When trains block roads, states can’t do anything. Supreme Court could change that

No one’s above the law, although the nation’s railroads come close at the state and local level.

Over the past quarter century, multiple courts have ruled that only the federal government can impose rules affecting railroad operations. Most notably, states can’t limit how long a train can block motor vehicle and pedestrian traffic at a public crossing, the courts have said.

Yet because Congress has passed no laws addressing the subject, there are no limitations. So trains now block some crossings for hours, or even days.

The state of Ohio recently asked the U.S. Supreme Court to settle this vexing problem by hearing its appeal of a lower court ruling that nullified the state’s law setting a time limit on how long trains can block crossings. Ohio argues that public safety is at stake.

“When parked trains block roads for extended periods, they endanger the public. Most significantly, they delay first responders from reaching emergencies in situations where every second counts,” reads the petition. It was filed by the state’s Republican attorney general and the county prosecutor in Marysville, Ohio, where crossings are often blocked by CSX trains near a Honda manufacturing plant.

It’s unclear whether the high court will take on the case. CSX had until this week to enter its response but has asked that the deadline be extended until Jan. 16. The court refused last summer to hear a similar appeal of a court ruling that nullified the Oklahoma law that penalized railroads for blocking crossings longer than 10 minutes.

If the case does move forward, the outcome could determine whether lower courts have correctly interpreted a 1995 law that abolished the Interstate Commerce Commission and is the basis for rulings that have preempted state and local regulations of railroads.

“If nothing else, the historical balance of power over grade crossings strongly favors this Court’s stepping in to provide a clear answer,” the Ohio petition said.

Railroads run ‘roughshod’

Until the late 1990s, states, cities and counties had been allowed under the Federal Railroad Safety Act to impose rules on railroads in areas not addressed by federal laws. States such as Kansas set time limits on blocked crossings, and railroads also had to follow state and local zoning regulations and environmental rules.

That all changed after Congress abolished the Interstate Commerce Commission, the regulatory agency that for more than a century exerted controls on the railroads, right down to deciding how much they could charge shippers.

It was the era of deregulation on Capitol Hill and railroads were struggling financially. Congress’ aim was to make them more profitable and preserve the nation’s freight rail system by axing the ICC and replacing it with the Surface Transportation Board, which has a more hands-off mission.

“When the ICC goes away, most people aren’t going to notice,” Tom Mentzer, a transportation marketing expert at the University of Tennessee, said at the time.

Most people, perhaps. But state and local governments soon learned that Congress had kneecapped them. The railroads argued in court after court that, under the ICC Termination Act, only the federal government could impose regulations that had an impact on the railroads’ ability to transport the nation’s goods.

Judges tended to agree, nullifying local laws and denying ordinary people the ability to sue railroads for damages in many cases.

“Railroads can thus run roughshod, never being held accountable for their tortious behavior,” the author of a 2019 Penn State Law Review article wrote. “More importantly, innocent plaintiffs cannot seek recourse for the harm done to them.”

Less than a year after the ICC Termination Act took effect, a court agreed in 1996 with the BNSF that it did not have to abide by local environmental regulations in the state of Washington.

The next year, a federal judge agreed with the Norfolk Southern and a much smaller railroad that the city of Austell, Georgia, could not impose its land use and zoning authority on the railroad when it proposed building an intermodal rail yard in that Atlanta suburb.

“I think the implications nationwide are just astronomical,” the attorney for Austell told the Atlanta Journal-Constitution. He was right.

The railroads began winning one preemption case after another over a variety of matters.

In 2001, a federal appeals court tossed out a jury verdict that found the Kansas City Southern Railway Corp. negligent because its trains repeatedly blocked access to a Texas landscaping company whose owners said the disruptions forced them out of business.

The court ruled that the suit against Kansas City Southern was preempted by the ICC Termination Act and so was the Texas Anti-Blocking statute.

Laws preempted

Soon, blocked crossing laws began to fall from coast to coast. A January 2002 ruling by the Sixth U.S. Court of Appeals nullified Michigan’s blocked crossing law. Other courts’ decisions have since invalidated blocked crossing laws in Indiana, Kansas and other states.

Elsewhere, states have given up trying to enforce their laws due to mounting legal precedent.

The railroads are not entirely above the law on the local level. An Oklahoma court, for example, ruled that a state could force a railroad to fence its right of way to prevent cattle from wandering onto the tracks.

But federal preemption from local and state regulation of railroads is broad.

The Surface Transportation Board has even said that states cannot regulate the sight lines at rail crossings to make them safer by requiring that trains be parked a certain number of feet away from an open crossing so that motorists can see if a moving train is approaching.

Had such a rule been in place, Ana Guerrero Dominguez might be alive today. The 36-year-old mother of two died in October 2021 as she attempted to drive across three sets of tracks near her home outside Maize, Kansas.

Trains were parked on the outer sidings within 25 or 30 feet of the rail crossing, which had no warning lights or crossing arms to alert motorists to the presence of an on-coming train, according to the accident report obtained by The Star from the Sedgwick County Sheriff’s Department.

The engineer of a Kansas and Oklahoma Railroad freight train traveling down the middle track sounded his horn, but Guerrero Dominquez had no way of knowing how far down the track it was because of her blocked view.

She braked too late to avoid plowing her northbound Chevy pickup into the side of the eastbound train, which pulled the truck down the tracks and crushed it, the accident report said.

Her two school-age daughters were injured, but survived the 3 p.m. crash.

The wreck inspired Kansas state Sen. Carolyn McGinn, who represents Sedgwick County, to introduce legislation last winter that would require that parked rail cars be no closer than 300 feet to a crossing.

It was one of several provisions within a rail safety bill that would limit the length of trains to no more than 8,500 feet, which is a little more than a mile and a half. And it would set two as the minimum number of crew members working on each train passing through Kansas.

The bill died in the Senate Transportation Committee last spring after the state division of budget concluded that, if passed, it likely couldn’t be enforced due to federal preemption.

All the same, McGinn said she will try again when the new legislative session begins in January. Meanwhile, she is working to get crossing gates installed at the intersection in Maize where Ana Guerrero Dominguez died.

Unless the U.S. Supreme Court rules in Ohio’s favor, McGinn may again have a hard time getting her colleagues to consider legislation that has no chance of surviving a constitutional challenge.