The Trump administration on Monday moved to roll back an Obama-era safety rule mandating that oil trains carrying crude oil install more sophisticated brakes.
The Department of Transportation’s Pipelines and Hazardous Materials Safety Administration said that it found the cost of installing electronically controlled pneumatic brake systems, which reduce the risk of car derailment, would be higher than the safety benefits it delivers.
This mimics claims from the railroad industry, which has said that installing electronic breaks on oil rail cars would cost $3 billion.
Around 20 derailments, including accidents with fatalities, have occurred since 2010, in part due to increased train traffic due to a boost in oil production. (Details at The Hill, Fortune, Buzzfeed.)
How Supreme Court Pick Brett Kavanaugh Could Return US Policy to the Era of Robber Barons
By Sharon Kelly • Wednesday, September 5, 2018 – 11:39
Judge Brett Kavanaugh. Credit: C-Span screen shot
As Judge Brett Kavanaugh’s Supreme Court nomination hearings get under way, understanding his appointment’s potential impacts for corporate regulation and the climate means looking back all the way to 1890.
That was when a nearly 50-year stretch known to legal historians as the “Lochner era” kicked off — a time better known in U.S. history as the age of the robber barons.
The Lochner era gets its name from a 1905 Supreme Court case, Lochner v. New York, which threw out state limits on the number of hours bakers could work in a week. This case’s reasoning was later overturned by the U.S. Supreme Court in a 1937 case that rejected a half-century of judicial thinking — doctrines that had led the court to toss out laws governing working conditions, creating food safety standards, and barring child labor.
In 1937, as the Great Depression raged, the Supreme Court faced pressure from President Franklin Delano Roosevelt, frustrated after the Court rejected 11 of 13 early New Deal programs as unconstitutional. The Constitution doesn’t say how many justices are allowed to sit on the Supreme Court — and FDR threatened to add enough justices to change the court’s leanings.
Not long after FDR’s threat, Justices Owen Roberts and Charles Evans Hughes joined majorities that rejected Lochner and found the new National Labor Relations Board constitutional — a move that’s gone down in legal history as the “switch in time that saved nine.” (Nine being the number of justices sitting on the Court.)
During the Lochner era, the Supreme Court followed a “non-delegation doctrine” that required Congress to play an active role in the most minute details of decision-making and policy-setting.
Bringing it back could have huge significance for how the U.S. regulates the environment, food safety, the Internet — and global climate change.
Bringing Lochner Back?
After the Lochner era ended, the Supreme Court allowed Congress, which writes the laws, to delegate the details of rules and regulations to government agencies in the executive branch, which enforces laws. So, for example, the U.S.Environmental Protection Agency (EPA) can decide just how much of a given chemical is safe in a city’s drinking water — and change those rules as new hazards are uncovered — without getting both houses of Congress to sign off on every detail.
Taken to the extreme, uprooting its ability to delegate could require Congress to write or approve every new federal rule and regulation, a herculean task in a country of over 300 million people. The House and Senate’s 535 members would also have to tackle jobs currently performed by dozens of federal agencies like the Food and Drug Administration (FDA), the Federal Communications Commission (FCC), and the Department of Agriculture (USDA).
But there are signs that the Supreme Court might allow the non-delegation doctrine to slip back into the law. In March, the Supreme Court agreed to review a case called Gundy v. United States, limiting its review to non-delegation issues.
And with Justice Kavanaugh shifting the court far to the right, that relatively obscure case might represent a major opportunity for corporations to chip away at the foundations of America’s regulations, including its environmental protections.
“This is a really important sleeper case,” Sean Hecht, a law professor at University of California, Los Angeles told McClatchy in June, before Kavanaugh was nominated on July 9. If the Supreme Court handed down a broad ruling, “[p]arties would feel emboldened to say, you can’t make us do this under the Clean Air Act, or Clean Water Act, or the Endangered Species Act, because Congress wasn’t precise enough in the policy guidance it gave the agency.”
