{"id":1010267,"date":"2023-03-01T17:04:27","date_gmt":"2023-03-01T17:04:27","guid":{"rendered":"https:\/\/jacobin.com\/2023\/03\/ny-kathy-hochul-rail-safety-laws-minimum-crew\/"},"modified":"2023-03-01T17:04:27","modified_gmt":"2023-03-01T17:04:27","slug":"kathy-hochul-says-shes-for-safer-railroads-right-after-vetoing-a-rail-safety-law","status":"publish","type":"post","link":"https:\/\/radiofree.asia\/2023\/03\/01\/kathy-hochul-says-shes-for-safer-railroads-right-after-vetoing-a-rail-safety-law\/","title":{"rendered":"Kathy Hochul Says She\u2019s for Safer Railroads \u2014 Right After Vetoing a Rail-Safety Law"},"content":{"rendered":"\n \n\n\n\n

In the wake of the East Palestine derailment, New York governor Kathy Hochul is calling for stricter federal regulations on hazmat trains. But last December, Hochul vetoed a proposed state law to improve rail safety by requiring minimum two-person train crews.<\/h3>\n\n\n
\n \n
\n Less than three months ago, New York governor Kathy Hochul vetoed a proposed two-person crew bill, which would have required most freight trains to be operated by at least a conductor and an engineer, a safety measure that both rail unions and bipartisan lawmakers supported. (Lev Radin \/ Pacific Press \/ LightRocket via Getty Images)\n <\/figcaption> \n<\/figure>\n\n\n\n\n \n

In the wake of the recent train derailment and toxic chemical release in East Palestine, Ohio, New York governor Kathy Hochul (D) called on<\/a> the federal government to enact stricter regulations on hazmat trains and said that safety is her top priority. Her transportation commissioner said that under Hochul\u2019s leadership, the state is \u201claser focused on safety in all modes of transportation, especially rail safety.\u201d<\/p>\n

Less than three months ago, Hochul struck a different tone with her veto pen. The proposed two-person crew bill \u2014 which the governor rejected on December 9, 2022\u00a0<\/strong>\u2014 would have required most freight trains to be operated by at least a conductor and an engineer, a safety measure that both rail unions and bipartisan lawmakers supported. Railroad companies and business groups opposed it.<\/p>\n

Two-person crew laws have passed in states around the country, and the federal government is currently considering its own, as rail companies have slashed their workforces by\u00a0nearly 30 percent<\/a>\u00a0in recent years and are\u00a0operating<\/a>\u00a0longer and heavier<\/a>\u00a0trains with\u00a0smaller crews<\/a>. Rail unions<\/a>,\u00a0federal<\/a>\u00a0regulators<\/a>,\u00a0and<\/a>\u00a0lawmakers<\/a>\u00a0<\/strong>have argued that the minimum staffing laws are essential for maintaining safety.<\/p>\n

\u201cThis bill was one part of a bigger look at the rail industry, and attempted to strengthen protections for both workers and the communities they travel through every day,\u201d Democratic senator Tim Kennedy, the Transportation Committee chair and the bill\u2019s state senate sponsor, told New York Focus. \u201cThe devastation that continues to unfold in East Palestine is the strongest form of evidence that rail safety needs to be prioritized, both in New York and across our country.\u201d<\/p>\n

Though New York\u2019s bill passed in May\u00a0<\/strong>with bipartisan support \u2014 approved by margins of forty-eight to thirteen in the state senate<\/a> and 121 to twenty-eight in the assembly<\/a>\u00a0\u2014\u00a0<\/strong>it met fierce opposition from the rail industry.\u00a0<\/strong>Business groups including Railroads of New York, the statewide industry group that represents CSX, Canadian National, Canadian Pacific, and Norfolk Southern, among others, reported lobbying on the bill in state filings reviewed by New York Focus.<\/p>\n

Hochul had said in her\u00a0veto memo<\/a>\u00a0that federal laws and pending rulemaking preempt state two-person crew legislation \u2014 an argument the railroads and their lobbying groups have used to oppose state staffing bills. But two-person crew laws have been enacted in other states without legal challenges, and legal experts disagree with Hochul\u2019s assessment of the preemption.<\/p>\n

