Local Regulation of Railroads: Guidance for Municipal Attorneys on - - PowerPoint PPT Presentation

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Local Regulation of Railroads: Guidance for Municipal Attorneys on - - PowerPoint PPT Presentation

Feb 04, 2023 109 likes •615 views

Presenting a live 90-minute webinar with interactive Q&A Local Regulation of Railroads: Guidance for Municipal Attorneys on Navigating the Complexities of Federal Preemption Strategies for Exercising Local Control to Address Nuisance,

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Presenting a live 90-minute webinar with interactive Q&A

Local Regulation of Railroads: Guidance for Municipal Attorneys on Navigating the Complexities of Federal Preemption

Strategies for Exercising Local Control to Address Nuisance, Liability and Economic Issues

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific TUESDAY, MARCH 8, 2016

The audio portion of the conference may be accessed via the telephone or by using your computer's

  • speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

Michael N. Conneran, Partner , Hanson Bridgett, San Francisco Charles Spitulnik, Partner , Kaplan Kirsch Rockwell, Washington, D.C.

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FOR LIVE EVENT ONLY

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SLIDE 3

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FOR LIVE EVENT ONLY

In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you email that you will receive immediately following the program. For additional information about continuing education, call us at 1-800-926-7926

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Local Regulation of Railroads: Guidance for Municipal Attorneys on Navigating the Complexities of Federal Preemption

Strafford Live Webinar Strafford Live Webinar

March 8, 2016

Michael Conneran, Partner Charles Spitulnik, Partner

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THE BASICS

  • Surface Transportation Board
  • Federal Railroad Administration
  • Labor Issues
  • The Courts - FELA

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Interstate Commerce Act of 1887

Imposed regulation of railroads:

  • Prohibited discrimination among shippers
  • Required publication of rates

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Deregulation – 1976-1995

Combatting “the disappearing railroad blues,” Congress enacted new laws aimed at making railroads solvent:

  • 4R Act (1976) – Fewer controls on rates
  • 4R Act (1976) – Fewer controls on rates
  • Staggers Rail Act of 1980– More deregulation,

allows railroads to share tracks

  • Interstate Commerce Commission Termination

Act (ICCTA) of 1995

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ICCTA of 1995

  • Abolished Interstate Commerce Commission

(ICC)

  • Established Surface Transportation Board (STB)

under the U.S. Department of Transportation under the U.S. Department of Transportation

  • Now independent based on recent legislative

changes

  • More limited control of rail operations by federal

agency

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STB

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The STB

  • Jurisdiction: Interstate Commerce
  • Rail (all), Water (some), Motor Carrier (some)
  • … “exclusive and plenary”
  • … “exclusive and plenary”
  • Commerce – rates; sales, leases and use

agreements; abandonments

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Other Agencies

  • Federal Railroad Administration (FRA) – Safety

Agency that regulates tracks, vehicles, speeds, and conducts safety inspections

  • State Public Utilities Commission (PUC)
  • State Public Utilities Commission (PUC)

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Basics for Federal Jurisdiction

  • Commerce Clause – Art. I, §8, Cl. 3
  • Supremacy Clause – Art. VI, Cl. 2

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  • PREEMPTION –
  • 49 U.S.C. 10502
  • 49 U.S.C. 11321

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Federal Pre-Emption

  • Remember the key words: “exclusive and

plenary”

  • Chicago and North Western Transportation

Company v. Kalo Brick and Tile Co. (1991) 450 U.S. 311:

“The ICA is among the most pervasive and comprehensive of federal regulatory schemes . . . . Since the turn of the century, we have frequently invalidated attempts by the States to impose on common carriers obligations that are plainly inconsistent with the plenary authority of the [ICC] . . .”

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Federal Pre-Emption

  • Chicago and North Western Transportation

Company v. Kalo Brick and Tile Co. (1991) 450 U.S. 311:

“[There] can be no divided authority over interstate commerce, and . . . the acts of Congress on that commerce, and . . . the acts of Congress on that subject are supreme and exclusive. [Citation.] Consequently, state efforts to regulate commerce must fall when they conflict with or interfere with federal authority over the same activity.” (Id. at 318-9.)

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  • IT’S ALL ABOUT SAFETY
  • 49 U.S.C. §20106:
  • National Uniformity of Regulation
  • National Uniformity of Regulation
  • Preemption of State Law

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  • 49 CFR Part 209, Appendix A
  • Joint Use of Rail Lines
  • “Connection” of “electric interurban rail

system” to interstate rail system

  • system” to interstate rail system

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What is an Interstate Carrier?

