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June 03, 2015

Both Sides of the Track Challenge New Rail Car Rules

Lawsuits have been filed from both industry and environmental groups over the U.S. Department of Transportation (“USDOT”) Pipeline and Hazardous Materials Safety Administration’s (“PHMSA’s”) new Final Rule for high hazard flammable trains and tank cars, published on May 8, 2015.

On the industry side, on May 11, 2015, separate lawsuits were filed in the U.S. Court of Appeals for the District of Columbia by the American Petroleum Institute (“API”) and the American Short Line and Regional Railroad Association. API has asked the court to set aside and remand portions of the new rule that set deadlines for retrofitting rail cars to meet the new design standards and that provide a requirement, and set deadlines, for the installation of electronically controlled pneumatic (“ECP”) braking systems. (Index No. 15-1131). The American Short Line and Regional Railroad Association has challenged the entire rule, asserting, the new rule is in excess of the USDOT’s authority, arbitrary and capricious, an abuse of discretion and otherwise contrary to law. (Index 15-1132). The D.C. Court of Appeals consolidated the two actions on May 18, 2015. A statement of the issues from each industry group is due on June 17, 2015.

Environmental groups have also filed separate suits. On May 14, 2015, Earthjustice and Sierra Club on behalf of Forestethics, the Washington Environmental Council, Waterkeeper Alliance, Friends of the Gorge, the Spokane Riverkeeper, and the Center for Biological Diversity filed a petition challenging the rules in the 9th Circuit Court of Appeals. (Index No. 15-71461). Then, on May 15, 2015, Riverkeeper filed its lawsuit in the 2nd Circuit Court of Appeals. (Index No. 15-1609). Both suits argue that the phase-out period for non-compliant rail cars is too long, complain that the standards are too weak, and assert that the 40 mph speed limit should be expanded to other densely populated areas. The enviro suits also allege the agency violated notice and comment requirements because it abandoned a prior emergency order regarding local notification requirements.

H&B will be following these cases closely and will post further updates as they happen.

PHMSA’s Final Rule, “Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains,” is available here.

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