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Another Regulator Jumps in the CBR Fray 

In what is not the first and certainly won’t be the last effort by a state or local government to regulate movements of crude by rail, the Governor of Pennsylvania this week announced the results of a report he commissioned to assess the safety of crude by rail movements in that state.  In May, the Governor commissioned Dr. Allan Zarembski, a University of Delaware professor, to analyze the safety of crude by rail shipments in Pennsylvania and to make recommendations to improve it.  The report suggests a laundry list of 27 changes.  Among the proposed recommendations are a few changes that can be implemented by the Commonwealth, such as filling state inspector vacancies and requiring state inspectors to focus their energies on CBR routes, but the majority of the recommendations are directed at rail carriers.

The response of the carriers has been polite, with CSX and NS both noting that many of the recommendations are similar to the best practices they already follow.  In the end, however, even if Pennsylvania chooses to adopt these recommendations as law, they are likely to be struck down as preempted by Federal law.  Railroads with their nationwide service and common carrier obligations have long used ICCTA preemption to fight off efforts by state and local governments to adopt their own regulatory schemes.  The carriers are not trying to evade the law; they simply cannot operate fluid, interstate transportation services if the rules of the game change each time a car crosses a municipal border or state line.  Congress established specific agencies at the Federal level with deep industry expertise to develop and implement railroad safety rules precisely to avoid the development of a hodgepodge set of ever-changing regulations.

While the Governor’s goal to improve safety is laudable, his efforts may have greater impact by focusing on improvements that can be made by the Commonwealth’s own agencies, rather than on local safety rules that will likely never survive a Federal preemption challenge.

Additional coverage on the topic can be found here.