Jacqueline Bickford
I. Introduction
Since their invention 190 years ago, railroads have been instrumental to the growth of America. In decreasing cross-country travel time from months to weeks and cutting its cost to $150 from $1,0001, it's hard to see the downfalls of rail travel at a time when it brought national unity and a flourishing economy. This rose-colored view towards railroads would continue until the 1960s, but it didn’t come without a price; millions of hectares of forests disappeared, previously untouched water and soil became contaminated, and undisturbed wildlife faced never-before-seen dangers. While it is true that railroads and their creation are destructive by nature, their alternatives– cars and planes– aren’t any better. With domestic flights and single passenger cars emitting 133 and 171 grams of CO2 per kilometer traveled, respectively, the 41 grams emitted from domestic rail seems like an eco-friendly alternative2. But a caveat to this seemingly sustainable mode of transportation is the rate at which these trains derail; in just 2022, 1,164 trains derailed across the country. This averages out to about three derailments per day3. Since rail transport is here to stay, the challenge lies in finding the cause of these derailments, which don’t always lie in structural or mechanical issues but rather in the enforcement of laws (or lack thereof) surrounding railways. Current environmental rail law is not doing enough to hold companies accountable, and thus hazardous chemicals continue to be transported irresponsibly, leading to derailments that have come at a massive cost to our environment with spillover effects on human health.
II. History: What Protections are in Place?
After years of irreversible damage to our environment, the 1970s brought the first major environmental law in the United States: the National Environmental Policy Act (NEPA)4. Enacted by then-President Richard Nixon, NEPA established the Council on Environmental Quality, which would later evolve into the Environmental Protection Agency. NEPA required federal agencies to consider the environmental impact of their proposed actions before making decisions, and it mandated that the public be involved in the decision-making process and that they consider alternative courses of action.
NEPA brought amendments to the Clean Air Act, the Clean Water Act, and the Endangered Species Act. The Clean Air Act5 sets limits on the amount of pollutants that can be emitted and sets air quality standards, and the Clean Water Act6 does the same but with the nations’ water. The Endangered Species Act7 provides for the conservation of species that are endangered. Despite the benefits of NEPA, like providing the public and officials with access to information for decision-making, it faced criticism as its arbitrary standards were burdensome and confusing, so much so that the original intent of the act was buried under a plethora of procedural requirements.
In response to the shortcomings of NEPA and growing concerns about the release of hazardous substances, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)8 in 1980. CERCLA authorized the EPA to regulate waste sites and respond to releases of hazardous substances, pollutants, or contaminants that may pose a threat to human health or the environment. Unlike previous acts, CERCLA clearly defined the regulation of railroads. Under CERCLA, railroad companies can be held liable as the “owner and operator of a vessel or a facility” that disposes of hazardous substances9, unless the release was exclusively caused by “an act or omission of a third party other than an employee or agent of the defendant10.”
The Hazardous Materials Regulations (HMR)11 govern the transportation of hazardous materials and divide their rules into four categories: hazardous material identification and classification, hazardous communication, packaging requirements, and operational rules. Included are proper identification requirements, safe labeling, and employee training and certification. In fact, these regulations have even been solidified by many court cases. The District of Columbia Court of Appeals’ 2010 General Electric Co. v. Jackson12 found that the EPA’s unilateral administrative order (UAO)– an enforcement tool the EPA employs to require parties to take a response action– does not violate the Due Process Clause of the Fifth Amendment because potentially responsible parties (PRPs) are only penalized when a federal court determines that they failed to comply with proper UAO without a legitimate cause13.
There is not necessarily an absence of railroad laws in place, but rather this industry goes largely unregulated because of the lack of enforcement of said laws. A large part of this has to do with the penalties for noncompliance. HMR has set a maximum civil penalty of $55,000 for knowingly violating a requirement, which gets increased to $110,000 if the violation results in death, serious illness, severe injury to any person, or substantial destruction of property14. This amount of penalty is nothing to billion-dollar companies, who often take the risk of not complying, especially since only a small percentage do get caught. Furthermore, by focusing on “commodities and the routes that deliver the most profits15” to please Wall Street investors, the rail industry has undergone a business transformation in which it prioritizes short-term profits over rule-following. According to U.S. Representative Peter DaFazio, who is the chair of the House Committee on Transportation and Infrastructure, railroad executives have grown addicted to “watching the ticker on Wall Street,'' which has come at a cost to the environment and humans16.
III. Environmental Impact of Train Derailment
The impact of this lack of reinforcement can be measured by the thousands of trains that derail each year and the long-lasting effects this has on our environment. To begin, train derailments release toxic pollutants into the air, such as butyl acrylate, vinyl chloride, and isobutylene. These chemicals cause irritation of the eyes, skin, and lungs and can also lead to respiratory issues and even cancer17. Beyond the human impacts, these pollutants only add to the issue of climate change as they act as greenhouse gasses, trapping Earth’s heat in the atmosphere and in high quantities can even lead to smog. These contaminants impact waterways in a similar way. Not only do they build up in the water itself, impacting its drinkability, but they build up in aquatic animals too. These toxins lead to poor fish health and a decrease in their populations, which can lead to species endangerment and fishing restrictions. These toxins only continue to spread, as when another organism eats that fish, it is now contaminated too. These chemicals spread to the entire food chain and can completely destroy it. This is known as bioaccumulation, or an increase in the concentration of chemicals in an organism over time compared to the normal concentration in the environment.18 Perhaps the animals that are most at risk are amphibians– animals like frogs and toads– as they are essentially double exposed since they live on land and in water.
