18 May State of Ohio v. CSX Transportation, Inc.: Federal Preemption in Railroad Regulation
Do states have the authority to regulate how long trains can stop at grade crossings? That, in essence, is the question being presented in a recent petition for Supreme Court certiorari by the State of Ohio in its action against railroad behemoth CSX. Filed in November 2022, the petition arises after the Ohio Supreme Court, in a divided opinion in State of Ohio v. CSX Transportation, Inc., no. 2020-6038 (Ohio Aug. 17, 2022), held that federal law preempts such action by the states.
The Background: At stake are similar laws in thirty-eight states and the District of Columbia which set maximum limits on the time that a stopped train can block a grade crossing. Many of these regulations have been on the books for decades, in numerous cases stretching back more than a century, as with Ohio’s original law, which was enacted in 1853. The time limits vary; some states impose a single statewide limit, others have devised time frames that vary based on their localities’ populations, and some have delegated authority over grade crossing time limits to local governments, allowing for individualized considerations.
The problem will be familiar to anyone who has had to wait significant periods for a train to clear a grade crossing. Those intervals are increasing as railroads add cars to increase profitability. Many trains are now nearly two miles long, with some being reported at more than twice that length. While the temporary delay caused by a moving train is inconvenient enough, the subject of this litigation is stopped trains, which can block road crossings for hours or even days as freight is unloaded or cars are shuffled. The resulting inability of vehicles to pass can have deadly consequences as EMTs, fire departments, and law enforcement personnel are prevented from reaching people in critical need on the other side of the tracks. Impatient drivers sometimes attempt to end-around the rail cars, resulting in serious injury or worse. With more than 130,000 grade crossings across the nation, bisecting roads in huge cities and small outposts alike, the issue is significant.
The Litigation: Ohio’s case arises out of CSX’s blockage of crossings as the railroad delivers materials to the Honda manufacturing factory in Marysville. Ohio’s “Blocked Crossing Statute,” Ohio Rev. Code §5589.21, prohibits stopped trains from blocking public roads for longer than five minutes, with certain exceptions. The state issued five misdemeanor notices of violation to CSX which had blocked four different Marysville roads, in some cases for more than an hour. The railroad countered that the State has no authority to take that action because the issue is fully preempted by federal law. The case began in Marysville Municipal Court, which dismissed the State’s action in February 2019 on the basis of federal preemption. That decision was reversed in April 2020 by the Ohio Court of Appeals. But last year the Ohio Supreme Court again reversed, finding federal preemption. The State’s petition for certiorari followed.
Competing Legal Inputs: There is no federal law directly addressing the question of train stoppage on grade crossings. The Ohio Supreme Court was required to consider the issue by analyzing two acts of Congress that address the larger question: when and how does federal law preempt state regulations related to railroads? The first is the Interstate Commerce Commission Termination Act (Termination Act). The Termination Act grants to the federal Surface Transportation Board “exclusive” jurisdiction “over transportation by rail carriers,” “rates,” “classifications,” “rules,” “practices,” “services,” “facilities,” and “sidetracks.” 49 U.S.C. § 10501(b). However, as will be discussed more fully below, the Termination Act does not expressly address safety. The second measure is the Federal Railroad Safety Act (Safety Act), also discussed below, which arguably provides States with a savings clause, permitting them to enforce laws “related to railroad safety” until “the Secretary of Transportation … prescribes a regulation or issues an order covering the subject matter of the State requirement.” 49 U.S.C. §20106(a)(2).
The Ohio Supreme Court lead opinion found that Ohio’s Blocked Crossing Statute did not relate to “safety” and was not saved by the Safety Act:
However, R.C. 5589.21 is a not a law related to railroad safety, because a limit on the amount of time that a train may occupy a crossing is not related to the safe operation of trains. Rather, “improper obstructions create uniquely different local safety problems by preventing the timely movement of ambulances, the vehicles of law enforcement officers and firefighters, and official and unofficial vehicles transporting health care officials and professionals.” R.C. 5589.20. Although blocking a railroad crossing poses a threat to public safety, a statute prohibiting the blocking of a crossing does not fall under the federal Safety Act, because it does not affect the safety of railroad operations themselves or seek to reduce railroad-related accidents and incidents, see 49 U.S.C. 20101. (emphasis added).