  • Active
  • Discontinued
  • Abandoned (not the same as easement

abandonment)

  • Rails to Trails (“Railbanking”)– Grantwood
  • Rails to Trails (“Railbanking”)– Grantwood

Village v. Missouri Pacific Railroad Company

  • Railroads that look wholly Intrastate
  • Tourist railroads, plant railroads not included (not

point-to-point)

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Railway Labor: Also a World Unto Itself

  • Railway Labor Act, National Mediation Board
  • Railroad Retirement/Railroad Unemployment

Insurance

  • LABOR PROTECTION
  • LABOR PROTECTION
  • STB
  • Collective Bargaining
  • Transit Industry
  • FELA

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City of Auburn v Surface Transportation Board, 154 F.3d 1025 (9th Cir. 1998)

Auburn: Cities file legal challenges to the re-opening of Stampede Pass line

  • 229 miles through the Cascades
  • Auburn at Western terminus – near Seattle N/S line

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City of Auburn v Surface Transportation Board, 154 F.3d 1025 (9th Cir. 1998)

BNSF sought STB approval to reacquire line it had sold to short line operator and segment it used

  • nly for local traffic
  • STB prepared Environmental Assessment (EA)

under National Environmental Policy Act (NEPA)

  • STB prepared Environmental Assessment (EA)

under National Environmental Policy Act (NEPA)

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City of Auburn v Surface Transportation Board, 154 F.3d 1025 (9th Cir. 1998)

City challenged STB decision that found that: i. Local environment permitting laws were preempted by ICCTA ii. STB’s use of Environmental Assessment ii. STB’s use of Environmental Assessment (i.e. finding that no Environmental Impact Statement (EIS) needed to be prepared)

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City of Auburn v Surface Transportation Board, 154 F.3d 1025 (9th Cir. 1998)

City of Auburn contentions on appeal to 9th Circuit:

  • City claims no express preemption of local

regulation: – Says Congress meant to preempt economic – Says Congress meant to preempt economic regulation, not “essential local police power required to protect the health or safety of citizens.”

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City of Auburn v Surface Transportation Board, 154 F.3d 1025 (9th Cir. 1998)

Court rejects City’s position--opinion notes long history of judicial recognition that rail operations need to be regulated at the federal, not local, level

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City of Auburn v Surface Transportation Board, 154 F.3d 1025 (9th Cir. 1998)

Auburn court cited Chicago and North Western Transportation Company v. Kalo Brick and Tile Company:

  • Interstate Commerce Act (ICA) is “among the

most persuasive and comprehensive federal

  • Interstate Commerce Act (ICA) is “among the

most persuasive and comprehensive federal regulatory schemes” (450 U.S. 311,318)

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City of Auburn v Surface Transportation Board, 154 F.3d 1025 (9th Cir. 1998)

Does legislative history of ICCTA help city? No!

  • 1. 49 U.S.C. §10501(b)(2): STB will have

exclusive jurisdiction over “the construction, acquisition, operation, abandonment, or acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities . . . .”

  • 2. Remedies are exclusive and preempt local law

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City of Auburn v Surface Transportation Board, 154 F.3d 1025 (9th Cir. 1998)

Auburn court noted that STB also has exclusive authority over rail line mergers and acquisitions and stated:

  • “[A] rail carrier participating in that approved or

exempted transaction is exempt from . . . all

  • “[A] rail carrier participating in that approved or

exempted transaction is exempt from . . . all

  • ther law, including state and municipal law…”

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City of Auburn v Surface Transportation Board, 154 F.3d 1025 (9th Cir. 1998)

Also rejected City’s NEPA challenge, finding the Environmental Assessment was adequate and the preparation of an Environmental Impact Statement was not required.

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Applying Auburn (and ICCTA) to specific issues:

  • Construction and Operation
  • Environmental Review
  • Nuisances
  • Condemnation
  • Condemnation
  • Franchises
  • Crossings

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Construction and Operation

Courts find state law controls are preempted:

  • Boston and Maine and Town of Ayer (Joint Petition for

Declaratory Order to STB) (Auto unloading facility)

  • Amer. Assn. of RR v. South Coast AQMD (diesel idling)

Some exceptions: Some exceptions:

  • Enforcement of public health and safety regulations where it

does not interfere with rail operations (Stampede Pass, Riverdale)

  • Voluntary Agreements (Township of Woodbridge)
  • Enforcement of Clean Water Act (Humboldt Baykeeper)

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Environmental Review

Courts find state law requiring reviews are preempted:

  • City of Encinitas (construction of side track for commute rail)

(North San Diego County Transit Development Board – Petition for Declaratory Order to STB)

  • Friends of the Eel River v. North Coast Rail Authority (Cal.

Supreme Court Case No S222472).

  • Friends of the Eel River v. North Coast Rail Authority (Cal.

Supreme Court Case No S222472).

