Railroading State Environmental Law: The Surface Transportation Board Preempts All

By Benjamin Albertson

The Surface Transportation Board (“STB”) has exclusive authority over railroads in the United States and has since the Interstate Commerce Commission Termination Act of 1995 (“ICCTA”). With this authority, it has consistently railroaded almost any state law that affects the construction and operation of railroads, even if the effect is purely incidental to the law’s general purpose. The ICCTA explicitly preempts any conflicting local, state, or federal law. The STB has consistently interpreted this preemption to include any law affecting the operation of railroads in any way, including local permits. The preempted laws of specific concern are state environmental laws, which railroads have been allowed to ignore with impunity.

Now, the Ninth Circuit has provided a framework under which state environmental laws can have the “force and effect of federal law” and are not preempted by ICCTA. This framework allows state environmental laws passed pursuant to a federal environmental law, like the Clean Water Act (“CWA”) or Clean Air Act (“CAA”), to have the force and effect of federal law if the Environmental Protection Agency (“EPA”) approves the state implementation plans. This means such laws will not be preempted by ICCTA. This framework is not limited to the CWA and CAA, but their statutory construction is a roadmap for the Ninth Circuit’s method. The Ninth Circuit later applied this framework to a case in Washington, where a federal law allowed Washington and Oregon to work together to maintain a scenic area. The Court found the relevant federal law (The Columbia River Gorge National Scenic Area Act), unlike the CAA or CWA, failed to contain a provision that could transform a local law into a law with the force and effect of federal law.

Multiple Circuits have also held that any form of permitting requirements are per se preempted, even if for environmental reasons (City of Ozark, AR v. Union Pacific Railroad Co., Oregon Coast Scenic Railroad, LLC v. State of Oregon Department of State Lands, Green Mountain Railroad Corp. v. Vermont). Unfortunately, this severely limits state environmental regulations and their ability to address environmental concerns from railroads. Trains produce noise, vibration, and air pollution. Pollution which disproportionately affects poor and marginalized communities. As shown above, however, state attempts to regulate have often left the state wanting. Also, while it is good the Ninth Circuit adopted the “force and effect” framework, it has already shown what happens when federal law fails to give states the force and effect they need. This leaves state and local governments in a sorry state when the federal government has and continues to fail to act. The STB has used this preemption against states that have attempted to apply their environmental laws against railroads. Still, not all is dark, and work is getting done.

States around the country have taken great steps to address climate change, California is a great example. But what if one state’s emissions reductions are offset by another’s additions? A national climate change law implementing a cap-and-trade system for carbon would go far in managing our emissions. Unfortunately, that is unlikely right now. The STB should stop railroading state attempts to fight climate change, and perhaps be a bit more open to assisting states in this fight.

That is not to say the STB does nothing. The Eighth and Ninth Circuits frameworks which could potentially enforce state and local environmental laws against railroads, come from STB decisions. Understandably, these frameworks give great deference to the railroad industry’s concerns because years of effort to deregulate the railroad industry led to the passage of the ICCTA. The deregulated rail industry is not interested in change either. While California works to address concerns due to the idling of older locomotives, the Association of American Railroadsprepares litigation to ensure such laws are preempted.

Still, the future is not all bleak; the EPA recently promulgated rules to give state and local governments some control of locomotive pollution, at least for older locomotives. This is a step in the right direction. Hopefully, as time goes by, the EPA and STB can recognize their role in the fight against railroad pollution and nuisance. The rail industry may be uninterested in cleaning itself up, but states, the EPA, and the STB have the power to work together to address these concerns and lead our railroads into a cleaner, greener future.