Hochul\u2019s office pointed New York Focus to a court decision blocking an Illinois two-person crew law and to the federal government\u2019s rulemaking on the issue, but declined to provide on-record comment.<\/p>\n

James Louis, national vice president of the 57,000-member<\/a>\u00a0Brotherhood of Locomotive Engineers and Trainmen, told New York Focus that by citing the preemption issue in her veto memo, Hochul may be helping the industry fight crew size laws in other states.<\/p>\n

\u201cShe had an opportunity to improve rail safety and she let it go,\u201d said Louis, who lobbied for New York\u2019s legislation. \u201cIf she feels [safety is important], we could get that bill reintroduced and put it through \u2014 except now the railroads are using her argument that it\u2019s preempted.\u201d<\/p>\n\n \n\n \n \n \n

\u201cWe Have Been Able to Overcome Fierce Pressure From Railroad Corporation Lobbyists\u201d<\/h2>\n \n

A federal version of the two-person rule was\u00a0first introduced<\/a> by Barack Obama’s administration in 2016, in the wake of a series of high-profile crude oil train<\/a>\u00a0derailments. The proposed rulemaking noted that the Federal Railroad Administration (FRA) \u201chas studies showing the benefits of a second crewmember and other information detailing the potential safety benefits of multiple-person crews.\u201d<\/p>\n

Around that time, nearly every Class I freight railroad in the United States adopted a new scheduling system known as \u201cprecision scheduled railroading,\u201d an aggressive cost-cutting measure. Under the new system, trains operate on fixed schedules rather than being dispatched as needed, with the aim of reducing \u201cdwell time,\u201d or the time trains spend waiting in yards. In practice,\u00a0the system<\/a>\u00a0of constant movement has heralded longer trains, smaller workforces, and shorter safety inspections \u2014 or none at all.<\/p>\n

This is the model Norfolk Southern uses\u00a0<\/strong>in Ohio \u2014 and nationwide.\u00a0<\/strong>The railroad industry has argued the system does not impact safety, but the unions disagree.<\/p>\n

\u201cWhat I can tell you from our members on the ground is that they feel like safety has degraded,\u201d Greg Regan, president of the AFL-CIO\u2019s Transportation Trades Department,\u00a0told CBS News<\/a> about precision scheduled railroading. \u201cThere is a real impetus to go faster. And so we\u2019ve seen that pressure decrease the inspection times from about two minutes down to an average of thirty to forty-five seconds.\u201d<\/p>\n

Between 2016 and 2022, Class I railroads eliminated\u00a0an estimated 29 percent<\/a>\u00a0of their workforces. In turn, railroads are pushing to be able to operate ever-lengthening trains with\u00a0just a single<\/a>\u00a0engineer<\/a>. In the wake of the\u00a0recent derailment<\/a>\u00a0in East Palestine, Ohio, which preliminary investigations suggest was caused by the type of\u00a0mechanical issue<\/a>\u00a0that crew members don\u2019t have time to catch in inspections \u2014 or\u00a0are instructed<\/a>\u00a0to ignore \u2014 lawmakers and regulators have heightened their scrutiny on the push for\u00a0speed<\/a>\u00a0and\u00a0profits<\/a>\u00a0over safety<\/a>\u00a0in the railroad industry.<\/p>\n

When Donald Trump took office in January 2017, the Obama administration\u2019s two-man crew rule still wasn\u2019t finalized, and the Trump administration abandoned it. President Joe Biden\u2019s Department of Transportation has proposed its own version of a two-person crew rule, but has not moved to finalize it. In the meantime, numerous states have passed their own two-person crew laws \u2014 including California, Colorado, Illinois, Nevada, Washington, West Virginia, and Wisconsin.<\/p>\n

New York\u2019s two-person crew bill, first proposed in 2020 and passed in 2022, had wide support from state labor unions, including the New York State AFL-CIO, the Sheet Metal, Air, Rail Transportation Union (SMART) transportation division of New York<\/a>, the Brotherhood of Locomotive Engineers and Trainmen<\/a>; and the\u00a0International Brotherhood of Teamsters<\/a>.<\/p>\n

