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Judge Upholds Hazmat Rail Ban

CSX Vows Appeal To Fight D.C. Law

By Carol D. Leonnig
Washington Post Staff Writer
Tuesday, April 19, 2005; Page B02

A federal judge yesterday refused to block a D.C. law banning the rail shipment of hazardous materials through the city, saying that the District is entitled to take steps to protect itself from a catastrophic accident because the federal government has failed to do so.

U.S. District Judge Emmet G. Sullivan also ruled that CSX Transportation Inc. and the federal government had not provided evidence that the railroad or rail security would suffer irreparable harm if the company were forced to reroute rail cars of hazardous chemicals around the District. CSX filed suit in February to overturn the D.C. ban, and the federal government joined on the railroad's behalf.


CSX freight cars are sorted at the rail yard in Cumberland, Md. District officials want to keep hazardous materials from traveling through the city. (Timothy Jacobsen -- AP)

The fate of the ban, which is scheduled to take effect tomorrow, rests with a federal appeals court. CSX officials said yesterday they will appeal Sullivan's ruling immediately. Although Sullivan refused to delay enforcement of the ban, CSX can seek such a delay from the higher court.

In his decision, Sullivan said that the railroad made "only vague predictions of increased costs and logistical burdens" that "pale in comparison to the potential devastation predicted to occur in the event of a terrorist attack on a railcar transporting hazmats in the Nation's Capital."

"Given these competing interests," Sullivan wrote, "the balance of equities clearly favors the District of Columbia and its residents."

CSX spokesman Robert Sullivan, who is not related to the judge, said that despite the ongoing appeal, the company will take steps to reroute cars to comply with the ban.

The railroad "continues to place great focus on rail security -- as it has since September 11, 2001," the CSX spokesman said in a prepared statement.

He said the company feared that the District's law "could establish a precedent that could lead to a patchwork of similar laws that could virtually shut down rail transportation of critical commodities in the United States."

Baltimore, Pittsburgh and Philadelphia officials are considering similar restrictions of rail traffic through their cities.

D.C. Mayor Anthony A. Williams (D) applauded the judge's decision yesterday. "I signed the legislation because it's absolutely essential that as Mayor I work to protect the people who live and work in this city," he said in a statement. "I will continue to fight for that principle."

The D.C. Council passed the emergency law in January, saying that it was necessary because the District was a top target for terrorist attack and that in a worst-case scenario, the puncture of a 90-ton tanker of chlorine could kill as many as 100,000 people in downtown Washington.

CSX officials sued to stop the ban the following month, arguing that the District law usurped the federal government's authority to regulate the railroads and violated the Constitution's protection of interstate commerce.

Sullivan said in his ruling that the federal government did not present a comprehensive rail security plan to him. The judge noted that former deputy Homeland Security adviser Richard Falkenrath warned Congress in January that "since 9/11 we have essentially done nothing" to make the storage and transport of toxic chemicals more secure.

"CSXT argues that it has been 'more than three years after the attacks of Sept. 11, 2001' and there is no reason to believe there is an imminent emergency," the judge wrote. "The Court sincerely hopes plaintiff is right, but it is unwilling to take that gamble."

A spokesman for the Justice Department, which represented the departments of Homeland Security and Transportation in their opposition to the ban, said the administration was reviewing the opinion and had no comment.

The judge had proposed this month to broker a settlement between the parties, on the condition that the District postpone the ban, CSX halt hazardous shipments in the city temporarily and the federal government provide sensitive rail security information to city officials. CSX and federal officials refused.

"Unfortunately, instead of working together, the parties in this case are mired in litigation," the judge wrote, wasting time and money that "could have been spent making this city safe."


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