Katie Colaneri at NPR / WHYY’s StateImpact has an excellent story on the new “light, sweet crude oil” trains rolling through Philadelphia these days. The development is part of a larger, North America-wide story about the surge in transport of oil by rail (see this Reuters story and this Joseph DiStefano story for background). On the one hand, it’s good news for our local economy: the trains are on their way to the refineries in South Philadelphia, which otherwise would likely lay dormant, with a corresponding economic loss. Presumably energy costs would go up as well if the trains weren’t used.


On the other hand, as Newsworks mentions, “these shipments are coming via the same type of train that derailed in Lac-Mégantic, Quebec, last July, leaving 47 people dead and reducing the downtown to smoldering rubble.” The blast radius was apparently twice the length of a football field, and afterwards even firefighters had to be excluded for more than a half-mile from the blast due to the intensity of the flames and the dangerous debris. (Map here.) Unsurprisingly, the Manitoba government just recently rejected plans to run a crude oil line near them.


The trains come from North Dakota, by way of Chicago, Albany, and New Jersey. As this PDF map from the Pennsylvania Department of Transportation shows, the CSX trains (the orange lines) roll down past Bustleton, Fox Chase, Cheltenham, North Philadelphia, then alongside the Schuylkill, through Center City (between Rittenhouse and University City), before curving off towards the refineries and the airport. An explosion equivalent to the Lac-Mégantic disaster in the Philadelphia metro area would produce a far greater loss of life, a catastrophe in every sense of the word.


So, what’s being done to make sure we’re safe? It seems nobody knows: 


Immediately after the accident in Canada, Philadelphia’s Office of Emergency Management told StateImpact Pennsylvania it does not get detailed information about rail shipments. Two months later, the agency won’t say whether or not it has gotten any new information or updated its emergency plans.

Federal law does not require railroads to share information about hazardous shipments with them, but Philadelphia Fire Commissioner Lloyd Ayers says CSX regularly communicates with his department about these shipments.

… CSX would not confirm what or even if it’s shipping to Philadelphia Energy Solutions.

The refinery denied a request for an interview about rail safety in the wake of the Canadian accident. But StateImpact did get an invitation to the grand opening of its permanent rail facility and an e-mail from a spokeswoman saying Philadelphia Energy Solutions “enthusiastically supports” safety inspections.


In other words, railroad companies won’t even confirm what everyone knows they’re doing, nor will they even discuss rail safety, but we’re all just supposed to trust they have everything under control.


Perhaps it’d be easier to trust those same railroad companies, i.e., Conrail, Norfolk Southern, and CSX, if a train hadn’t derailed in Paulsboro, NJ, less than a year ago, spilling carcinogenic vinyl chloride — which the CDC says causes “permanent liver damage, immune reactions, nerve damage, and liver cancer” — throughout the town. Just a week ago, another train derailed around the same spot.


Clearly, safety is not the top priority in the rail industry. Indeed, it’s not even the law. As the South Jersey Times quotes U.S. Rep. Rob Andrew:


“The freight rail industry is really the only industry that doesn’t have any regulations. Today [the second derailment] is another example of why we need objective regulations,” he said. “The only people who can tell you what happened on the track today are the railroads, not the Federal Railroad Administration, not the NTSB. People can tell you the condition of the runway at the Philadelphia International Airport. I think we need a similar level of responsibility for freight rail.”


Rep. Andrew is drafting legislation to fix the problem with increased inspections and training requirements.


For the moment, the only incentive the railroad companies have to adopt minimal safety precautions is the possibility of liability after an accident — which is not as strong an incentive as it should be, given the numerous hurdles put in front of railroad accident victims.


