Legal Issues Concerning State and Local Authority to Restrict the Transportation of Hazardous Materials by Rail

CRS Report for Congress
Legal Issues Concerning State and Local
Authority to Restrict the Transportation of
Hazardous Materials by Rail
Todd B. Tatelman
Legislative Attorney
American Law Division
Summary
In the wake of train derailments and a chlorine gas leak in South Carolina, state
and local officials began to examine the scope of their regulatory authority over the
transportation of hazardous materials by rail. Specifically, local officials in the District
of Columbia authorized a temporary ban on the transportation of certain toxic
substances from trains that travel though the District of Columbia. Reviewing the
relevant statutes, including the Hazardous Materials Transportation Act and the Federal
Railroad Safety Act, it would appear that state and local governments are preempted
from enacting legislation that would prevent or hinder the transportation of hazardous
materials in interstate commerce. In addition, the Constitution’s dormant, or “negative”
Commerce Clause may also prevent a state or locality from imposing such a restriction
as it could arguably be seen as imposing an undue burden on interstate commerce. This
report will provide an overview of the relevant federal statutes with respect to the
transportation of hazardous materials by rail, and will discuss some of the legal issues
with respect to both federal preemption and the dormant commerce clause. In addition,
this report will discuss the decision by the D.C. Circuit Court of Appeals, which, in
reversing a district court’s opinion, held that the temporary ban was preempted by
federal law and issued a preliminary injunction against its enforcement. This report will
be updated as events warrant.
Background
On January 6, 2005, a train crash in South Carolina caused a release of chlorine gas
resulting in deaths, injuries, and forcing the evacuation of people from the surrounding
area.¹ This incident, combined with a similar incident last summer in Texas, has caused

¹ Walt Bogdanich & Christopher Drew, Deadly Leak Underscores Concerns About Rail Safety,
New York Times, Jan. 9, 2005, available at [http://www.nytimes.com
(continued...)
Congressional Research Service ˜ The Library of Congress

state and local officials to examine their authority to restrict the transportation of
hazardous materials through their communities. In 2004, the District of Columbia’s City
Council rejected a legislative proposal that would have prevented the transportation of
hazardous materials through the District;² however, on February 1, 2005, the Council
enacted a 90-day temporary ban on certain hazardous materials traveling through the city
by rail.³ News reports at the time also indicated that the Council was again considering
taking permanent legislative action in the hopes of reducing the threat to the area’s
residents and businesses.⁴
Federal Statutes Governing the Transportation of Hazardous
Materials
A review of the two relevant federal statutes with respect to the transportation of
hazardous materials indicates that proposals by state and/or local officials to regulate the
transportation of hazardous materials may be preempted by federal law. The Hazardous
Materials Transportation Authorization Act of 1994 (HMTA) provides the Secretary of
Transportation with general regulatory authority over both the designation of hazardous⁵
materials and their transportation in interstate commerce. The HMTA contains express
preemption provisions which state that, absent a waiver by the Department of
Transportation (DOT), “the requirements of a State, political subdivision of a state, or
Indian tribe are preempted if:
(1) complying with a requirement of the State, political subdivision, or tribe and a
requirement of this chapter, a regulation prescribed under this chapter, or a hazardous
materials transportation security regulation or directive issued by the Secretary of
Homeland Security is not possible; or
(2) the requirement of the State, political subdivision, or tribe, as applied or enforced,
is an obstacle to accomplishing and carrying out this chapter, a regulation prescribed
under this chapter, or a hazardous materials transportation security regulation or⁶
directive issued by the Secretary of Homeland Security.
Further, the HMTA preempts:
unless authorized by another law of the United States, a law, regulation, order, or
other requirement of a State, political subdivision of a State, or Indian tribe about any
of the following subjects, that is not substantively the same as a provision of this

