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The Federal Rail Safety Act (FRSA) was enacted by Congress in the 1970’s to improve nationwide railroad safety, and to make sure uniform laws applied to essential railroad safety for trains travelling through multiple states.
The idea was that individual states could not enact a hodge podge of different safety rules on basic transport of freight or as to how the railroad track was to be constructed and maintained.

But…one key point was that the FRSA did not wipe out any state or local law that did not direclty affect interstate railroad track safety or did not affect essentail railroad transport or speed. It also did not wipe out any state law on suing a railroad if it had an unsafe railroad crossing. But, the FRSA has become the railroads’ super weapon to actually erode railroad safety.

Over time the railroads have tried to increasingly argue that the very existence of this FRSA wipes out virtually any and all state and local laws, even if the state or local law does not truly affect interstate rail safety and even if FRSA regulations do not really deal with the point of the state or local law in question. The railroads’ legal arguments are generally called “implied federal preemption,” or basically that federal law trumps any state or local law.

The railroads’ blatant twisting of the FRSA has started to go way too far in the last couple years, and I predict that the pendulum is going to swing back and smack the railroads very soon.

This year, a railroad in a North Dakota federal case (Minot, ND train derailment) convinced a federal judge that the mere existence of this FRSA completely wiped out any victim’s right to sue a railroad at all over a toxic derailment spill. Sure, hundreds of victims in the town suffered injuries from toxic fumes. But, this federal judge wistfully wrote that his hands were tied because of the preemption of the FRSA. Sorry folks, no recovery for your injuries!

The railroads now have been expanding their argument in states across the nation where they are sued for crossing wrecks under state laws. The railroads are collectively “removing” such cases to federal courts they deem better for them, on the theory that the FRSA is a federal act, and it trumps state laws entirely. They are trying to get the cases to federal court first, then ask the federal judges to throw the entire cases out next!

Another example: railroads are trying to avoid compliance with state and local highway code requirements, like on overhead bridges. In Covington, Kentucky, CSX railroad believes it is above the law, per the Mayor’s opinion. CSX refuses to repair a deteriorating and dangerous railroad bridge. It paid a $5,000.00 fine but plans to appeal the fine and argue that Covington law means nothing to CSX.

“They seem to think they’re above (local) law,” Covington Mayor Butch Callery said “They’re just going to move along until at some point in time there’s a really serious accident on the railroad tracks. Then there are going to be all sorts of laws passed on a federal level. We don’t want that to happen.”

CSX spokesman Gary Sease said that the railroad isn’t addressing most of the violations because it considers them aesthetic. He said CSX has paid the $5,000 fine and claims the CSX brudge meets “all company and federal safety standards.”

“We do intend to correct some problems with some downspouts on the bridge, but we do not spend our capital dollars on aesthetics,” Sease said. “I believe the city is asking us to paint the bridge to make it more attractive. “We will certainly address anything that’s a safety problem.”

Mayor Callery said he is frustrated that CSX continues to ignore repeated code violations. Lawyers for the railroad have maintained that the Federal Railroad Safety Act pre-empts any local laws.

Rick Ludlum, president of the Austinburg (Kentucky) Neighborhood Association, predicted it will take a class action suit involving cities throughout the U.S. to get the railroad’s attention.

“You wouldn’t let a house go to pot where the gutters are falling off and the roof’s caving in,” Callery said. “CSX is no different than any other property owner.”

Just another example of the railroads using the FRSA to shirk, not improve, railroad safety.

Given that the Federal Railroad Administration, the rail agency with most enforcement power, is the most weak and feeble federal agency on safety enforcement nationwide, the railroad strategy is obvious. A report of the DOT’s inspector General’s office recently found that the FRA fined the nation’s railroads about $200,000 cumulatively for AN ENTIRE CALENDAR YEAR. Wow! What a tough watchdog agency the FRA is.

Pretty soon, even conservative federal legislators will recognize that the railroad preemption card has eroded, not promoted, railroad safety and the pendulum will swing back.

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