Enviros Threaten Legal Action If Buttigieg Doesn’t Act

The Norfolk Southern train derailment disaster (AP Photo/Gene J. Puskar) and Transportation Secretary Pete Buttigieg (AP Photo/John Minchillo)

By Rebecca Burns

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Six environmental groups will consider legal action if the Department of Transportation fails to act on a key rail safety rule, the groups wrote Thursday in a letter to Secretary Pete Buttigieg.

The rule in question would force railroads to begin upgrading freight trains’ Civil War-era braking systems to newer, electronically controlled brakes allowing for faster and safer stops. In 2017, after rail industry donors delivered more than $6 million to GOP campaigns, President Donald Trump’s administration repealed the 2015 rule requiring the newer brakes in some trains transporting hazardous materials, as The Lever reported last week.

In 2018, environmental groups, including Earthjustice and the Sierra Club, appealed the move by the Trump administration, citing a faulty cost-benefit analysis used to justify the repeal. An investigation earlier that year from the Associated Press revealed that the Trump administration omitted at least $117 million in estimated damages from train derailments when it determined that the costs of upgrading electronic braking systems would exceed the benefits.

The groups’ appeal is still pending. According to the letter, under federal administrative law, a regulatory agency has 90 days to respond to appeals. But neither the Trump nor the Biden administrations have responded to date, Kristen Boyles, a managing attorney at Earthjustice who authored the letter to Buttigieg, told The Lever.

“We frankly expected little response from the Department under the prior administration — after all, it had just eliminated the updated brake requirements — but the silence has continued well into the Biden administration,” reads the letter.

Facing pressure from lawmakers and the public in the wake of the fiery train derailment in East Palestine, Ohio, Buttigieg wrote on Twitter Tuesday that he is “constrained by law on some areas of rail regulation,” citing a law passed by Congress in 2015 that helped pave the way for the repeal of the brake requirement.

At the behest of rail lobbyists, that 2015 law included a provision requiring the Transportation Department to redo an earlier cost-benefit analysis on the implementation of electronic brakes. But there’s nothing stopping Buttigieg’s department from updating the faulty analysis as a first step to reinstating the braking requirement, rail and administrative law experts told The Lever this week.

That’s what the environmental groups are asking Buttigieg to do now. After years of sounding the alarm about the dangers of so-called “bomb trains” transporting liquefied natural gas and crude oil by rail — like the one that derailed in Quebec in 2014, killing 47 people — Earthjustice’s Boyles said that the Ohio disaster this month highlights the need for urgent action to protect communities and the environment.

In addition to ongoing concerns about the health of residents in East Palestine and its immediate vicinity, the Environmental Protection Agency has confirmed that hazardous chemicals spilled into the Ohio River, the source of drinking water for 5 million people.

“It should not take another exploding train to get the Department of Transportation’s attention,” said Boyles.

The Norfolk Southern train that derailed this month in Ohio would not have been covered by the braking rule because it was not classified as a “high-hazard flammable train” — the result of a push by the chemical industry to narrow the definition and the attendant safety requirements during the initial 2015 rule-making.

At the time, the National Transportation Safety Board, the independent agency investigating this month’s train accident, requested that the rules cover the category of hazardous materials that includes vinyl chloride, the chemical on board the Norfolk Southern train that was released and burned by crews.

Over the past week, Ohio Gov. Mike DeWine (R) and Pennsylvania Gov. Josh Shapiro (D) have both called on federal officials to consider expanding the definition of “high-hazard flammable trains.”

In their letter to Buttigieg, the environmental groups asked for a “long overdue” response to their administrative appeal filed in 2018.

“If we do not hear from you with a timeline for such a response, we will consider taking legal action, but we would prefer to work this out with you,” the letter reads.

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