¹ (...continued)
/2005/01/09/national/ 09rail.html ].
² See Eric W. Weiss, Ban on Toxic Cargo Sought Anew in D.C.: S.C. Wreck Raises Fears in
Capital, W^ASH.P^OST., Jan. 11, 2005 at B1.
³ See Eric W. Weiss & Spencer S. Hsu, Council Approves 90-Day Ban on Hazmat Shipments in
D.C., W^ASH.P^OST., Feb. 2, 2005 at B1
⁴ See id. at B8; see also Eric W. Weiss, Ban on Toxic Cargo Sought Anew in D.C.: S.C. Wreck
Raises Fears in Capital, W^ASH.P^OST., Jan. 11, 2005 at B4.
⁵ Hazardous Materials Transportation Authorization Act of 1994, P.L. 103-311, 108 Stat. 1673
(1994) (codified as amended at 49 U.S.C. §§ 5101-5127 (2004)).
⁶ 49 U.S.C. § 5125(a)(1)-(2) (2004).

chapter, a regulation prescribed under this chapter, or a hazardous materials
transportation security regulation or directive issued by the Secretary of Homeland⁷
Security, ....
These provisions establish what the DOT refers to as the “dual compliance,” “obstacle,”
and “covered subject” tests.⁸
Second, given that both the incidents and proposed legislation relate to rail
transportation, the preemption provisions in the Federal Railroad Safety Act (FRSA) also
appear to be relevant.⁹ The FRSA specifically requires that “laws, regulations, and orders
related to railroad safety and security shall be nationally uniform to the extent
practicable.”¹⁰ Pursuant to the FRSA, state and local officials are permitted to legislate
railroad safety and security until such time as the Secretary of Transportation or Secretary
of Homeland Security prescribe regulations covering the same subject matter. State and
local officials may also enforce a more stringent law and regulation when such law is: “(1)
necessary to eliminate or reduce an essential local safety or security hazard; (2) is not
incompatible with a law, regulation or order of the United States Government; and (3)
does not unreasonably burden interstate commerce.”¹¹
It would appear that any legislative or regulatory proposal to regulate the
transportation of hazardous materials such as enacted by the District of Columbia would
likely be considered a “routing” regulation. Routing regulations generally include

⁷ Id. at § 5125(a)-(b). The statute provides for the following “covered subjects:”
(A) the designation, description, and classification of hazardous material.(B) the
packing, re-packing, handling, labeling, marking, and placarding of hazardous
(C) the preparation, execution, and use of shipping documents related to hazardous
material and requirements related to the number, contents, and placement of those
documents.
(D) the written notification, recording, and reporting of the unintentional release in
transportation of hazardous material.
(E) the design, manufacturing, fabricating, marking, maintenance, reconditioning,
repairing, or testing of a packaging or a container represented, marked, certified, or
sold as qualified for use in transporting hazardous material.
Id.
⁸ See 69 Fed. Reg. 69677, 69678 (Nov. 30, 2004). These provisions appear to codify the Supreme
Court’s preemption doctrine, which has held that in situations where it is impossible to comply
with both a federal and a non-federal (i.e., state or local) requirement, the non-federal
requirements are preempted (dual compliance test). See Hines v. Davidowitz, 312 U.S. 52 (1941).
In addition, the Court’s preemption doctrine holds that when a non-federal requirement, as
applied or enforced, frustrates the purpose or serves as an obstacle to carrying out the full effect
of the federal law, it is preempted (obstacle or frustration of purpose test). See Florida Lime &
Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); see also Ray v. Atlantic Richfield, 435 U.S.

151 (1978).

⁹ Federal Railroad Safety Act, P.L. 91-458, 84 Stat. 971 (1970) (codified as amended at 49 U.S.C.
§§ 20101-20117 (2004)).
¹⁰ 49 U.S.C. § 20106 (2004).
¹¹ Id. at § 20126(1)-(3).