Initially, you would think that transporting tens of thousands of gallons of a highly flammable substance through a metropolitan area would qualify as an “abnormally dangerous” activity that would make the railroads strictly liable for any harm caused by them per Restatement (Second) of Torts § 520, comment l, but that’s not necessarily the case. If you started law school after 1990, you probably read the main case on it, Indiana Harbor Belt R.R. v. American Cyanamid Co., 916 F.2d 1174 (7th Cir.1990), in which Judge Posner, writing for the Seventh Circuit, rejected the application of strict liability to an acrylonitrile spill. I could write an entire post on why strict liability should apply to a hypothetical crude oil explosion — not least the fact that it’s a far more dangerous chemical than acrylonitrile — but the point here is that it is by no means guaranteed the courthouse doors would even be open to strict liability claims by victims. Indeed, in the Paulsboro vinyl chloride spill, the railroads have already asked the court to dismiss those claims. (Brief available here.)


But even if we assume strict liability claims can be made, there’s an even bigger problem in the way: preemption. The rail industry has some regulation, but it’s ineffective and it comes with the Trojan Horse of “preemption.” The Federal Railroad Safety Act (FRSA) of 1970 gave the Secretary of Transportation broad powers to “prescribe regulations and issue orders for every area of railroad safety,” and but then preempted state laws — including tort laws like negligence and strict liability — where the Secretary has “prescribe[d] a regulation or issues an order covering the State requirement.” The railroads, in turn, have been masters of “regulatory capture” for more than a century, and so they have used their influence to convince the Secretary to issue weak regulations which don’t cost the railroads much but do cut off plaintiff’s claims when the railroads cause an accident.


The Supreme Court has decided two major cases on the issue, Easterwood and Shanklin. As Justice Ginsburg correctly noted in her dissent in Shanklin, which held that a widow couldn’t sue a railroad after her husband was killed at a crossing that lacked automatic gates or flashing lights, “The upshot of the Court’s decision is that state negligence law is displaced with no substantive federal standard of conduct to fill the void. That outcome defies common sense and sound policy.” Clever railroad injury lawyers have tried to find ways to hold the railroads accountable, with varying levels of success and heartbreak. One particularly unjust situation involved the freight train derailment near Minot, North Dakota, in which 220,000 gallons of anhydrous ammonia was released, killing one person and injuring many more. The victims filed suit, alleging claims relating to the inspection, construction, maintenance, training, and operation of the train — and the District Court dismissed them all, citing preemption.


That result was egregious enough that some members of Congress were able to tack onto the 2007 Act implementing the 9/11 Commission Recommendations an amendment to the FRSA added some important exceptions to preemption under the FRSA. As detailed by the Temple Law Review blog, The Third Circuit (the federal appellate court for PA, NJ, and DE) recently interpreted the 2007 amendment to provide that, “if a federal rule covers the subject matter of a claim, the claim can avoid preemption if there is a violation of a federal standard of care or an internal rule created to comply with a federal regulation.”


That sounds like a victory, but it’s only a partial one: recall Rep. Andrew above saying “the freight rail industry is really the only industry that doesn’t have any regulations.” So, while it’s certainly an improvement that plaintiffs can sue the railroad for violating federal standards (which they weren’t allowed to do in the Minot derailment until the 2007 amendment), those federal standards are awfully weak to begin with. The upshot of current railroad liability law then, to paraphrase Justice Ginsburg, is that federal standards don’t require much of the railroads, and the railroads also don’t believe they’ll be held accountable for the harms they cause through their negligence, because they can just claim they complied with the weak federal standard.


As the Newsworks article quotes an expert in environmental spills (Nancy Kinner, director of the Coastal Response Research Center at the University of New Hampshire), most incidents are caused by human error “where humans override a system that is designed for protection or don’t believe the data that’s being given to them or simply make a bad judgment.” That’s true, and it’s exactly why the railroad companies need more regulation and more civil liability. The effects of “human error” can be minimized, mitigated, and, sometimes eliminated with sufficient investments into training and operations, but those investments aren’t going to happen in the rail industry until they’re made fully responsible for the consequences. We dole out hundreds of millions in tax breaks to the railroad industry to “incentivize” to pad their profits under the guise of infrastructure improvements — is it too much to ask we also incentivize safety?