Federal pre-emption, Federal Regulation (U.S.), State regulation

Are California foie gras, oil train court cases on parallel tracks?

Repost from McClatchyDC News
[Editor: Despite the curious analogy to foie gras, this is a SERIOUS discussion of Federal pre-emption and California’s attempt to regulate crude by rail.  Apologies for the auto-play video.  – RS]

Are California foie gras, oil train court cases on parallel tracks?

By Curtis Tate, January 15, 2015
US NEWS RAIL-SAFETY 1 WA
On April 30, 2014, a CSX train carrying Bakken crude oil derailed in downtown Lynchburg, Va. No one was injured or killed but three tank cars went into the James River, spilling 30,000 gallons of oil and igniting a fire. CURTIS TATE — TNS

WASHINGTON — Perhaps the only imaginable connection between trains and foie gras, the famous French delicacy obtained by force-feeding duck or geese to fatten up their livers, would be as an appetizer in the dining car of the luxury Orient Express.

Ah. Pas vrai.

A California court recently overturned the state law against selling foie gras because poultry regulation is a federal concern. And that’s just what the railroad industry is arguing about a state law enacted last year requiring it to develop oil spill response plans.

The law came about as an expected increase in crude oil transported to California by rail raised concerns about public safety and emergency response.

Like the restaurants that serve foie gras and the industry that supplies it, railroads have decided they won’t be forced to swallow a state law that they think is pre-empted by a federal one.

In the foie gras case, a producer and a restaurant that served it argued that California’s attempt to choke off sales ran afoul of the federal Poultry Products Inspection Act. Last week, a U.S. district judge agreed, citing the Supremacy Clause of the Constitution, which gives Congress the ability to displace state laws.

Similarly, the Association of American Railroads, the rail industry’s principal advocacy organization, and two of California’s major railroads, Union Pacific and BNSF, argue that the Federal Rail Safety Act derails the state’s oil spill response requirements.

According to some attorneys who know the issue well, California’s law is heading to the end of the line.

“I don’t think the court will struggle with this,” said Kevin Sheys, a Washington attorney who advises railroads but has no involvement in the California case. “The law will be struck down.”

Environmental groups, however, argue that other federal laws apply to the railroads. Patti Goldman, a Seattle-based attorney with Earthjustice, an environmental group, said the Clean Water Act and the Oil Pollution Act, the latter passed in response to the Exxon Valdez oil tanker disaster, gave states the power to enact stricter oil spill response requirements than federal ones.

That’s in contrast to the Federal Rail Safety Act, which doesn’t allow states much room to exceed what’s required at the federal level. A court decision that weighs more heavily on the rail safety act would favor the railroads. A reliance on federal water pollution laws would favor the state.

“The structures for pre-emption in there are almost polar opposite,” Goldman said. “The federal government sets a minimum standard, and the states can go further. All of that is a structure that is meant to preserve state authority.”

Sometimes pre-emption works in California’s favor. Opponents of the state’s $68 billion high-speed rail system tried to slow down the project by arguing that it was subject to the California Environmental Quality Act and required extensive impact reviews.

But in a 2-1 ruling last month, the federal Surface Transportation Board said the project was exempt from the state law. Last week, state and federal officials, including Gov. Jerry Brown, broke ground on the project in Fresno.

As a more practical matter, railroads have largely prevailed in pre-emption cases because courts have been sympathetic to the notion that a patchwork of 50 different state laws could unreasonably burden interstate commerce.

In a notable case in Washington, D.C., a decade ago, a federal court struck down a local law that prohibited the shipment of hazardous materials by rail within two miles of the Capitol. A busy CSX freight line runs only blocks away, and the law would have forced lengthy and expensive detours of hazardous cargo.

But a massive increase in the transportation of crude oil by rail in recent years, and with it an increase in high-profile accidents, has exposed gaps in safety and emergency preparedness. California is bracing for a big increase in crude by rail, and last year the legislature extended the state’s oil spill response requirements to cover inland waterways.

That, naturally, affected railroads, which historically followed rivers because of the level terrain for heavy trains, including California’s Feather and Sacramento rivers.

The Association of American Railroads declined to comment on the California case, but spokesman Ed Greenberg noted that railroads “have extensive emergency plans in place, which include procedures in working with local first responders” and have “stepped-up emergency response capability planning and training.”

David Beltran, a spokesman for California Attorney General Kamala Harris, who’s defending the law, wouldn’t comment on the case beyond what’s in court filings.

State Sen. Jerry Hill, a San Mateo Democrat, said the attorney general’s office had assured him that the law wouldn’t be pre-empted when it came before his committee last year.

“We feel comfortable based on the legal opinions we have,” Hill said.

He thinks it’s premature to predict that the law will be invalidated. But Hill said that he and others who supported it should be prepared for that outcome.

“Everyone would regroup and try to find a way to meet the goals that we’re trying to achieve,” he said.