directions with respect to specific travel route(s) or portion of route(s).¹² Arguably,
regulations regarding “routing” do not in and of themselves make it impossible to comply
with federal regulations; and therefore, are not necessarily obstacles to carrying out the
requirements of the HMTA. In addition, routing is not included within any of the covered
subjects listed in the statute.¹³
While there do not appear to be any federal court decisions with respect to state or
local regulations attempting to route the transportation of hazardous materials via rail, the
DOT has issued several administrative “inconsistency rulings” and “preemption
decisions” regarding routing regulations, pursuant to HMTA, that affect the transportation
of radioactive materials via motor carriers. A review of these decisions indicates that the
DOT has consistently held that “the Department through promulgation of 49 C.F.R. §
397.101, has established a near total occupation of the ‘field of routing’ ...”¹⁴ This
occupation means that routing requirements other than “(1) those relating to Federal
requirements or (2) state designated alternate routes under 49 C.F.R. § 177.825 are very
likely to be inconsistent and thus preempted under 112(a) of the HMTA.”¹⁵ If anything,
because of the more readily available alternate routes for motor carriers, it can be argued
that the HMTA gives state and local officials more flexibility with respect to motor carrier
regulations;¹⁶ therefore, if the federal government has occupied the field of routing with
respect to motor carriers, it may be that the same result would be reached with respect to
rail transportation.
Moreover, such locally enacted legislation could arguably be characterized as not
merely a routing requirement, but in effect as a prohibition on a specific form of
hazardous material transportation, which would apparently be preempted. The DOT has
previously held, with respect to state and local attempts to prevent the transportation of
hazardous materials, that “[a] unilateral local ban is a negation, rather than an exercise,
of local responsibility, since it isolates the local jurisdiction from the risks associated with
the commercial life of the nation.”¹⁷
Turning to the FRSA, given the existence of federal regulations with respect to
hazardous materials transportation by rail,¹⁸ should the District or any other state or local
government attempt to regulate in this area, they would be required to show that the
restriction satisfies the statute’s specific requirements. As indicated above, the FRSA

¹² See 49 C.F.R. § 367.65 (2003) (defining routing designations in the context of motor carrier
regulations).
¹³ See supra note 7.
¹⁴ 52 Fed. Reg. 13000, 13003 (Apr. 20, 1987). 49 C.F.R. § 397.101 governs the driving and
parking rules for the transportation of hazardous materials by motor carrier. See 49 C.F.R. §

397.101 (2004).

¹⁵ Id.
¹⁶ See 49 U.S.C. § 5125(c) (2004) (establishing preemption rules with respect to highway routing
requirements, and providing for more state and local regulatory authority pursuant to the limits
established by 49 U.S.C. § 5112(b))
¹⁷ 49 Fed. Reg. 18457, 18458 (Apr. 29, 1982).
¹⁸ See e.g., 49 C.F.R. § 174 (2003).

permits states and localities enact more stringent regulations provided that the regulations
are necessary to eliminate or reduce an essential local safety or security hazard, are not
incompatible with federal law, and do not unreasonably burden interstate commerce.¹⁹
While arguably a regulation narrowly tailored to address a specific local safety or security
concern would satisfy the first prong of the test, a local restriction on the transportation
of hazardous materials by rail could be found by a court to be in conflict with the HMTA.
In addition, such a restriction could place an unreasonable burden on interstate commerce
by requiring rail carriers to take potentially longer and more costly routes to deliver their
cargo. Given these possibilities, it would appear that any state or local restriction on the
transportation of hazardous material by rail could be found to be preempted by the FSRA.
Dormant or “Negative”Commerce Clause
In addition to possible preemption issues, the Constitution’s Commerce Clause,
which has been interpreted to contain a dormant or “negative” component, may also
preclude state and local officials from imposing regulations preventing or hindering the
transportation of hazardous materials in interstate commerce.
In this case, it is likely that a state or local restriction on the transportation of
hazardous materials by rail would fall into the “undue burden” category of dormant
commerce clause cases, as safety and security, rather than economic protectionism,
appears to be the state or local government’s primary interest. When a state or locality
asserts a safety or security rationale, the Court has generally balanced the state’s interest
in safety and security with the regulation’s impact on interstate commerce. Here, the
interest in safety is likely to be very strong as a chemical spill in a densely populated area
such as Washington, D.C. could potentially have disastrous consequences. Couple that
with the post-9/11 terrorist threat and the fact that Washington, D.C. is the nation’s
capital, and there may be a case that the District’s legitimate interest in safety outweighs
the potential impact on interstate commerce. Nevertheless, Supreme Court precedent
appears to require the opposite result. In Kassel v. Consolidated Freightways Corp., the
Court invalidated an Iowa regulation that prohibited the use of 65-foot double tractor
trailers on its highways because the regulation substantially burdened interstate
commerce.²⁰ The rule established from the Court’s multiple opinions in Kassel, appears
to be that a state may not enact regulations that effectively shift the burden of interstate
commerce away from its citizens for the purpose of protecting their safety.²¹ In other
words, the problem with the Iowa regulations was that they appeared to protect Iowans
from the dangers of 65-foot tractor trailers by diverting them into other states. The result
was an effective shift of the burdens and costs of interstate commerce from Iowa onto its
neighboring states. Similarly, by diverting the rail cars carrying hazardous materials from
the District of Columbia to other regions, the District is arguably shifting the burden,
hazards, and costs of interstate commerce onto neighboring regions. Because a lower