The Gundy case, which involves a dispute over the Sex Offender Registration and Notification Act, directly relates to criminal, not civil law — but legal observers warn that reviving non-delegation in any context could open the doors to hard right-wing judicial activism in much broader contexts.
“There are many on the right that want to upend nearly a century of law,” said Lisa Graves, co-director of the watchdog group Documented and a former Deputy Assistant Attorney General, warning that Kavanaugh’s appointment could kick off a move back towards the Lochner era.
Kochs and Kavanaugh: The Laissez-Faire Link
The Lochner era’s laissez-faire philosophy — a hands-off, “let it be” approach that promotes slashing corporate regulation in the name of limiting government power — is one that many Koch-affiliated organizations and right-wing think tanks share today.
Kavanaugh, a long-time Federalist Society member who briefly resigned at the start of his tenure with the G.W. Bush White House Counsel, has remained active at Federalist Society events, though in 2001 he sought to distance himself from the conservative legal group in the press.
“The Federal Society role here is extraordinary,” said Graves. Leonard Leo, who has served for years as the society’s executive vice president, took a leave to advise President Trump on judicial nominees. He helped craft the list used by the Trump administration to decide who to appoint to Supreme Court vacancies.
By speaking at and attending many of the Federalist Society events, Kavanaugh maintained a close connection to the group after he became a judge in D.C.’s U.S. Court of Appeals.
“Judges are like jewels in the crown of the Federalist Society,” Graves said. “In essence, his involvement lends the prestige of his office to that organization.”
When it comes to climate change, Kavanaugh can see that there is a problem. “The earth is warming. Humans are contributing,” he said in 2016. “There is a huge policy imperative. The pope’s involved.”
But in 2016 during oral arguments for a lawsuit against the Clean Power Plan, Kavanaugh’s reasoning against Obama’s signature climate change program took on a Lochner-esque tone as he argued that Congress hadn’t clearly delegated authority for Obama’s EPA to regulate carbon emissions under the Clean Air Act. “Global warming is not a blank check, either, for the President,” Kavanaugh said.
During hearings on his appointment to the D.C. Circuit, Kavanaugh called Lochner a “classic example of judges superimposing their personal views on the decision-making process in an improper manner.”
“Yet after ascending to the D.C. Circuit in 2006, Kavanaugh proceeded to follow the example of the Lochner justices,” Slate reported in July.
“Judge Kavanaugh isn’t anti-environmental, but he tends to be anti-agency,” Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, told Inside Climate News. “He’s often struck down regulation that he didn’t think Congress had authorized explicitly enough.”
Things Heat Up in Alaska and Maine
The two Republican Senators seen as most likely to shift course on Judge Kavanaugh’s appointment to the Supreme Court are Senators Susan Collins and Lisa Murkowski. They hail from two of America’s northern-most states. And those two northern states, Alaska and Maine, have already begun to feel the consequences of a changing climate.
In Alaska, the climate has been warming so fast, the Washington Post reported in January, that computers rejected data from Barrow, Alaska’s climate monitoring stations because the temperatures were so high that the algorithms assumed something had gone wrong with the monitors (it hadn’t.) Some parking lots and airport runways in the state are now equipped with cooling systems to keep the pavement from buckling as permafrost melts — a problem that’s putting building foundations at risk too.
Meanwhile Maine’s iconic lobsters are under threat not only from ocean acidification, but also from warming seas and invasive marine life. The state’s been experiencing a “marine heatwave” that’s raised ocean temperatures more than 10 degrees above normal levels.
Neither Collins nor Murkowski, who both have broken from party lines in the past, has a stellar track record on climate issues, but polls in their home states have shown strong public support for action.
The impacts of a Supreme Court appointment can be expected to long outlast the Trump administration’s time in office — potentially adding years or decades of delays if a later EPA seeks to take action on the climate.
To some degree, limits on government powers are right in line with a more moderate conservative view.
