CSX TRANSPORTATION, stung by its defeat in federal district court on Monday, rushed to the U.S. Court of Appeals on Tuesday and won a ruling blocking the D.C. law banning the transportation of highly toxic chemicals near the Capitol from taking effect yesterday. U.S. District Judge Emmet G. Sullivan, who had upheld the city's 90-day ban on CSX's freight cars bearing hazardous toxic materials, concluded that the federal government had failed to provide a consistent and comprehensive policy addressing the risk of terrorism on railcars transporting hazardous materials in the nation's capital, which faces disproportionate terrorist risks. In the absence of federal action to address the threat, Judge Sullivan ruled that the District had authority under its traditional police powers to prohibit certain hazardous materials from being transported through the city. However, CSX, claiming that only the federal government can regulate rail transport, sought and won a reversal from a three-judge appeals court.
It didn't have to come to this. No one, least of all District leaders, disputes the federal government's unique responsibility for protecting the nation, including working with rail carriers to minimize security risks. But what are the consequences when the federal government fails to face up to that enormous responsibility, especially with respect to chemicals that are toxic by inhalation, such as chlorine gas transported on railcars? In his ruling, Judge Sullivan cited testimony by Richard Falkenrath, former deputy homeland security adviser, who warned Congress in January that "since 9/11 we have essentially done nothing" to reduce the inherent vulnerability of the nation's chemical sector.
The implications of doing nothing are enormous. As Judge Sullivan observed: "One study estimates that an attack on a single rail tank car of chlorine traveling through Washington, during a celebration or political event, could kill or seriously harm 100,000 people within an hour. The toxic plume resulting from such an attack could extend over 40 miles from the point of release, including a core area of about 4 miles by 14.5 miles, within which exposure could be deadly." Instead, however, of working with the city to minimize the catastrophic possibility, the feds and CSX are spending their time and energy in litigation defending CSX's balance sheet and U.S. government turf.
Monday's federal court decision considered the claims of CSX and the Justice Department that the District overstepped its bounds and also encouraged copycat legislation by other local jurisdictions that ultimately could bring interstate shipments of hazardous materials to a halt. Addressing each of the complaints, Judge Sullivan found that applicable federal laws gave states and cities a limited sphere of authority over rail safety and security, that the city's ban on CSX would not cause irreparable harm to the carrier, and that absent evidence that the federal government has come up with a "definitive and authoritative" plan to enhance the security of trains in the city, the District was within its rights to take action.
The appeals court ordered the District to file written responses to the CSX appeal by tomorrow. The final and deciding round, which we hope will sustain the district court's concern for the safety and security of the capital, may not be far off.