CSX railroad argues against D.C. ban

But a House Democrat’s bill introduced last Congress that sought to develop a national policy on rail security was opposed by a trade association representing railroads, including CSX.

CSX now is seeking to prevent cities from adopting prohibitions such as a Washington, D.C., City Council ban on the transportation of hazardous materials through the city, according to a lobbyist working for the railroad.

Mayor Anthony Williams (D) signed the Terrorism Prevention in Hazardous Materials Transportation Emergency Act of 2005 on Feb. 15, immediately prompting a fight with CSX, which has two major rail lines that run near or through the city.

The company is “of the view that we need a comprehensive rail-security program as opposed to the piecemeal of local rules and regulations that are completely unrelated to homeland security,” said Rob Housman of Fleishman-Hillard Government Relations.

CSX hired Fleishman-Hillard to lobby Congress and the administration on the issue.

The ultimate lobbying strategy may depend on the outcome of a federal court case between CSX and the city. A judge will hear the case next week. The ban is scheduled to go into effect April 11.

The rail company says the ban exceeds the city’s power because it violates federal jurisdiction over interstate commerce. The city, according to documents provided to the Surface Transportation Board, which also reviewed the case, says the ban provides enough wiggle room — hazardous materials could still be sent through if no alternative route exists and the city issues a special permit — not to run afoul of the Commerce Clause in the Constitution.

The Surface Transportation Board sided with CSX, issuing a nonbinding advisory opinion this week that found that the city’s ban would “unreasonably interfere with interstate commerce.”

The ban prevents the transportation of such things as explosives and flammable and poisonous gases within a 2.2-mile radius of the Capitol without a permit from the city. Chlorine and propane are two substances affected by the ban.

Councilwoman Kathy Patterson (D-Ward 3) co-sponsored the ban. A statement put out by her office before the February City Council vote cited an expert witness who had testified that an attack on a large hazardous-material shipment could “create a deadly toxic cloud extending 14 miles and kill or injure as many as 100,000 people.”

“We are one of the two top target cities for terrorist attacks and have to do everything in our power to prevent terrorist attacks,” Patterson said in the release.

Environmental groups such as the Sierra Club have defended the city’s ban.

Rep. Edward Markey (D-Mass.), a member of the Select Committee on Homeland Security, plans to introduce a bill based largely on a measure of his that failed in the 108th Congress. The bill would direct the Homeland Security Department to issue a new rail-security rule that beefs up security along rail routes. It would also force the department to reroute hazardous wastes around “areas of concern,” which would be defined by the secretary, if a safer route exists.

A wide array of industry groups, including the Association of American Railroads, lobbied against the measure, saying the bill would shift the risks of transporting hazardous materials from “one locale to another” and damage the overall national economy.

The administration made a similar argument to the transportation board regarding the D.C. ban.

Communities that ban the shipments “shift the risk to others,” the Transportation Department said in a filing to the transportation board. The departments of Homeland Security and Justice and several members of Congress, including Reps. Tom Davis (R-Va.) and Steve LaTourette (R-Ohio), also said they oppose the D.C. ban.

In a recent letter to the board, Davis, chairman of the House Government Reform Committee, said the ban undermines the “efficiency and efficacy of the national rail network.”

CSX argued in its filing to the transportation board that federal regulations already establish safety standards, including the movement of hazardous materials. The rail company said that after Sept. 11, 2001, it worked with the Transportation Security Administration, now part of the Homeland Security Department, to develop a specific security plan.

In 2004, federal regulators directed “enhanced security measures.” But some of those have yet to be implemented, according to the railroad’s own statements to the transportation board.

Housman said a “handful” of cities are considering similar bans. Pittsburgh’s City Council has also looked at the issue, according to news reports.

Such limitations on railroads would shift the hazardous materials to trucks, which are more vulnerable to terrorists, Housman contends.

“If a terrorist wants to hijack a train, where is he going to take it?” Housman said.

 Congress may take up a railroad-infrastructure measure, in addition to security measures such as Markey’s, to make it easier for railroads to finance improvements along rail lines.

One question is likely to be who would pay for the improvements.