But the non-delegation doctrine is linked to some of the furthest excesses of unchecked capitalism, Supreme Court justices have pointed out. “Once we start down the road of saying Congress cannot tell even a private agency to go and make some standards, which we all know will be followed, once we start down that road there is no stopping place,” Justice Steven Breyer warned during oral arguments in 2014.
And that would serve the goals of some among the most extreme right-wing activists in the U.S. today. Trump’s former chief strategist Steve Bannon called for the “deconstruction of the administrative state,” the New York Times reported in February 2017.
A full revival of Lochner would go a long way towards achieving that goal — and the consequences for the climate could be dire.
Public document from FEMA [Editor: The seven recommendations appear on pages 4-7. Pages 8-10 detail some interesting new technologies in responding to HAZMAT emergencies. – RS]
Background:
The RESPONSE Act of 2016 directed the Federal Emergency Management Agency (FEMA) to establish the Railroad Emergency Services Preparedness, Operational Needs, and Safety Evaluation (RESPONSE) Subcommittee… to provide recommendations for improving emergency responder training and resource allocation for HAZMAT incidents involving railroads.
Final Report And Recommendations
Click to open the REPORT
The final report, Ensuring Rail Preparedness: Improving Responder Training and Resource Allocation for Rail Hazardous Materials Incidents, contains seven recommendations that the NAC approved, based on proposed recommendations submitted by the RESPONSE Subcommittee.
The Trump Admin’s Misleading Justifications for Repealing This Oil Train Safety Rule
By Justin Mikulka • Sunday, December 10, 2017 – 05:02
Image: Justin Mikulka
On December 4, the Department of Transportation (DOT) announced it would repeal a critical safety regulation for modern braking systems on the same oil trains which have derailed, spilled oil, caught fire, exploded, and even killed dozens in multiple high profile accidents in recent years.
The regulation, released by the DOT‘s Pipeline and Hazardous Materials Safety Administration in mid 2015, required that oil trains have modern electronically controlled pneumatic (ECP) braking systems by 2021. However, in the latest iteration of its review process for this rule, the DOT is now doing an about-face.
Why would the DOT, as the regulator responsible for protecting 25 million people who live along railroad tracks carrying oil trains, reverse course on a technology hailed as “the greatest safety improvement” for modern trains? Let’s take a look at corporate influence on the regulatory process.
In 2015, shortly after these regulations were announced, Matthew Rose, CEO of oil-by-rail leader BNSF, stated that the rail industry would not accept the requirement for ECP brakes, telling an audience at the annual Energy Information Administration conference that “the only thing we don’t like about [the new regulation] is the electronic braking” and “this rule will have to be changed in the future.”
Two years later, Rose appears to have been granted his wish.
The Congressional Cop Out
The first stop for CEOs who don’t like regulations is their friends in Congress. After an initial failed attempt to get the Senate to repeal the ECP brake requirement on oil trains, the groundwork to repeal this regulation was laid in the research requirements in the FAST Act of 2015. The FAST Act was a massive transportation bill, and within its thousands of pages, it said this:
The Secretary [of Transportation] shall enter into an agreement with the National Academy of Sciences to–
(A) complete testing of ECP brake systems during emergency braking application, including more than one scenario involving the uncoupling of a train with 70 or more DOT-117 specification or DOT-117R specification tank cars
Testing framework.–In completing the testing under paragraph (1), the National Academy of Sciences and each contractor described in paragraph (2) shall ensure that the testing objectively, accurately, and reliably measures the performance of ECP brake systems relative to other braking technologies or systems, such as distributed power and 2-way end-of-train devices. [Emphasis added.]
While this sounds like a good starting point, it fails to acknowledge the large body of existing research which has already answered these questions. ECP brakes perform much better than other, older braking systems.
It’s only recently that the railroads and their lobbyists at the AAR have changed their minds. However, that doesn’t change the existing science that shows ECP brakes are superior — and safer.