\u201cThis legislation is intended to protect not only railroad workers, but the general public as well,\u201d said Brotherhood of Locomotive Engineers and Trainmen then national president Dennis R. Pierce in a June 2022 statement<\/a>. \u201cThrough your strong grassroots support, we have been able to overcome fierce pressure from railroad corporation lobbyists. Please contact the governor and help us get this bill across the finish line.\u201d<\/p>\n

Railroads of New York, the industry group that includes Norfolk Southern, wrote in an\u00a0August 2022 memo<\/a>\u00a0that it \u201cstrongly opposes\u201d the legislation, claiming \u201cnumerous studies have shown that mandating at least two crew members would have no impact on the safety of railroad operations.\u201d<\/p>\n

The group wrote that it sought tech-based safety solutions, and \u201cimposing increased crew size mandates would impede these technological advances as freight rail companies would be less inclined to invest in new technologies that could not be maximized in the presence of such increased regulation.\u201d<\/p>\n

Scott Wigger, Railroads of New York\u2019s executive director, told New York Focus that the railroads should be regulated at the federal level. \u201cThe rail network, it\u2019s just national in nature, it doesn\u2019t stop at state boundaries,\u201d Wigger said. \u201cAt the end of the day, you just can\u2019t have different states with different laws. That\u2019s why we always feel that the federal level \u2014 the FRA \u2014 they\u2019re the ones who are properly empowered to make these laws.\u201d<\/p>\n

When asked whether the group supported the federal two-person crew rule, Wigger said that the group only weighs in on state-level laws and regulations.<\/p>\n

Corporate lobbying groups including the Capital Region Chamber Of Commerce, the National Federation of Independent Business, the New York State Economic Development Council, and the Business Council also reported lobbying on the legislation.<\/p>\n

\u201cYears ago, it was commonplace to have five employees on trains,\u201d said the Business Council, which was registered to lobby on the legislation, in a\u00a0statement<\/a>. Citing technological advancements that \u201cmodernized\u201d staffing and \u201celiminated redundancy,\u201d the council argued, \u201cAttempts to require two-person crews ignore the successful use of single ones through the successful deployment of technology.\u201d<\/p>\n\n \n \n \n

Federal Preemption of Crew Laws<\/h2>\n \n

In December, when Hochul vetoed the two-person rule with little fanfare \u2014 it was\u00a0one of fourteen bills<\/a>\u00a0vetoed that day \u2014 she wrote that the legislation was preempted by federal law and pending federal rulemaking.<\/p>\n

While Hochul\u2019s veto memo did not say which federal law preempted the legislation, an office spokesperson directed New York Focus to a 2020 Illinois\u00a0court decision<\/a> that blocked a two-person crew law there.<\/p>\n

The\u00a0lawsuit<\/a>\u00a0was based on a 2019 regulation issued by Trump, which has since been repealed. When Trump\u2019s Federal Railroad Administration withdrew the Obama-era two-person rule, it issued a notice\u00a0announcing<\/a>\u00a0that the withdrawal would \u201cpreempt all state laws attempting to regulate train crew staffing.\u201d<\/p>\n

Illinois\u00a0passed<\/a>\u00a0its 2019 crew size bill in spite of the Trump order, joining nine other states that then had two-person crew laws on the books. A regional railroad and two railroad lobbying groups\u00a0sued<\/a>\u00a0to block the Illinois law, arguing that federal rules \u2014 including the Trump order \u2014 preempted it. A federal district court struck the law down, providing the opinion Hochul\u2019s office cited.<\/p>\n

But other states had filed suits against Trump\u2019s preemption rule, and a federal circuit court struck the order down in\u00a0February 2021<\/a>. The Illinois ruling that Hochul\u2019s office cited to New York Focus had lost its legal basis. (Hochul\u2019s office did not respond to a follow-up question noting the change.)<\/p>\n

The railroad and rail lobbying groups sued again, reaching farther back than the Trump rule to argue for federal preemption. The second time, the plaintiffs\u00a0successfully based<\/a>\u00a0their preemption claim on the 1973 Regional Rail Reorganization Act, which authorized the creation of Conrail, a federal publicly owned railroad, and preempted state regulations in places where Conrail operated.<\/p>\n

