A little over a month ago, a train derailed in East Palestine, Ohio, staining the sky with plumes of black smoke. Many of the train’s cars were packed with hazardous materials including vinyl chloride, a poisonous and combustible gas. To preempt an explosion, first responders executed a controlled release of toxic fumes from the burning wreck.
The disaster temporarily displaced thousands. Its precise environmental impacts remain unclear. As of this writing, authorities are advising any East Palestine residents who rely on well water to avoid drinking from their taps. A large number of local residents are complaining of headaches, nausea, fatigue, and eye irritation. Whether these symptoms derive from environmental toxins or “psychosomatic effects” is unclear.
Investigations into both the derailment’s causes and its consequences remain ongoing. But last week, a group of senators decided that no further information was necessary to justify a legislative response. They are correct.
Their bipartisan bill is less comprehensive than rail unions and environmental advocates would like but more robust than congressional Republicans have conventionally approved.
To guard against rail disasters caused by human error, the bill requires carriers to keep “well-trained, two-person crews aboard every train.” To improve the disaster response to any future derailment, the bill compels railways to give state emergency officials advance notice of any hazardous materials they are carrying. To reduce the risk of future calamitous derailments, it strengthens notification and inspection requirements for trains carrying dangerous substances, increases fines for safety violations by railroads, and invests $27 million into the research and development of tank-car safety features.
In a provision that attempts to directly address the likely cause of the derailment in East Palestine, the bill tightens regulations on hotbox detection, the mechanism through which rail crews monitor the overheating of bearings, axles, and brakes. At present, railroads determine the temperature threshold that triggers a detector’s alarm, and that temperature is not always taken at short intervals. The bill empowers the government to set that threshold temperature while also mandating hotbox-detection scans every ten miles on trains carrying hazardous materials. A preliminary investigation into the East Palestine disaster found that the crew on Norfolk Southern’s train was not alerted to its overheating wheel bearing until it passed a sensor shortly before the derailment.
Three Senate Republicans — J.D. Vance, Marco Rubio, and Josh Hawley — have co-sponsored the legislation, and the upper chamber’s Democratic caucus is broadly supportive with Senate Majority Leader Chuck Schumer saying he will do “whatever I can” to pass the measure.
But getting the bill through the Senate will require its champions to secure at least nine Republican votes. And passing it through the House will demand buy-in from the chamber’s GOP leadership. Broad Republican support for the legislation has yet to materialize. The party’s leadership has argued that a legislative response is premature since federal inspectors have yet to complete their investigation. “Let’s get the facts,” Senate Minority Whip John Thune told CNN on Wednesday, “and then figure out what, if anything, needs to be changed.”
This position is superficially reasonable. It is true that many pertinent facts about the derailment in East Palestine remain unclear. The precise causes of the derailment have yet to be confirmed, while the severity of its consequences remains a matter of dispute. Within a week of the derailment and controlled burn-off of spilled chemicals, EPA testing of the air in and around the evacuation zone showed that pollutants had returned to normal levels. Subsequent government testing of the air and water in the region has found no concerning contaminants. There is some reason to question whether these tests have captured the disaster’s full environmental impact. Independent testing from researchers at Texas A&M University and Carnegie Mellon University found that air levels of nine chemicals were higher than normal. Depending on how long such elevated concentrations last, the researchers suggested they could present public-health concerns.
In any event, it’s possible that the government’s preliminary assessment of the derailment’s causes will prove faulty while the media’s initial characterization of its significance for public health proves overstated. Even in such a circumstance, however, the case for new rail-safety legislation would remain strong.
America’s rails have grown much safer since the 1970s with the annual number of derailed cars plummeting. Yet the U.S. still witnesses more than 1,000 derailments a year. And the risk of any one of those derailments resulting in catastrophe has risen dramatically, as derailments are much more likely to involve train cars carrying hazardous materials today than they were in the past. As reporters from the Lever note, the annual number of cars carrying hazardous materials on derailed trains has increased substantially since the 1990s.
The tail risks of allowing thousands of cars stuffed with toxic and/or combustible chemicals to ride on derailed trains each year were illustrated by a series of accidents in the early years of last decade. In July 2013, a freight train loaded with crude oil derailed, caught fire, then exploded in the middle of Lac-Mégantic, a small village in Canada, killing 47 people and damaging more than 30 buildings, effectively wiping out half of downtown.
This and other incidents led the Obama administration to propose a series of new rail-safety regulations, including more stringent speed limits, disclosure requirements, and advanced-braking systems on trains carrying crude oil. The National Transportation Safety Board advised the White House that these regulations should be extended to trains carrying highly flammable gasses and chemicals. But the rail industry successfully thwarted this more expansive version of the rule through lobbying.
The Trump administration then narrowed the regulations further. Obama-era rules had required rail companies to outfit trains carrying crude oil with “electronically controlled pneumatic” brakes that can reduce stopping distances by up to 60 percent. The Republican administration rolled back that measure.
Thus, even before last month’s disaster, America’s freight rail operated with fewer safety precautions than many experts deemed appropriate. Had federal regulators mandated advanced brakes on trains carrying chemicals like vinyl chloride, the disaster in East Palestine might have been significantly mitigated.
Of course, federal law should not give absolute priority to safety over every other value. Most Americans would not want speed limits on all highways capped at 35 miles an hour, even though this would dramatically reduce road deaths. To the extent that minimizing the risk of rail accidents would require raising shipping costs for distributors — and thus costs for consumers down the supply chain — it is reasonable to ask how we wish to balance safety against efficiency.
In the present context, however, the benefits of rail companies’ risky efficiencies accrue primarily to shareholders, not shippers. Decades of consolidation have left the U.S. with only seven Class I railroad companies, four of which collectively control more than 83 percent of the freight market. For this reason, rail firms face little pressure to pass on any savings derived from corner-cutting to their users.
Over the past decade, North America’s dominant railways have taken drastic measures to reduce their operational costs, including shedding 30 percent of their employees and establishing a scheduling system that subjects their remaining workers to ever-changing, irregular shifts. This imposed a cost to rail safety, as smaller and less well-rested train crews are liable to miss warning signs of potential accidents. Yet the railways’ labor strategy, among other cost-saving measures, delivered financial benefits, albeit to a narrow constituency. In the past ten years, the net income of the top-seven North American railroads doubled and payouts to shareholders topped $146 billion while freight rates remained largely stable (and well above early-aughts levels).
Therefore, through the right combination of policies, it should be possible to enhance the safety of the railroads at their shareholders’ expense. And though there may be an argument for valuing lower consumer prices over minimizing the risk of airborne toxic events, the case for valuing large payouts for the (overwhelmingly wealthy) owners of railroad stock over the preemption of mass poisonings seems difficult to make in a democracy.
The bipartisan rail-safety bill is not the be-all and end-all of reform. The Biden administration could unilaterally pursue many of its provisions. And there are several worthwhile measures that lie outside the legislation’s scope, including the advanced-braking mandate and a federal guarantee of paid sick days for rail workers. Still, the bipartisan legislation is both worthwhile and plausibly passable at a time of divided government. In other words, it’s a good start. And that start should not be delayed. Between the introduction of the bipartisan bill and the publication of this column, another train derailed in Ohio.
The best time to mandate stronger safety protocols for trains carrying hazardous materials was years ago. The second best is today.
