Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

FOR IMMEDIATE RELEASE: 
Feb 23 2021

Decision invalidates Federal Railroad Administration’s deregulatory rule, allows Washington to enforce minimum train crew-size requirements

SEATTLE — A federal court of appeals ruled that the Trump Administration violated the law when it attempted to override state regulations governing the number of crewmembers needed to safely operate a train. Attorney General Bob Ferguson, along with two other states and national workers’ unions, brought the challenge in 2019 — when the Trump Administration published its deregulatory rule without any notice, and in the wake of a catastrophic and deadly derailment involving a crude-oil train staffed by only one crewmember.

The decision of a three-judge panel from the U.S. Court of Appeals for the Ninth Circuit undoes the Federal Railroad Administration’s (FRA) unlawful action, which would have allowed railroads to operate trains with only one crewmember, despite widespread safety concerns and the limitations of automation technology. The Ninth Circuit found the Trump Administration’s rationale for its action “problematic,” as the agency offered “no safety or economic justification” for erasing state railroad-safety laws. As a result of the ruling, states may once again adopt and enforce laws requiring a minimum number of crewmembers to ensure safe train travel.

The decision will allow a Washington law to take effect. That law, passed in June 2020, requires most trains traveling through the state to have at least two crewmembers aboard.

“The Trump Administration unlawfully attempted to impose a national one-person crew standard that jeopardizes our environment and Washingtonians’ safety,” Ferguson said. “We took the federal government to court to safeguard our states’ ability to protect our residents and our environment — and the court vacated this illegal rule. This decision makes workers safer, residents safer and will ensure our environment remains clean and healthy.”

Judge Consuelo M. Callahan wrote the opinion.

This case represents the Washington Attorney General’s 41st legal victory against the Trump Administration.

Case background

In 2016, the FRA initiated a rulemaking that would have required a minimum of two crewmembers on trains nationwide. The proposal was prompted by a crude-oil train derailment that killed 47 people and burned much of the downtown area of Lac-Megantic, Quebec, when the sole crewmember failed to secure the train properly. The FRA was concerned at the time that, amid railroads’ increasing use of automation technology, crew-size reductions could threaten the safety of workers and communities and increase the risk of additional deadly incidents. The public largely agreed, with over 98 percent of commenters supporting a two-crewmember rule.

However, the FRA did not finalize the proposed rulemaking within the 12-month deadline established by federal law. Without a federal crew-size minimum in place, states continued to enforce and adopt their own crew-size requirements, as they had done for years. But in May 2019 — over two years after the deadline, and with no prior notice — the Trump Administration published a final rule. That rule did the opposite of the 2016 proposal: rather than establishing a two-crewmember minimum, the final rule established that there would be no crew-size minimum anywhere in the United States, and invalidated crew-size requirements established under state law.

The Attorney General’s Office asserted the rule change was untimely and failed to provide public notice, in violation of the Administrative Procedure Act. The office also asserted that the Trump Administration’s invalidation of state crew-size requirements was arbitrary and capricious. Ferguson noted that the FRA had previously cited concerns about the pervasive problem of fatigue in the railroad industry — which would be exacerbated by staffing trains with only one crewmember — and about the limited ability of one- (or zero-) person crews to respond to emergency situations. For example, at a July 2016 hearing, a railroad conductor described an incident in which he was able to save a young boy’s life precisely because he was part of a two-person crew. A railroad engineer explained that conductor crewmembers had prevented “near misses” on multiple occasions during his career, emphasizing that “[i]f my conductor hadn’t been there ... it could have been something terrible.”

When the Trump Administration took over, these concerns disappeared without any discussion or notice — which Ferguson asserted was arbitrary and violated the Administrative Procedure Act.

Assistant Attorneys General Kristin Beneski, Nathan Bays and Harry Fukano handled the case for the Attorney General’s Office.

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The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.

 

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