Heather Moyer
Millions of California residents can breathe a sigh of relief after a federal court dismissed a legal challenge to California law SB 861 which protects residents from the devastating hazards of crude by rail transport. The law requires railroads to prepare comprehensive oil spill response plans and to demonstrate financial solvency to ensure that the railroads -- and not the impacted communities -- pay for damages in the event of an accident, including a worst-case scenario oil spill. The California state legislature, reacting to the dramatic surge in crude oil trains transporting volatile crude through the state, passed the law to protect communities against the hazards of explosive crude that threaten property and state waters, including drinking water sources.
The legal challenge, brought by rail industry interests, claims that federal railroad safety laws preempt the state statute. The railroads highlighted that the costs of preparing spill plans and conducting training and drills to comply with the law would create overwhelming harm to them and therefore enforcement of the law must be halted. However, the railroads’ arguments failed to acknowledge the devastating impacts that oil spills wreak on communities and waterways when first responders and railroads are not adequately prepared to respond to emergencies, especially the crude rail disasters [e.g., 1, 2, 3, 4] that have become all too frequent in recent years.
Sierra Club and its allies filed an amicus brief in the case defending the state law and argued that the state has the authority, and even the duty, to demand that railroads have plans in place to respond to disasters and protect waterways from oil spills. Specifically, SB 861 is part of a cooperative federal-state legislative scheme of preparing for and cleaning up oil spills governed by the Oil Pollution Act of 1990 and the Clean Water Act. These statutes expressly preserve state authority to impose additional requirements and liability beyond what is mandated under federal law. This preservation of state police powers recognizes the deeply rooted role states play in protecting their residents and territories from oil spills. Indeed, the railroads’ principal argument is a draconian proposition, as industry argues that the Federal Railroad Safety Act swallows up all other federal and state authority whenever applied to railroads. The court dismissed the railroads’ challenge as premature since SB 861 has not yet been implemented. The decision allows the state to implement regulations requiring increased accountability from railroads.
The Explosion of Crude by Rail Traffic and its Consequences
The devastating impacts of crude rail disasters have become all too real as more crude spilled from trains in 2013 than in the last four decades combined, totaling more than 1 million gallons. 2014 was marked by the greatest number of crude rail accidents of any year on record. Recent fiery derailments and spills including in Lac Megantic, Quebec, Mount Carbon, West Virginia, and Lynchburg, Virginia resulted in 50 deaths, thousands of evacuations, leveled downtowns, and contaminated drinking water sources. Unfortunately, the federal government has done very little to improve crude by rail safety, recently finalizing new crude rail safety regulations that leave old, deficient tank cars on the tracks for 10 more years and significantly reducing information access to first responders and communities, which need to understand crude characteristics and rail routes used to transport this hazardous commodity. Further, federal regulation fails to address all together the financial solvency of railroads or require even a minimum level of insurance coverage in the event of a crude rail accident, placing communities and states on the hook if railroads are unable to cover the cost of damages.
As the safety record of this hazardous industry continues to plummet, plans to expand crude by rail transport in California are well underway. Currently, crude rail terminal projects that would ship millions of gallons of volatile crude each day through the state are proposed or already operating at numerous California refineries and export facilities including in Richmond, Pittsburg, Stockton, San Luis Obispo, Bakersfield, and Los Angeles. Rail lines servicing the projects span the entire state, including through Sacramento, Davis, Berkeley, Oakland, San Jose, and the greater Los Angeles area, placing millions of California residents at risk of the devastating impacts of a serious crude rail accident.
SB 861 promotes preparedness to respond to incidents that occur when trains derail, spill oil, and create local environmental disasters that demand emergency response and clean up. This court ruling is a victory for Californians threatened by the massive expansion of crude by rail infrastructure and shipments and the resulting risks of derailments, spills, and explosions. Other states should follow California’s lead by passing similar statutes that provide the more than 25 million Americans that live in crude-by-rail blast zones with the protections they deserve.