It’s a sight no one wants to see, especially if they’re in a hurry: flashing red lights and a horizontal crossing arm that only mean one thing — a train is coming, and you’ll have to wait.
The experience of waiting at a blocked railroad-highway grade crossing is familiar to most Hoosiers. But that experience quickly turns to frustration when the traffic delay lasts more than a few minutes, holding up rush hour commutes and making motorists late for their appointments.
In an effort to alleviate that frustration, the Indiana General Assembly in 1972 enacted Indiana Code Section 8-6-7.5-1, which made it unlawful for trains to block grade crossings for more than 10 minutes unless there were circumstances beyond the railroad’s control and imposed minimum $200 fines on rail companies that exceeded the 10-minute limit. But last September, the Indiana Supreme Court ruled the blocked crossing statute is pre-empted by the federal Interstate Commerce Commission Termination Act, making the state law unenforceable.
Legislation filed in the 2019 General Assembly seeks another avenue of relief for Hoosier motorists held up by trains, especially motorists driving emergency responders.
If enacted, House Bill 1090 would require railroad companies to inform local law enforcement that a train will block a crossing for more than 10 minutes. Law enforcement, in turn, would inform first responders.
The crux of the bill is safety, and it wasn’t drafted in response to the Supreme Court decision, said Rep. Carolyn Jackson, the Democratic lawmaker from Hammond who authored the bill. Even so, the legislation raises an important legal question: is there anything states can do to control what happens at blocked crossings?
Pre-emption v. safety
The September 2018 Supreme Court ruling, State of Indiana v. Norfolk Southern Railway Company, 18S-IF-193, stemmed from the 23 citations Norfolk Southern collected between December 2014 and December 2015 related to its Allen County trainyard. The Allen Superior Court granted summary judgment for the rail company, finding pre-emption by both the ICCTA and the Federal Railroad Safety Act, but the Indiana Court of Appeals reversed because neither federal law explicitly pre-empted state blocked-crossing statutes.
The Supreme Court, however, did find explicit pre-emption by the ICCTA, pointing to language in the act holding that, “Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.” Because I.C. 8-6-7.5-1 was a remedy that managed or governed rail transportation — namely, regulating how long trains can stop, affecting train speeds and safety operations — explicit pre-emption applied, the court said.
While Jackson said HB 1090 was not drafted in direct response to the Norfolk Southern ruling, she has been told that trains blocking grade crossings have become a bigger problem since the decision came down. Her concern is that when those blockages occur, firetrucks and police cars are unable to get across the tracks, delaying potentially life-saving aid to emergency callers.
What’s more, firetrucks can’t easily make U-turns or maneuver through traffic to avoid blocked crossings, Jackson said. But with the provisions of HB 1090, the lawmaker said emergency responders could know in advance if a crossing will be obstructed and find another route to reach callers in need.
The issue with state regulation of railroad operations is that Congress has explicitly stated that railroad safety laws “shall be nationally uniform to the extent practicable,” said Andrew Tauber, a partner with Mayer Brown in Washington, D.C., who has experience handling pre-emption and railroad matters.
“If a railroad company was subject to differing requirements in each jurisdiction it passed through, it would be an untenable situation,” Tauber said.
For the same reason, Tauber said it’s possible that HB 1090, if passed, could face legal challenges outside of the pre-emption realm. If every state imposed notice requirements on blocked crossings, it’s likely that each of those requirements would be slightly different, making it difficult for rail companies to comply with notification rules as they cross state lines, he said.
What’s more, the proposed language of HB 1090 holds that railroad corporations “shall” notify law enforcement of obstructed crossings without any provision for unforeseen or uncontrollable circumstances, Tauber said. He pointed to the example of a fallen tree blocking railroad tracks and, thus, stopping a train.
“That would make it very hard to comply with the requirements of this law,” Tauber said.
Though Jackson did not consult with rail companies when drafting HB 1090, she did consult with police and fire departments who supported the language and believed rail companies would follow the rule. A representative for Norfolk Southern declined comment on 1090, while representatives from the Indiana Rail Road Company and the Association of American Railroads did not respond to multiple requests for comment on the legislation.
For Jackson, the chief issue with blocked crossings is safety. Even so, Tauber said he’s not sure how the bill might stand up to a federal pre-emption challenge, saying the result would likely be a closer call.
“With a notice requirement, the effects on railroad operations are obviously less direct,” he said. “It doesn’t prevent you from having a long train or a slow-moving train. All that’s required is that there be notice of that fact.”
Federal pre-emption challenges are common in the railroad industry, Tauber said, but he was not aware of any Congressional efforts to address complaints about long train delays. However, Rush noted in the Supreme Court ruling that the Surface Transportation Board has addressed blocked crossings through formal decisions.
For example, in response to complaints about long delays at a railroad crossing in Chicago, a June 2016 STB decision ordered CSX Transportation, Inc. to comply with a promise not to run trains on that line unless the trains could run without delay. CSX was also ordered to file monthly reports about blockages on the line with the STB.
HB 1090 has been assigned to the Roads and Transportation Committee, which, as of IL deadline, had not yet heard the bill.•