However, even pushing aside previous studies — such as the 2006 FRA funded one which calls ECP brakes “a tested technology that offers major benefits in freight train handling, car maintenance, fuel savings, and network capacity” which “could significantly enhance rail safety and efficiency” — perhaps the National Academy of Sciences (NAS) could provide valuable confirmation of these safety benefits with its own study.
Perhaps performing yet another review of ECP brakes would convince industry and its lobbyists of this technology’s value?
But rather than having the DOT base its final decision to require ECP brakes on a larger body of existing evidence, Congress called on the NAS to perform a single study to determine if ECP brakes were safer than the brakes currently in use on oil trains. That is already a highly suspect approach, but one which provides the appearance of integrity.
So, what did the NAS conclude?
It wouldn’t do the study, because, as the academy said in a March 2016 letter to the FRA, it would be too expensive. This is the DOT’s explanation:
“In the letter, NAS referred to a preliminary cost estimate of more than $100 million provided by the Association of American Railroads (AAR) to perform the testing … Additionally, NAS believed it was ‘highly unlikely’ that the schedule [for performing the study] … could be met.”
The one and only study that would determine the fate of this regulation was never performed, but make note of who provided the extremely high cost estimate: the AAR. This is the same trade group whose CEO said, “Industry research and years of experimenting in real-world operating environments show ECP brakes are unreliable and have a minimal safety impact over conventional braking systems currently in place.”
In other words, lobbyists for the railroad industry were charged with estimating the cost of conducting a test to evaluate a safety technology they were on record of opposing and their price tag was so high that the testing never happened. They also apparently told the NAS that the testing couldn’t meet the required timeline. Coincidence?
Furthermore, the only facility where the testing apparently could have taken place is run by an organization fully funded by the AAR.
However, the DOT had a solution for this apparent crisis. First, they determined testing was impossible “because the specific party that DOT was required to contract with declined to do the testing as described in the FAST Act and such testing was not otherwise feasible from both a budgetary and time perspective.”
Next, the agency needed a backup plan which made it appear as if the congressionally mandated study were completed and which could also use the National Academy of Sciences to verify that plan.
As an alternative, DOT proposed to “meet the intent of the FAST Act by contracting with NAS to review and monitor a test plan” that was intended to accomplish the same goal as the study that would now not happen.
Everything was in place to “meet the intent” of the FAST Act although the intent was starting to become suspect.
National Academy of Sciences Does Not Live Up to Its Name
When the DOT announced the repeal of the ECP brake regulation, it gave the NAS plenty of credit for the decision, saying in its press release:
“The National Academy of Sciences determined it was unable to make a conclusive statement regarding the emergency performance of ECP brakes relative to other braking systems.”
However, the NAS did not actually test the performance of ECP brakes, calling into question the robustness of this statement. However, the academy was going to “review and monitor a test plan,” which it did.
While it is technically accurate to say that the NAS was unable “to make a conclusive statement” on this issue, the reality is that the academy wasn’t asked to do that. How do we know? Because the NAS was very clear about what it was not doing now that its scientists wouldn’t be studying ECP braking performance against other systems.
In the NAS report provided to the DOT as part of the backup plan, the academy said:
“This report is not intended to be a comprehensive consideration of the performance of ECP brakes relative to that of other braking systems, nor is it intended to analyze the maximum capabilities of a brake system in dissipating energy during an emergency braking event and reducing the incidence and severity of spills from derailments.”
What the NAS did instead was examine the DOT’s own research and testing on ECP braking and conclude it was lacking in several areas.
The DOT statement makes it appear that NAS performed original research or reviewed the breadth of existing research and was unable to reach a conclusion. Neither of those are true.
And in an NAS letter, Louis J. Lanzerotti, the chair of the NAScommittee giving its blessing to all this, went out of his way to clarify what the committee was not doing in a slide titled, “Aspects Outside of the Statement of Task.”
