D.C. train ban challenge could hinge on 1970 rail safety law
The District of Columbia's bid to ban rail shipments of chlorine and other toxic gases may hinge on whether the federal government is already doing enough to address the terrorist threat against such shipments, a federal judge said Wednesday.
Presiding over a U.S. District Court hearing on rail operator CSX's request for a preliminary injunction to block implementation of the city law, Judge Emmet Sullivan focused on provisions of the 1970 Federal Rail Safety Act that could be construed to allow legislation like Washington's in cases where the federal government has not addressed the threat in question.
"What drove the city council to this point, I assume, because I'm hearing it again and again, is the perceived inaction of the federal government," said Sullivan, who said he would deliver a decision on the injunction request by April 8.
The judge opened the hearing by citing Jan. 26 congressional testimony in which former top presidential antiterrorism adviser Richard Falkenrath said "toxic-by-inhalation industrial chemicals" are "acutely vulnerable and almost uniquely dangerous."
"The federal government has made no material reduction in the inherent vulnerability of hazardous chemicals targets inside the United States," Falkenrath said at the January hearing. He said the "poorly secured chemicals … in some cases are identical to the chemical weapons used in World War I" and "present a mass casualty terrorist potential rivaled only by improvised nuclear devices, certain acts of bioterrorism and the collapse of large, occupied buildings."
Sullivan returned often Wednesday to Falkenrath's testimony, challenging attorneys for CSX to contradict the analysis by providing evidence of federal protections that could render the city ban invalid. CSX and federal government attorneys described in general terms a confidential security plan developed cooperatively by railroads and the United States, but Sullivan repeatedly proclaimed himself unsatisfied by what he called a "secret" plan that no one in the courtroom appeared to have seen.
"I'm astounded that I'm not getting an answer to what this plan does to address that very dramatic hypothetical situation" of an attack on a hazardous materials tanker in central Washington, Sullivan said. Lawyers for the United States, which is supporting CSX's request to have the ban overturned, said the plan could be made available to Sullivan but not necessarily to lawyers for the city.
The rail cars at issue pass within blocks of the U.S. Capitol, the National Mall and other key federal sites, and a rupture could result in a toxic cloud that a U.S. Naval Research Laboratory scientist has estimated could claim thousands of lives within minutes. Press reports indicated early this month that a confidential Homeland Security Department report mistakenly posted for a brief time on a Hawaii state Web site makes reference to a chlorine tank explosion as a potential terrorist attack scenario.
Attorneys for CSX focused Wednesday on the possibility that the Washington law could trigger a series of similar laws across the country, rendering train shipment of hazardous materials all but impossible. In their initial complaint to the court, they wrote that the Washington measure "invites other local jurisdictions to enact copycat legislation which could, by crazy-quilt coverage, bring to a halt the interstate shipment of critically important materials throughout the United States of America."
Asked Wednesday by Sullivan why CSX "hasn't … just made a policy decision that D.C. is uniquely situated and that no hazardous materials are going to be transported through the city," attorney Irvin Nathan, representing the rail company, replied, "This is not a unique situation. Every major city believes that its citizens are important, and they are."
"It cannot be up to every city council across the country to make its determination as to whether the federal government is doing enough, and especially enough for it," Nathan said. Similar laws "have been proposed" in Pittsburgh, Philadelphia and Baltimore, he said, "and their eyes are on this court."
D.C. Attorney General's Office lawyer Robert Utiger retorted that future ban attempts in other cities should stand or fall on their own merits. He suggested that rails in some cities might not pass through densely populated areas as they do in Washington, making similar legislation inappropriate in such locales.
Baltimore City Council member Kenneth Harris, who was chief sponsor of a ban bill introduced March 14, said this week in an interview that he was waiting to see what fate awaited the Washington bill in Sullivan's courtroom before deciding how to proceed in his city.
Contacted before Wednesday's District Court hearing, Harris said he expected to call council hearings on his bill for next month. He said at least 12 of the council's 15 members support the ban and that City Solicitor Ralph Tyler had given him no indication the mayor would oppose the measure.
"When you're talking about public safety … I've got to do what's best for the city of Baltimore," Harris said.