Not surprisingly, in its petition, the State of Ohio traces a different evolution and intent behind the Safety Act. It notes that when Congress formed the Interstate Commerce Commission in 1887, it gave that entity power over interstate railroad rates–but not safety issues. Eighty years later, Congress created the Federal Railroad Administration to address safety concerns, passing the Safety Act shortly thereafter. The State argues in its petition that the codified purpose of the Safety Act “is to promote safety in every area of railroad operations” and to reduce all “railroad-related accidents and incidents.” 49 U.S.C. §20101. It therefore covers “all public-safety concerns arising from railroad operations—not just concerns pertaining to the safety of railroad employees and passengers.” As an example, the Safety Act “protect[s] pedestrians in densely populated areas along railroad rights of way.” 49 U.S.C. §20134(a). Importantly, says the State, although the Safety Act empowers the Secretary of Transportation to “prescribe regulations and issue orders for every area of railroad safety,” 49 U.S.C. §20103(a), no regulations have been promulgated relating to train stoppage at grade crossings.
Ohio cites other language in the Safety Act which compel a conclusion that there is room for state regulation on some aspects of rail safety, because it envisions a degree of national cohesion: “Laws, regulations, and orders related to railroad safety … shall be nationally uniform to the extent practicable.” 49 U.S.C. §20106(a)(1)(emphasis added). This hint of state-by-state variability is even more explicit, says Ohio, in the actual savings language of the Safety Act, which says:
A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation . . . prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order (A) is necessary to eliminate or reduce an essentially local safety or security hazard; (B) is not incompatible with a law, regulation, or order of the United States Government; and (C) does not unreasonably burden interstate commerce. 49 U.S.C. §20106(a)(2) (emphasis added).
Unpacking this language, says the State, creates more than one safe harbor which allows for Ohio’s Blocked Crossing Statute.
The State also sees the Termination Act, passed in 1995 to abolish and replace the Interstate Commerce Commission, as presenting no impediment to the Blocked Crossing Statute. While it codified a list of congressional policy goals to be pursued in “regulating the railroad industry,” 49 U.S.C. §10101, those goals predominantly focused on economic deregulation, fostering competition and reducing regulatory barriers to entry. The State also defuses another provision of the Termination Act, central to the preemption dispute here, which states:
The jurisdiction of the Board over—
(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facili-ties, even if the tracks are located, or intended to be located, entirely in one State, is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law. 49 U.S.C. §10501(b)(emphasis added).
As the State notes in its petition, despite the exclusivity language cited above, the Termination Act does little to explain how it interacts with other state or federal government regulations. “The Termination Act does not expressly repeal the Safety Act. See Tyrrell v. Norfolk S. Ry. Co., 248 F.3d 517, 522–23 (6th Cir. 2001). Nor does it repeal, or otherwise limit the scope of, the Safety Act’s savings clause. See id.at 523–25. Accordingly, the Federal Railroad Administration and the States have continued to adopt safety-related regulations pertaining to the railroad industry.”
Ohio points to the Supreme Court’s longstanding recognition that states hold authority over grade crossings. More than a century ago, the petition states, the Court noted that “the public’s interest in using the streets is a ‘more important interest’ than the railroads’ interest in using grade crossings, and regulations pertaining to grade crossings ‘obvious[ly]’ implicate the States’ traditional ‘police power.’ ”Erie R. Co. v. Bd. of Pub. Util. Comm’rs, 254 U.S. 394, 410 (1921). Even after Congress began regulating railroads, grade crossings remained an area “within the police power of the States.” Lehigh Valley R. Co. v. Bd. of Pub. Util. Comm’rs, 278 U.S. 24, 35 (1928).
That police power was front and center when Ohio’s General Assembly first enacted the Blocked Crossing Statute:
The general assembly finds that the improper obstruction of railroad grade crossings by trains is a direct threat to the health, safety, and welfare of the citizens of this state inasmuch as improper obstructions create uniquely different local safety problems by preventing the timely movement of ambulances, the vehicles of law enforcement officers and firefighters, and official and unofficial vehicles transporting health care officials and professionals. Ohio Rev. Code §5589.20.
Differing Analyses in Ohio’s Courts: This confluence of competing legal inputs has produced a diversity of analyses in Ohio’s courts as they have considered State of Ohio v. CSX. The Marysville Municipal Court lamented the lack of federal regulations “addressing the critical importance of the timely passage of emergency and law enforcement vehicles,” but held that the Termination Act preempted the Blocked Crossing Statute, without considering the Safety Act’s savings clause. The Ohio Court of Appeals for the Third District reversed, concluding that the Termination Act does not displace state laws that have only a “remote or incidental effect on rail transportation.”
The Ohio Supreme Court then reinstated the Municipal Court’s dismissal on preemption grounds. But it produced a number of opinions which clearly reveal the unsettled interpretation of grade crossing regulations. Chief Justice Sharon Kennedy’s analysis, quoted earlier in this piece, does not stop at the Termination Act: she sees the Safety Act’s savings clause as an exception to the Termination Act. But, as noted above, she finds that the Blocked Crossing Statute is not related to “railroad safety,” and is therefore not encompassed by the savings clause, which preserves only “laws that make it safer to operate a railroad or that prevent accidents such as derailment and collisions with pedestrians and automobiles.”