Now, remember what the DOT said about the national academy’s role in the decision to repeal the regulation.
Yet the chair of the NAS committee charged with this task specifically said a conclusion on the emergency performance of ECP brakes versus other braking systems was outside its purview. This makes the DOT statement seem more than a bit misleading. But it worked as major media outlets made the mistake of believing the DOT and so the public got messages like this from the media:
However, Lanzerotti’s presentation makes clear the NAS did not consider costs or benefits. Yet the academy is credited with a study supposedly making such a conclusion about costs and benefits.
Who Watches the Watchmen?
Theoretically, the regulators are supposed to be the ones keeping the public safe. But what happens when the system has been corrupted and they no longer play that role?
In theory, that is why we have the Government Accountability Office (GAO). In addition to the NAS “study,” the DOT is now relying heavily on a 2016 GAO audit to back up the safety rule’s repeal (which coincidentally was ripped apart by the agency in its initial comments on the audit).
What exactly did the GAO find? Not much. It said that the DOT could benefit from “additional data and transparency.” This GAO conclusion has been used to attack the regulation by a member of the Senate and the CEO of the AAR, and was repeated in a trade publication.
However, this is where the situation gets a bit shady. Was the DOT intentionally withholding data to try to influence the regulation? No.
The issue the GAO found was that the rail industry refused to share the data it had on ECP braking with the DOT. And yet the GAO turned a failure by the rail industry into a criticism of the DOT, even going as far as putting this in the title of its audit.
Why would the industry fail to share this information? Perhaps the reason is that its leaders know the data doesn’t help them.
The other major problem with the GAO report is that it accepted without question industry estimates for many other parts of the analysis while at the same time questioning DOT’s methods. This refusal to question any of industry’s claims is something DOT pointed out in its own highly critical comments included in the final report.
DOT asserts that the agency even provided information challenging industry claims on ECP brakes, but the GAO refused to include this information in the audit’s final report, which was then touted by critics of the regulation as reason to repeal it.
And what was the result of all this? The industry got exactly what it wanted. Under the Trump administration, the DOT now cited the accountability office’s work (of which it had been previously quite critical) as one of the deciding factors for rolling back the safety regulation.
Reality vs. Repeal
As we have been documenting here at DeSmog, there is a wealth of research and real world experience showing ECP brakes as a superior train technology. Much of that information is available in our reports from 2017, 2015, and 2014. A former head of the FRA even said ECP braking “offers a quantum improvement in rail safety.”
At a National Transportation Safety Board (NTSB) hearing in April of 2014, Richard Connor, safety specialist for the FRA, which is part of DOT, gave a presentation comparing the conventional air brake system used on most freight trains to the ECP brakes.
“I’m not sure with the audience if you all understand how the current air brake systems on our freight trains out there operate today, but it’s basically 19th century technology,” said Connor.
Connor went on to describe the performance of traditional brakes in an emergency situation as “painfully slow” when compared to ECP braking response times.
“One of the biggest advantages of ECP is that signal to apply your brakes … is going at the speed of light … it’s a much quicker signal,” he said.
That was a safety specialist for the Department of Transportation. But three years later, somehow the DOT and FRA have decided that going with “19th century technology” is the best approach.
What has changed from two years ago when the FRA told DeSmog that these brakes “could significantly enhance rail safety and efficiency”?
John Risch has some insight into that. Risch has 40 years of experience in the rail industry and is a national legislative director for SMART–TD, a labor union that represents employees on every Class I railroad, Amtrak, and on many regional and shortline railroads. As recently as 2009, Risch was operating trains hauling coal.
Commenting on the recent repeal, Risch said:
“Clearly the railroad industry’s overwhelming influence over the Trump administration is paying off in repealing the ECP brake rule. ECP brakes are the safest, most advanced braking systems in the world and without some government requirement we will continue to use our current, outdated 150 year old braking technology for the foreseeable future.”
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