States' hands tied on regulating crude-carrying trains

Posted at 2:09 PM, Mar 13, 2015
and last updated 2015-03-13 14:10:29-04

The deadliest oil-carrying train derailment in history happened two years ago when a train passing through Lac-Megantic, Quebec, came off the tracks in the heart of the town, ultimately killing 47 people. Last month a 109-car train, passing through Fayette County, West Virginia and carrying oil from North Dakota, derailed and caught on fire. And just this month, two trains carrying crude came off the tracks in Illinois and Ontario. Both burned for days.

What’s perhaps equally disturbing though is that the towns and cities these trains travel through or near are often unaware of the dangerous cargo, and they couldn’t do much about it even if they were.

These incidents are part of a of a noticeable uptick in accidents involving trains carrying highly volatile crude oil and have many fearing that the trains are ill-maintained and ill-regulated.

Most states have minimal knowledge about the trains’ cargo because of binding confidentiality agreements that allow railroad companies to keep routes confidential because of security risks.

“It’s disempowering to people who feel like they should have a say,” said Lorne Stockman, research director at Oil Change International. “When we are talking about tracks located close to hospitals and schools and universities and institutions, at least during working hours, they are filled with people and they have no idea when these trains are coming through or if they are in danger.”

Furthermore, the oil shipments, largely coming from the tar sands in Canada and North Dakota, are considered interstate commerce between railroad companies and the federal government.

This means that although the trains often pass through many states on their way to their final destinations, those states have little to no say about the contents on the trains—or much else.

It’s one of the few instances where states can do little to challenge federal law. If the federal government wants to push stricter gun laws, states can pass laws making gun registries illegal.

If the federal government says marijuana is a Schedule I drug and a felony, states can pass their own laws making the substance legal and taxable.

But if the federal government grants a company the right to use interstate railroads, states can’t do much more than watch them chug-a-chug through.

“[States] cannot regulate speed, the rail car design, the times of day of shipment, or the length of trains. The only thing they can do is hire an inspector and go out and aid the railroad inspectors looking at the tracks,” said independent rail safety consultant Fred Millar.

In fact, one of the few things states can do is pass taxes on the trains that travel through and use the money elsewhere. New York, California and Minnesota have passed laws doing just that. California lawmakers also introduced legislation to provide more money for oil spill response and to require more information from railroads about hazardous materials.

More and more trains are passing through the country each year, often going as far as North Dakota to Pennsylvania.

In 2008, railroads carried 9,500 carloads of crude oil, in 2013 that number increased 42 fold, with more than 400,000 carloads, according to data by the Association of American Railroads.

The reason? A huge surge in what’s called Bakken oil from North Dakota and Canada due to tar sand exploitation. Bakken is the most volatile type of oil, due to its low ignition temperature. Oil production rose in North Dakota from an average of 81,000 barrels per day in 2003 to more than one million barrels per day by mid-2014.

That means more oil on the rails, and more railway cars needed to transport it all. In 2013, more oil was spilled from railroad car crashes than in the entire period from 1975 to 2012.

And while the majority of oil is still transported by pipelines—like the highly debated Keystone XL, the construction of which President Obama recently vetoed—transport via rail is considered a more efficient method of transportation for large quantities of crude.

Although state hands are tied when it comes to regulating the locomotives, the federal government does have the ability to implement changes.

The Department of Transportation is responsible for regulating transport by rail but so far has been sluggish to update any rules. Last July it announced a proposal that would mandate enhanced tank cars that are less prone to rupture, new brake controls and speed restrictions.

The DoT proposal would also phase out the use of older DOT 111 train cars, which have been cited as cracking during crashes.

The agency recently delayed its final ruling until May. DOT cited the more than 3,000 public comments on the proposal and the need for coordination with their Canadian counterparts as reasons for the delay.

But critics of the DoT have suggested the agency’s foot dragging is a result of pressure from the railroad and oil lobbies, who would have to take on added expenses in the event of new regulations.

The postponement has left many unhappy, including members of Congress like Sen. Chuck Schumer, D-NY, who said in a statement “The people who live in these communities, who want to see tough, new safety standards, cannot wait on the grating gears of bureaucracy. These rules must now be approved and implemented in haste.”

For now, communities are left to wait and hope for new regulations, as well as clean up any more crashes that occur in the interim.

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