Major railroads on Monday, Oct. 19, 2015 asked the U.S. District Court for the District of Columbia. federal court to dismiss a lawsuit filed by the American Chemistry Council and other trade associations seeking to prevent the railroads from suspending service for shipments of TIH (toxic-inhalation hazard) commodities if Congress doesn’t extend the Dec. 31 PTC implementation deadline.
The railroads, led by BNSF, CSX, Norfolk Southern and Union Pacific, contend that the lawsuit essentially asks the court to insert itself into a dispute over rail transportation policy that Congress has already committed to the jurisdiction of the Surface Transportation Board. In their motion to dismiss the lawsuit, the railroads contend that the STB should resolve the dispute because the Board has the exclusive power to grant injunctive and declaratory relief on railroad matters
“The key point is that this dispute raises a question of national transportation policy that Congress has committed to the agency best equipped to analyze the complicated technical questions and weigh the competing policy concerns—the Surface Transportation Board,” the railroads said in their motion.
The American Chemistry Council, The Fertilizer Institute and the Chemical Institute simultaneously filed a separate petition with the STB, which had already agreed to accept the case and put the proceedings on an expedited schedule. The railroads argued that STB’s action supports their reason to have the federal suit dismissed:
“Plaintiffs have acknowledged the STB’s jurisdiction over this dispute in the most telling way possible: The day after they filed this lawsuit, they filed a virtually identical action in the STB,. But the fact that plaintiffs have invoked the STB’s jurisdiction on this very issue — and are actively litigating their case before that tribunal — is yet another reason for this court to defer to the board. Were this court to assert jurisdiction, it would create an untenable situation in that two tribunals would be adjudicating the same issue at the same time. Aside from the massive inefficiencies and the needless consumption of the resources of the parties, the Board and this court, it would raise the troubling prospect of conflicting rulings.”
With their petition, the trade groups are seeking to have the STB block to the railroads’ plans to suspend TIH shipments as early as Thanksgiving, by declaring that the railroads' common carrier obligation requires them to continue such shipments. Central to their STB petition is whether the shippers’ request for the railroads to continue shipping TIH materials, would count as a “reasonable” request under federal law. The railroads say it’s not reasonable because continuing to ship TIH materials without having fully installed PTC and without an extended deadline would be illegal.
“Plaintiffs argue that federal safety laws must yield to their business needs,” the railroads said. “They urge this court to issue a preliminary injunction commanding the freight railroads to ship TIH materials throughout the nation in violation of federal safety laws, contending that the railroads are obligated to do so pursuant to their common carrier obligation to transport goods upon ‘reasonable’ request.”
The railroads had put lawmakers and customers on alert that they’d have to suspend rail service for anyone shipping the types of hazardous materials covered under the federal mandate for fear of being held liable for violating the letter of the law because they wouldn’t have PTC installed by Dec. 31. Adding to the uncertainty is the Federal Railroad Administration’s indication that it would comply with the law and pursue enforcement actions, including levying thousands of dollars in daily fines against railroads that don’t have PTC installed or continue operating on lines that should have it but don’t.
Attorneys Jeffrey O. Moreno and John T. Bergin of Thompson Hine LLP and Paul M. Donovan of LaRoe Winn Moerman & Donovan are representing plaintiffs. Thomas H. Dupree Jr., Jacob T. Spencer and Sarah Erickson-Muschko of Gibson Dunn are representing the railroads.
The case is American Chemistry Council et al. v. BNSF Railway Co. et al., case number 1:15-cv-01584, in the U.S. District Court for the District of Columbia.