While the rail groups won that case, others have argued that the 1973 law is obsolete \u2014 Conrail\u00a0was split up<\/a>\u00a0in 1999. The FRA\u00a0noted in a 2011<\/a>\u00a0report that the preemption provision\u2019s \u201cnarrow and specifically defined purpose\u201d had been met, and the provision should be repealed. Larry Mann, one of the principal drafters of the earlier 1970 Federal Railroad Safety Act,\u00a0wrote in 2020 that<\/a>\u00a0the Conrail law \u201cis unconstitutionally vague and lacks any rational basis.\u201d<\/p>\n

In Maryland, where former Republican governor Larry Hogan vetoed<\/a>\u00a0a two-person crew law in 2019, the SMART union\u00a0echoed Mann\u2019s argument<\/a>\u00a0during an attempt to revive the bill in 2021. The Maryland attorney general\u2019s office concurred in a letter stating that the bill \u201cappears to neither violate, nor is preempted by, federal law as it relates to crew member requirements for trains used in connection with the movement of freight in the State.\u201d<\/p>\n

At\u00a0least five states<\/a>\u00a0remain with laws governing train crew size. A separate federal circuit court\u00a0has upheld<\/a>\u00a0a Wisconsin crew size law.<\/p>\n

For the time being, Hochul\u2019s office is deferring to the supposed federal preemption with the rulemaking process still ongoing, now under a third president. Mann told New York Focus that citing a proposed rule as preempting state law \u201cmakes no sense. The FRA has been considering crew size regulation for more than six years, and still there is no final rule promulgated.\u201d<\/p>\n

In his view, waiting for federal rulemaking in this manner allows industry to oppose state laws on the basis that a federal proposal is being considered \u2014 and lacks legal backing. \u201cTo carry NY\u2019s view to the fullest extent would mean an agency could simply issue a notice that it is considering a regulation, and a state would be preempted,\u201d Mann said. \u201cThe agency would not even need to issue a final rule. Such a conclusion would create complete turmoil in administrative law and is not the law.\u201d<\/p>\n

\u201cAfter having passed both houses, I was certainly disappointed to see [the two-person crew rule] vetoed,\u201d said Kennedy, the senate sponsor, \u201cbut that doesn\u2019t mean our work is finished \u2014 in fact, far from it.\u201d<\/p>\n

In the wake of Hochul\u2019s veto, Louis, of the Brotherhood of Locomotive Engineers and Trainmen, said unions have been left out in the cold.<\/p>\n

\u201cShe has been totally silent with labor since she vetoed this bill,\u201d Louis told New York Focus. \u201cNo conversation, no nothing. I have known Kathy Hochul since she was a county clerk. Nothing from her. I expected better.\u201d<\/p>\n\n \n \n \n\n \n \n

This article was published in partnership with\u00a0New York Focus, a nonprofit newsroom investigating power in the Empire State. Sign up for their newsletter\u00a0here<\/a>.<\/p>\n

You can subscribe to David Sirota\u2019s investigative journalism project, the\u00a0Lever<\/i>,\u00a0here<\/a>.<\/p>\n\n\n\n

This post was originally published on Jacobin<\/a>. <\/p>","protected":false},"excerpt":{"rendered":"

In the wake of the recent train derailment and toxic chemical release in East Palestine, Ohio, New York governor Kathy Hochul (D) called on the federal government to enact stricter regulations on hazmat trains and said that safety is her top priority. Her transportation commissioner said that under Hochul\u2019s leadership, the state is \u201claser focused [\u2026]<\/p>\n","protected":false},"author":1641,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"_links":{"self":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/1010267"}],"collection":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/users\/1641"}],"replies":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/comments?post=1010267"}],"version-history":[{"count":1,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/1010267\/revisions"}],"predecessor-version":[{"id":1010268,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/1010267\/revisions\/1010268"}],"wp:attachment":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/media?parent=1010267"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/categories?post=1010267"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/tags?post=1010267"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}