  • City of Atherton v. California High Speed Rail Authority ((2014)

228 Cal.App.4th) (Challenge to CA High Speed Rail Project)

  • Green Mountain Railroad Corp. v State of Vermont (D.C.

Vermont 2003) 1003 U.S. Dist. LEXIS 23774

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Nuisances

  • Gluckenberg v. Wisc. Central Ltd.
  • Friberg
  • Village of Ridgefield Park

Courts, STB reject local attempts to regulate noise, etc. from rail Courts, STB reject local attempts to regulate noise, etc. from rail

  • pertions
  • Recent STB Decision:

Norfolk Southern Railway received confirmation that Delaware statute restricting locomotive idling is preempted

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Condemnation

State court condemnation actions barred:

  • Commonwealth v. Bartlett (1st Cir. 1967) 384 F.2d 819
  • Wisconsin Central Ltd. V. City of Marshfield (W.D. Wisc. 2000)

160 F. Supp. 2d 1009

  • In re Metropolitan Transportation Authority (2006) 823
  • In re Metropolitan Transportation Authority (2006) 823

N.Y.S.2d 88 Options:

  • Condemnation of non-rail properties permitted
  • Potential to have track removed from federal jurisdiction

by means of “adverse abandonment”

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Franchises

  • Union Pacific Railroad Company - Petition for Declaratory

Order, STB Finance Docket No. 34090 (Decided: November 7, 2001): “[E]ven assuming that the City’s interpretation of the Franchise Agreement is correct, its enforcement of the Franchise Agreement is no less an attempt to regulate Franchise Agreement is no less an attempt to regulate the abandonment of an interstate line of railroad than if the City promulgated laws for the same purpose.”

  • New Orleans Terminal, 366 F.2d at 163-64,
  • Des Moines v. Chicago & N.W. R. Co., 264 F.2d 454, 457-60

(8th Cir. 1959),

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Crossings

  • People v. Burlington Northern Santa Fe Railroad

(2012) 209 Cal.App.4th

State rule regulating blockage of grade crossings found to be preempted

  • Not a preemption issue exclusively but a serious
  • Not a preemption issue exclusively but a serious

concern that merits some discussion

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Stop that train?

  • Not gonna happen
  • At 55 mph, a train can take one mile to stop
  • Safety focus must be on controlling cars and

trucks

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Crossing Signals— Not Always Enough!

  • 50% of collisions occur at

signalized intersections signalized intersections

– Source: Operation Lifesaver

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Sound the horn!

  • Locomotive engineers rely on horns for safety
  • Horns are noisy but the best safety device

available available

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Federal Law Controls Local Attempts to Limit Noisy Horns

  • Federal law is supreme regarding regulation of

interstate commerce

  • Federal law is plenary with regard to railroad
  • perations
  • perations
  • “What part of ‘plenary’ don’t you understand?”

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Congress Acts: PL 103-440 49 USC §20153

  • 1994 statute requires DOT to issue regulations

requiring that train horns be sounded at public crossings

  • Allows FRA to grant exemptions via rulemaking
  • Allows FRA to grant exemptions via rulemaking

process

  • Regulations will pre-empt non-compliant local

bans

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Who can establish quiet zones?

  • “Public Authorities” = agencies “responsible for

traffic control or law enforcement” (i.e. cities, counties etc.)

  • Not railroads, nor the state PUC
  • Not railroads, nor the state PUC

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What can be done?

  • Localities can now declare quiet zones under

the conditions specified in the FRA rule

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Alternate Safety Measures

  • Require prior FRA approval
  • Allows use of measures that don’t qualify as SSM’s
  • OK to use “corridor approach” to average risks within

quiet zone

  • Education/enforcement program (including photo
  • Education/enforcement program (including photo

enforcement)

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Issues for Cities and Counties

  • Who pays for intersection improvements?

– Federal rule is silent on this point – If you want a quiet zone, must you pay for it? (Answer: probably!)

  • Potential sources of funding:

– Assessment Districts – Assessment Districts – Developer mitigations – Grants – Bond Proceeds – Sales Tax

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Railroad Concerns

  • Railroads focused of freight movement
  • Railroads have other capital priorities for their

$$$

  • Liability issues are of concern
  • Liability issues are of concern

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Addressing Liability

  • Text of rule is silent on liability
  • Federal law preempts certain state law actions,

such as: – Actions based on creation of quiet zones – Actions for failure to sound horn – Actions for failure to sound horn

  • FRA declined to require localities to indemnify

RR’s

  • RR’s may demand indemnity in exchange for

making improvements (no prohibition in rule)

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SLIDE 48

More information:

mconneran@hansonbridgett.com; (415) 995-5042 cspitulnik@kaplankirsch.com; (202) 955-5600

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