Harris, who’s said she’ll run next year for the U.S. Senate seat of retiring Democrat Barbara Boxer, also defended the foie gras ban. She tried to have that suit dismissed by arguing that she had no present intent on enforcing the law while reserving the right to do so.

That prompted a quip from Judge Stephen Wilson in his 15-page ruling striking it down: “Defendant seeks to have her paté and eat it, too.”

Harris made a similar argument in the rail case.

“I think it’s going to be decided the same way,” said Mike Mills, an oil and gas attorney in Sacramento. “I don’t see a different outcome.”

Mills said the California case might put a federal solution on a faster track.

The U.S. Department of Transportation issued an Advance Notice of Proposed Rulemaking in August for a new regulation that would require railroads hauling crude oil to have comprehensive oil spill response plans. The rule would apply uniformly across all states, and it would achieve what California tried to do on its own.

“Oftentimes, litigation will produce a decision that forms the basis for new legislation,” Mills said. “Potentially, it could happen.”

Crude By Rail, DOT-111, Emergency Readiness & Response, Federal Regulation (U.S.), Tank car retirement, Train speed, U.S. Department of Transportation

Groups Question Industry Influence on Oil Train Safety Rules, submit FOI request

Press Release from ForestEthics

Groups Question Industry Influence on Oil Train Safety Rules

Freedom of Information Requests Target Five Federal Agencies, Nearly 100 Lobbyists

By Eddie Scher, Jan 15, 2015

Today four public interest groups requested records exchanged between five US government agencies and nearly 100 oil and rail industry representatives on new oil train safety standards. The Department of Transportation announced yesterday that the agency would miss the January 15 deadline set by Congress and issue final rules by May 12, 2015.

“New oil train safety standards are decades late: the National Transportation Safety Board first called antiquated DOT-111 tank cars unsafe for hauling crude oil in 1991,” says Ross Hammond, ForestEthics US campaigns director. “But the administration seems to have trouble asking the oil and rail industry for common sense safety standards like speed limits, sharing information with firefighters, and a ban of the most dangerous cars.”

The Freedom of Information Act requests filed by ForestEthics, Communities for a Better Environment, Ezra Prentice Homes Tenants Association (Albany, NY), and Citizens Acting or Rail Safety (La Crosse, WI) name 97 individual lobbyists from the American Petroleum Institute, Association of American Railroads and specific oil and rail companies, including Chevron, Tesoro, and Burlington Northern Santa Fe (BNSF). Among the lobbyists named are six former members of Congress: Trent Lott, Vin Weber, John Breaux, Steve LaTourette, Max Sandlin and Bill Lipinski.

“The public has the right to know how an army of lobbyists is influencing the Department of Transportation,” says Ross Hammond, ForestEthics US campaigns director. “Oil trains carrying millions of gallons of toxic, explosive crude oil threaten the 25 million Americans who live in the blast zone. DOT should listen their own safety experts and quickly finalize strong new standards that take DOT-111s off the tracks, slow these trains down, prepare first responders and protect families.”

Government agencies and officials covered by this FOIA request are US Department of Transportation, National Transportation Safety Board, Surface Transportation Board, Federal Railroad Administration, and Pipeline and Hazardous Materials Safety Administration (PHMSA).

##

ForestEthics demands that corporations and government protect community health, the climate, and our wild places. We’ve secured the protection of 65 million acres of wilderness by pushing major companies to shift hundreds of millions of dollars to responsible purchasing. www.ForestEthics.org

Crude By Rail, Emergency Readiness & Response, Foam, Rail inspection

Survey Finds Oregon Fire Departments Not Equipped For Oil Train Accident

Repost from Oregon Public Broadcasting (NPR)
[Editor: Interesting video interview with Portland Fire & Rescue – scroll down the page.  And yes, you KNEW I would have to ask: has the California State Fire Marshall (Tonya Hoover) undertaken a similar survey?  Here is the Cal. Fire Marshall’s contact information.  – RS]

Survey Finds Oregon Fire Departments Not Equipped For Oil Train Accident

By Cassandra Profita, Jan. 15, 2015

A survey by the Oregon State Fire Marshal found 81 percent of the state’s fire departments don’t have the equipment they need to respond to an oil train accident.

In a report to Gov. John Kitzhaber’s office, the fire marshal tallied up $2.7 million in “start-up” costs for the additional equipment, personnel and training needed for the state to prepare for a crude oil incident.

The governor’s office says it’s unclear where that money would come from, but the governor is working with lawmakers to bridge the gap.

“Rail safety is a priority for the governor,” said Kitzhaber spokesman Chris Pain. “It’s very important to him to address these gaps and to figure out how to get the additional resources to support our already well-trained hazmat teams and other first responders across the state.”

Explosive oil train derailments in the U.S. and Canada over the past couple years have raised safety concerns as more and more crude oil travels by rail through the Northwest.

In response, Kitzhaber is studying what his state needs to handle an oil train emergency.

A safety gap assessment report ordered by the governor last year concluded the state needs more rail safety inspectors and training for emergency responders. It also concluded that the Oregon State Fire Marshal should find out whether fire departments are equipped to respond to a derailment if it happens here.