Unlike air, in which chemicals can eventually disperse into the atmosphere, soil contamination is especially concerning. In tightly packed soil, the process of dispersion occurs much slower, causing long-term damage to soil fertility and traces of these chemicals in our agriculture. These chemicals may also slow plant growth or kill them altogether. Water can again be contaminated through soil, as chemicals can seep through it and eventually reach underground aquifers and groundwater. A prompt response to derailments– which hardly occur due to declining funds for hazardous waste cleanup– is necessary to mitigate their pervasive effects on the environment.
IV. A Human Rights Perspective: East Palestine, Ohio - Case Study
On February 3rd, 2023, a Norfolk Southern train carrying hazardous materials derailed in East Palestine, Ohio. 25 cars went off the tracks, and about 2,000 residents were told to evacuate or stay inside. This is a complete violation of human rights. In 2021, the United Nations passed resolution 48/13,19 recognizing access to a healthy and sustainable environment as a universal right. The release of these chemicals is a violation of this right as it impedes individuals from living in a healthy environment. East Palestine residents, like many others living in derailment areas, reported falling ill from inhaling chemicals, including not being able to breathe, coughing up phlegm, experiencing rashes, headaches, and having a sore throat20. Environmental contamination can also affect the availability of food and natural resources, meaning other basic necessities for human survival, beyond clean air, could be gone next.
Moreover, access to clean water is specifically protected by the UN. In 2010, the UN passed a resolution declaring clean water a human right. In the case of East Palestine, like many other cities, this resolution was violated. 7.5 tons of contaminated soil and 1.5 million gallons of contaminated water have been excavated from East Palestine due to the presence of carcinogens.21 Citizens of the city, especially those whose source of water was wells, were encouraged to drink bottled water, which was not provided. Many were left without clean water options and were forced to drink the contaminated water.
While UN resolutions are not legally binding, a failure on the part of railway companies to comply with laws and regulations is costing individuals their right to health. With an average of 3 train derailments per day in the U.S., East Palestine was not an isolated event.22 In fact, these derailments have occurred so often to the point that they have become normalized, as seen in an interview with NPR in which experts said that having two derailments in one month is not unusual.23 It is imperative that we take action to prevent train derailments, as the longer they occur, the more individuals will be at risk of losing their fundamental human rights.
V. Recommendations
Increase transparency and public reporting by requiring that businesses report the kinds and amounts of goods they are transporting.
Enact the Railway Safety Act of 2023, which mandates that operators disclose to states when hazardous shipments are coming through. In addition, it calls for the installation of a hot-box detector on every 10-mile segment of rail track that is used to transport hazardous materials.
The reversal of the deregulation that has occurred in the industry by having a stricter system of laws like speed limits, braking standards, and more clear standards for what companies are required to do.
Stricter federal regulation when it comes to the transportation of hazardous materials:
Increase training and certification requirements for all parties involved in the transportation process, including drivers, handlers, and shippers.
Impose stricter limits on the quantities and types of hazardous materials, along with more rigorous inspection.
Require comprehensive labeling and improved packaging of hazardous materials to ensure the contents are known and to reduce the risk of accidents.
Enforcement of rules by increasing fines and penalties for when railroads break the law . The fines are at most $110,000 right now, which is nothing to these billion dollar companies.
Moving trains away from manpower and toward better technology is necessary as human error is the leading cause of derailments. When this is not possible, however, ensuring the two-man crew rule is implemented is essential.
More comprehensive emergency response planning, which would require hazardous materials response teams in localities that are well staffed, trained, and have enough resources.
Footnotes
1 https://www.history.com/topics/inventions/transcontinental-railroad
2 https://www.bbc.com/news/science-environment-49349566
3https://www.npr.org/2023/03/09/1161921856/there-are-about-3-u-s-train-derailments-per-day-they-arent-usually-major-disaste
4 42 U.S.C. §§ 4321 et seq.
5 42 U.S.C. §7401 et seq. (1970)
6 33 U.S.C. §1251 et seq. (1972)
7 16 U.S.C. § 1531 et seq
8 42 U.S.C. § 9601 et seq
9 42 U.S.C. 8§ 9607 (a)(1)- (4) (2014)
10 42 U.S.C. 88 9607(b)(1) (3) (2014).
11 49 U.S.C. 5101 et seq.
12 610 F.ed 110 (210)
13 https://www.epa.gov/enforcement/superfund-unilateral-orders
14https://www.govinfo.gov/content/pkg/CFR-2012-title49-vol2/xml/CFR-2012-title49-vol2-subtitleB-chapI-subchapC.xml
15 https://www.kansascity.com/news/business/article269788322.html
16 https://www.kansascity.com/news/business/article269788322.html
17https://www.nbcnews.com/science/science-news/ohio-derailment-chemicals-spilled-impact-residents-rcna71561
18 http://extoxnet.orst.edu/tibs/bioaccum.htm
19 https://documents-dds-ny.un.org/doc/UNDOC/LTD/G21/270/15/PDF/G2127015.pdf?OpenElement
20 https://www.cnn.com/2023/02/17/health/ohio-derailment-rashes-health-impacts/index.html
21https://abcnews.go.com/US/15000-pounds-contaminated-soil-1-million-gallons-contaminated/story?id=97353152
22https://www.npr.org/2023/03/09/1161921856/there-are-about-3-u-s-train-derailments-per-day-they-arent-usually-major-disaste
23https://www.npr.org/2023/03/09/1161921856/there-are-about-3-u-s-train-derailments-per-day-they-arent-usually-major-disaste