¹⁹ 49 U.S.C. § 20106(1)-(3) (2004).
²⁰ See Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 671 (1981).
²¹ While the decision in Kassel was 6-3 in favor of striking down the Iowa statute, the case did
not have a majority opinion. Rather, it produced a plurality decision that included Justices
Powell, White, Blackmun, and Stevens. Justices Brennan and Marshall authored a separate
concurring opinion agreeing with the result, but offering a different rationale.

federal court would likely consider itself bound by the holding in Kassel, it would appear
that there would be a strong argument for striking down the local statute on dormant
commerce clause grounds.
The Court’s decision in Kassel, however, was handed down in 1981, long before
September 11, 2001, and its implications on both national and local security. In light of
these changed circumstances, it may be possible, given the more stringent regional safety
and security concerns, for a lower court to find Kassel distinguishable. Arguably,
because the District of Columbia, unlike Iowa, has to be concerned about the heightened
risks from terrorists and other threats to national security, a court could decide that while
the District’s restriction adversely impacts interstate commerce, that effect is substantially
outweighed by the security benefits to the District and the national capital region. Should
a lower federal court reach such a decision, it is unclear what, if anything, the Supreme
Court would decide should it hear the case.
Litigation Activity
On February 22, 2005, CSX Transportation (CSX), the major rail carrier directly
affected by the statute, sought, before the federal district court for the District of
Columbia, a preliminary injunction preventing enforcement of the D.C. Act. On April 18,
2005, the district court denied the preliminary injunction, determining that on the record
before it, CSX was not likely to succeed on the merits of its claims.²² CSX immediately
sought a reversal of the district court’s decision from the Court of Appeals for the District
of Columbia Circuit (D.C. Circuit).
Upon review, the D.C. Circuit determined that unless the District could demonstrate
that its Act fell under one of the conditions established by the FRSA for the enactment of
a more stringent regulation, the Act was preempted by federal law.²³ Analyzing the D.C.
Act in light of the FRSA conditions, the court first concluded that the D.C. Act likely
does not address an “essentially local safety or security hazard,” as none of the parties had
suggested that the national standards were inadequate to address the vulnerability of
hazardous materials passing through the District.²⁴ Second, the court concluded that
because the Act’s routing restriction does not permit the carriers to exercise the discretion
expressly conferred by the existing federal regulations, the Act was incompatible with the
existing federal scheme.²⁵ Finally, the court concluded that the Act unreasonably burdens
interstate commerce because, practically speaking, should multiple states enact similar
bans, they would in effect “wreak havoc with the national system of hazardous materials
shipment.”²⁶ Having decided the case in CSX’s favor on FRSA grounds, the court did not
address challenges to the D.C. Act under either the HMTA or the dormant Commerce
Clause.

²² See CSX Transp., Inc. v. Williams, 2005 WL 902130, *24-25 (D.D.C. Apr 18, 2005) (NO.
CIV.A. 05-338EGS).
²³ CSX Transp., Inc. v. Williams, 406 F.3d 667, 672 (D.C. Cir. May 3, 2005) .
²⁴ See id. at 672
²⁵ See id. at 673.
²⁶ Id. (internal citations omitted)