• Mark Ryan

Can the Surface Transportation Board Find the CWA to Be Preempted for Rail Cars?

On February 19, 2020, the Surface Transportation Board issued a decision (link below) that it would look at a request from the Association of American Railroads to consider whether 49 U.S.C. § 10501(b) preempts CWA regulation of discharges from rail cars. This is response to the 2016 case Sierra Club v. BNSF Railway Co., a summary of which I've provided below. Assuming the STB rules that the transportation act preempts the CWA, I assume it won't be the last word, and that decision would likely be appealed to an Article III court. In any case, this will be interesting to watch. Trains typically fit the definition of point sources subject to NPDES permitting requirements when they discharge to WOTUS.

Sierra Club v. BNSF Railway Co., 2016 WL 6217108 (W.D. Wash. 2016) (denying cross motions for summary judgment, held that coal dust from passing freight trains that directly entered WOTUS was a point source discharge, but dust that landed on the ground, then washed into the water was not a point source discharge; point and nonpoint sources are not distinguished by the kind of pollution they create or by the activity causing the pollution, but rather by whether the pollution reaches the water through a confined, discrete conveyance; nonpoint source pollution is generally excluded from CWA regulations and is left to the states to regulate through their own tracking and targeting methods; factual disagreements about which of the alleged numerous discharges actually occurred precluded summary judgment; plaintiffs had standing to sue despite fact that they had not provided evidence of actual harm for every single water body in state over which defendant’s trains passed)

49 U.S.C. § 10501(b) states in relevant part :

(b)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 facilities, 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.

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