District of Columbia Enjoined from Enforcing Ordinance that Prohibits Shipments of "Ultra-Hazardous Material" within 2.2 Miles of U.S. Capitol
November 3, 2005
By Robert Fry
Case History
On February 1, 2005, in an effort to reduce the risk of a terrorist attack near the U.S. Capitol (Capitol), the District of Columbia City Council (council) passed the Terrorism Prevention in Hazardous Materials Transportation Emergency Act of 2005 (act), which temporarily banned for 90 days all shipments of certain “ultra-hazardous materials” (e.g., chlorine, explosives, flammable and poisonous gases) within 2.2 miles of the Capitol unless a permit is obtained from the D.C. Department of Transportation. Mayor Anthony Williams signed the act on February 15.
One day later, CSX Transportation Inc. (CSX) sued the District of Columbia (District) and Mayor Williams, in his official capacity, seeking a declaration that the act was invalid because it was preempted by federal law. On April 18, the U.S. District Court for the District of Columbia (district court), Judge Emmett Sullivan presiding, denied both a motion for summary judgment and a preliminary injunction request by CSX. Judge Sullivan found that, in the absence of federal action to address the perceived threat, the council had the authority to enact the act under its traditional police powers. CSX sought an emergency order from the U.S. Court of Appeals for the District of Columbia (appellate court), and on May 3 the appellate court reversed the district court.
The appellate court, questioning the legality of the act and finding that CSX has a “very high likelihood of success on the merits,” ordered the district court to enter a preliminary injunction prohibiting enforcement of the act. Since that time, the two sides have filed various motions relating to discovery and summary judgment. A status conference currently is scheduled for November 9 at 9:30 a.m. The U.S. departments of Justice, Transportation, and Homeland Security filed comments in support of CSX, as did 25 industry groups. The Sierra Club originally intervened in support of the act, but withdrew from the case on September 27.
Council Arguments
The council argued that the District of Columbia faces disproportionate terrorist risks in comparison with other areas because of the “unique status” of the area “in American political life and history,” and that the federal government has not adequately addressed, or has failed to act with regard to, the issues of security of hazardous materials transportation. The council also argued that alternative routes by shippers of ultra-hazardous materials would substantially decrease the aggregate risk posed by terrorist attacks, and that requiring permits for such shipments would not impose a significant burden on interstate commerce.
CSX Argument
CSX claimed the act is protectionist legislation that unreasonably burdens interstate commerce, interferes with federal regulation of shipments of hazardous materials by rail, and invites “copycat legislation” by other jurisdictions that could seriously compromise interstate shipments throughout the United States. CSX stated that, if it were required to reroute its shipments under the act, the distance traveled with hazardous materials would increase, as would the time spent in transit, which then would “export” and increase risks to other communities. In effect, this would cause CSX irreparable harm because of operational and financial burdens and increased delay and uncertainty in the supply chain.
District Court Decision
Judge Sullivan presented the issue in the case as follows: Whether the council, pursuant to its police powers (and on a temporary basis), could prohibit the rail transport of certain hazardous materials through the District until the federal government more thoroughly addressed the threat of terrorism by putting sufficient safeguards in place. In his analysis, Sullivan considered the Federal Railroad Safety Act (FRSA), the Hazardous Materials Transportation Act, the Interstate Commerce Commission Termination Act of 1995, the Homeland Security Act of 2002, the Commerce Clause of the U.S. Constitution, and the District of Columbia Home Rule Act.
Sullivan stated that, without more evidence detailing security measures undertaken by CSX and the government, he could not make a determination that current federal law preempts the act. Sullivan found the act did not conflict with federal policy because it was a simple “gap-filling measure” intended to lessen the risk of a terrorist attack until the federal government takes more authoritative action. Sullivan also found there was no “discernable economic rationale” for the act and that, although the act may impose incidental burdens on interstate commerce, it did not “unreasonably” burden commerce.
Appellate Court
CSX argued before the appellate court that the act is preempted by the FRSA, which was enacted to “promote safety in every area of railroad operations and to reduce railroad-related accidents and incidents.” CSX and the United States both argued that the U.S. Department of Transportation “covered the subject matter” addressed in the act (that being the security of hazardous materials transportation by rail) by issuing a final rule known as HM-232, which was enacted in response to security concerns arising from the “9-11” terrorist attacks and subsequent threats related to hazardous materials.
Under HM-232, both rail and motor carriers are required to develop and implement security plans for transporting hazardous materials; it requires a flexible, individually tailored security plan for each transporter so the transporter can tailor its plans to its specific circumstances and operations. The appellate court found the council’s claim to basically be that HM-232 “inadequately” covers the subject matter of en route security of rail transport of hazardous materials. The appellate court then stated that it is up to the U.S. Department of Transportation or the U.S. Department of Homeland Security to gauge the efficacy of the security measures undertaken.
In determining that CSX satisfied the standards for an injunction, the appellate court found the following: 1) the act likely does not address an “essentially local safety or security hazard”; 2) the act appears to be “incompatible” with HM-232; 3) the act appears to “unreasonably burden interstate commerce”; and 4) CSX sufficiently demonstrated irreparable injury. The appellate court also stated the effect of the act is to shift (at least some) risk to other jurisdictions. Based on the foregoing, the appellate court ruled that CSX has a substantial likelihood of success on the merits of the argument that HM-232 covers the subject matter of the act. The appellate court therefore did not address the other challenges to the act under the aforementioned laws.
 Hazmat Alliance
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