After a survey of 127 fire chiefs, the fire marshal has concluded that most are not; 81 percent said their departments don’t have the equipment needed to respond to a crude oil incident.

Around 50 fire departments said they’re lacking firefighting foam and oil-absorbing boom. Dozens of departments also reported lacking personal protective equipment, air monitors and foam applicators. Of those surveyed, 80 fire departments reported their jurisdictions have railways carrying crude oil or other hazardous materials.

“The overriding takeaway is a majority of fire agencies with crude oil trains traveling through their jurisdictions indicate they do not have enough equipment to respond to a crude oil incident,” the fire marshal’s report concludes.

The report recommends adding six trailers equipped with firefighting foam and protective gear at strategic locations throughout the state to make up for the shortfall.

That won’t get every fire agency the materials they would need to respond to an oil train accident, the report says, but it would spread essential equipment across the state so it will be accessible in case of an emergency. The report also notes that in addition to the $2.7 million in start-up costs, there will be ongoing maintenance costs in future years.

Scappoose Fire Chief Mike Greisen, whose agency sees about a dozen oil trains pass through its jurisdiction every month on their way to an oil terminal near Clatskanie, said his department can’t afford the firefighting foam and special training it needs to be ready in case one of those trains derails. He’s applied for a $20,000 grant to pay for his firefighters to take a training class.

“We can’t afford to practice because foam is $32 a gallon and you can go through five gallons a minute,” he said.

He said the state should step in to help local fire departments get the equipment they need.

“They really need to sit down and figure out where some funding is going to come from,” he said.

Fire Chief Tim Moor at Redmond Fire and Rescue said he thinks the railroads should bear the primary responsibility for responding to an oil train incident because the state won’t be able to afford all the equipment needed.

“They need to be accountable when they’re transporting it,” he said. “Should there be a derailment or accident, it’s probably going to come down to the private sector and then state agencies doing the best they can with the equipment we have.”

Crude By Rail, Emergency Readiness & Response, Funding for emergency response, State regulation, Washington State

Washington State: two competing bills to strengthen oil train safety

Repost from Crosscut.com / Under The Dome, Seattle WA

Oil train safety draws quick attention in Olympia

A Republican proposal has already gotten a hearing, and a Democratic one is ready to roll.

By John Stang, January 15, 2015
Tank cars hours after they derailed under the Magnolia Bridge in Interbay.
Tank cars hours after they derailed under the Magnolia Bridge in Interbay. Bill Lucia

Two competing oil-train safety bills have come into quick play in the Washington Senate.

A Republican measure, proposed by Sen. Doug Ericksen of Ferndale, received a hearing on Thursday before the Senate Environment, Energy & Telecommunications Committee, which he chairs. Also on Thursday, Democratic Sens. Christine Rolfes of Bainbridge Island and Kevin Ranker of Orcas Island introduced a bill to cover what Gov. Jay Inslee wants to do.

A preliminary Washington Department of Ecology study, released late last year, said that rapid increases in the amount of oil moving by rail in the state require new measures to protect the public and the environment.

Both bills increase per-barrel oil taxes to cover emergency response and planning expenses. Rolfes’ bill would impose charges on both crude and refined oil, while Ericksen’s addresses solely crude oil. Rolfes’ bill requires advance notice to the state of crude and refined oil going by rail, pipe or ship. Ericksen’s bill does not have those provisions.

Ericksen’s bill pays considerable attention to mapping out oil-emergency response plans by region across the state. And the Ericksen measure has more detailed provisions about providing state grants to emergency-service responders.

Thursday’s hearing had railroad, port and oil representatives supporting Ericksen’s bill, while environmental groups contended it did not go far enough.

Bruce Swisher of the Sierra Club argued that the bills must make information about upcoming oil train shipments available to the public as well as emergency departments. “The communities, not just the first responders, need transparency about what goes through their communities,” Swisher said.

Johan Hellman, representing the BNSF Railroad, said the company spent $125 million on track and crossing upgrades in Washington in 2013 and another $235 million in 2014. The railroad has also trained roughly 4,000 first responders in Washington on dealing with train derailments, he said.

In a statement, Ericksen said, “We’re trying to identify the gaps in existing programs and fill them.”

In 2013 and 2014, the United States had four oil train accidents that produced fires — one in North Dakota, one in West Virginia and two in New England. Closer to home, three 29,200-gallon oil cars on a slow-moving train derailed without any spills or fire beneath Seattle’s Magnolia Bridge last July. Looming over this entire issue is a July 2013 oil train explosion in Quebec that killed 47 people.

The report by experts hired by the state Ecology Department mapped out the oil transportation situation in Washington and the United States. Nationally, the number of rail cars transporting crude oil grew from 9,500 in 2008 to 415,000 carloads in 2013. In 2013, 8.4 percent of oil arriving at Washington’s five refineries came by rail, although the report indicates that the volume of oil shipped by rail to the refineries here was insignificant until 2011.

For safe and healthy communities…