East Aurora on Monday night. https://t.co/og2s74xRzY— News 4 Buffalo (@news4buffalo) May 19, 2020
Today, Bakken oil is just as volatile — and dangerous. The trains pulling upwards of a hundred cars of oil have the same outdated braking systems. Regulators have no requirements overseeing train track integrity or wear (the two latest oil train derailments and fires in Canada were likely because of track failures). There are no regulations on train length. And while rail companies have phased in a newer class of tank cars, those cars have ruptured in every major derailment involving oil and ethanol trains.
The accident in Lac-Mégantic happened almost seven years ago. An early Wall Street Journal article after the accident quoted an oil industry executive who said, “Crude oil doesn’t explode like that.”
Which is true in most cases. But Bakken crude does explode like that because it is full of gases like butane, is highly volatile, and has much higher vapor pressure than most other crude oils.
While that doesn't have to be true, the Trump administration is taking steps to make sure it is.