Justice Patrick Fischer wrote a separate concurrence, also concluding that it was the Safety Act, rather than the Termination Act, that controls. Unlike Justice Kennedy, in his view the Blocked Crossing Statute is a law “related to railroad safety.” But Justice Fischer finds that the Statute does not fit within the specific safe harbors in the Safety Act: first, the Federal Railroad Administration has partially covered that subject matter by requiring some states, including Ohio, to submit “action plans” regarding certain high-risk grade crossings. Next, although the Safety Act’s second safe harbor allows States to impose “more stringent” regulations under certain conditions, §20106(a)(2), the Blocked Crossing Statute is “incompatible with”—not simply more stringent than—the Termination Act.
Justice Jennifer Brunner dissented, finding that the Safety Act would preserve the Ohio Statute. The Act’s savings clause allows states to pass laws “related to railroad safety” unless the Secretary “prescribes a regulation or issues an order covering the subject matter of the” state law in question §20106(a)(2), and no such regulation has been forthcoming.
As the petition points out, each of these three opinions received the votes of another justice, meaning there was no majority opinion in State of Ohio v. CSX. The Ohio Supreme Court result produces continuing uncertainty about the interaction of the Termination Act and the Safety Act–and the prospect, albeit by a minority in dissent, that the Blocked Crossing Statute should prevail.
Amicus Support: In December 2022, Indiana filed its amicus brief in support of Ohio, joined by eighteen other states. Their brief argues that neither the Termination Act nor the Safety Act preempts anti-blocking statutes, stating that federal authorities have themselves acknowledged leaving anti-blocking laws to states and localities. They point out that states are best positioned to address the varying local challenges presented by blocked crossings around the nation, citing to numerous such laws.
The Larger Preemption Picture: The CSX Brief in Opposition does not dispute that analyses diverge as to the interplay between the Termination Act and the Safety Act. But that does not obscure, the railroad says, the ultimate fact that every court to have considered the issue has found a state’s grade stoppage regulation to be preempted by federal law. CSX cites a recent Tenth Circuit case on the subject where the Supreme Court declined to grant certiorari (BNSF Ry. v. Hiett, 22 F.4th 1190, 1192 (10th Cir. 2022), cert. denied sub nom City of Edmond v. BNSF Ry. 142 S.Ct. 2835 (2022), as well as decisions at the Fifth and Sixth Circuits, and in the state courts of California, Kansas, Illinois, Washington, Indiana, Oregon, and elsewhere. As the CSX brief puts it:
Ohio does not contend otherwise. It admits that “the consensus view of courts around the country” is “that federal law preempts state and local laws that regulate blocked grade crossings. Pet. 1. But, it says, “that general consensus masks significant disagreement.” Pet. 23.
Going Forward: The petition in Ohio v. CSX has now been before the Court for more than six months and was distributed for Conference in mid-March. It remains to be seen whether this case will be more compelling to the Justices than the aforementioned Tenth Circuit BNSF case. One change this go-round is that the Supreme Court called for the views of the Solicitor General (CVSG) as to whether the Court should grant certiorari, signaling that there may be interest from at least some of the Justices in the case; while the Court does not have to follow the recommendation of the Solicitor General, it often does.
In the absence of Supreme Court resolution, it appears that state laws governing trains stopped on railroad grade crossings face a challenging future, given that several courts have already declared such laws to be preempted. If the Supreme Court denies certiorari, Congressional action will be necessary to clear the path.
In that regard, specific solutions do not seem to be on the immediate horizon. The Railway Safety Act of 2023 (S. 576), proposed following the hazardous material spill in Palatine, Ohio, references “blocked highway crossings” – but only in the context of responding to those crises. The bill has yet to pass the House, where it presumably faces significant odds. And while the Federal Railroad Administration created a “Blocked Crossings Portal” in 2019, enabling the public to report blockages, it appears that the FRA intends to use the data to help derive individualized local solutions to the problem:
FRA will use the information collected to gain a more complete picture of where, when, and for how long such obstructions occur at the nation’s approximately 130,000 public grade crossings, and what impacts result from this. FRA will share the information with stakeholders, using it to help facilitate local solutions to blocked crossing issues. (emphasis added).
In sum, until Congress or the appropriate executive authority provides definitive guidance, it appears that the issue of state regulation of blocked grade crossings will continue to be litigated.