Judges Halt D.C. Law Banning Toxic Cargo

By Carol D. Leonnig and Yolanda Woodlee
Washington Post Staff Writers
Wednesday, May 4, 2005

The D.C. government was stopped yesterday from enforcing a new law prohibiting rail shipments of hazardous cargo by a federal appeals court ruling that questioned the legality of the ban.

The ruling by the U.S. Court of Appeals was a victory for CSX Transportation Inc., which sought an emergency order to stop the law from taking effect until the broader legal issues are explored. The judges said CSX has a "very high likelihood" of proving that the D.C. ban illegally covers areas governed by federal law.

The District law, which was to take effect April 20, was the first of its kind in the country and prompted other communities to examine more closely the possibility that criminals or terrorist groups could blow up one of many rail cars loaded with poisonous gas. California and the cities of Baltimore, Pittsburgh and Philadelphia had been weighing similar bans for security reasons. CSX argued that such bans would cripple national rail transportation.

The three-judge appellate panel reversed a ruling issued last month by U.S. District Judge Emmet G. Sullivan, who said the city's obligation to protect people from a railroad catastrophe outweighed any harm that CSX would suffer while the lawsuit was pending. In his ruling, Sullivan said the federal government had not shown him a comprehensive rail security plan.

The judges rejected the argument by Mayor Anthony A. Williams (D) and D.C. Council members that the District ban aimed to address a uniquely local threat, in that the city was a likely target of terrorist attacks. The panel said that the federal government has the lead role in regulating the rails and that a community can intervene only when a subject cannot be addressed by national standards or rules. The panel said the city's primary complaint was not that the federal government had failed to address rail security but that it had not done so adequately.

"Of course, the court does not minimize the calamitous consequences of a terrorist attack on a rail car transporting Banned Materials through the District," the panel concluded. "The effect of the D.C. Act, however, is simply to shift this risk, or at least, some of this risk, to other jurisdictions."

The ruling was issued by Judges Karen LeCraft Henderson, A. Raymond Randolph and John G. Roberts, who heard arguments on the issue at a hearing last week.

The mayor was reviewing the decision late yesterday with his lawyers, his spokesman said, and considering whether to ask the full appeals court to hear the matter. The District could choose not to appeal now and hope to overcome the railroad's lawsuit challenging the ban with a ruling in the trial court. During that time, however, the ban could not go into effect.

"He's extremely disappointed," said Vincent Morris, a spokesman for Williams. "The mayor had really hoped this law would become precedent for other communities."

Council member Kathy Patterson (D-Ward 3), who introduced the ban legislation, said she also was disappointed but added, "It's not over."

In a prepared statement, CSX Transportation welcomed the decision, saying "the District of Columbia legislation conflicts with federal law."

The Justice Department and U.S. Department of Transportation had sided with CSX in the case. The Sierra Club joined the District in arguing for the ban.

James Wrathall, a lawyer who argued on behalf of the Sierra Club, said the appeals court failed to address the important role that Congress intended for states and the District to play in monitoring federal rail security efforts. The danger for the city remains unaddressed, he said.

The ruling came the same day officials announced that the Department of Homeland Security has awarded a $1 million grant to the District that will be used to study rail security risks and the possibility of rerouting a rail line that runs seven miles between Alexandria and Hyattsville.

The D.C. Department of Transportation will work with the National Capital Planning Commission to conduct the study.

With the court's decision, the money for the project is "right on time," said Dan Tangherlini, the city's transportation director.

"Maybe the court at this juncture has ruled that CSX has the right to keep rolling this stuff through the city, but that doesn't mean that we can't continue to plan to make the city safer," Tangherlini said.

Funding for the project -- Securing Freight Rail Transportation in the National Capital Region -- is through the Homeland Security Department's 2005 Urban Areas Security Initiative.

Staff writer Spencer S. Hsu contributed to this report.


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