A proposal to fine companies transporting coal and crude oil by rail through downtown Spokane is back on the table, this time targeting the shippers instead of the railroads.
Spokane City Councilman Breean Beggs crafted the proposed law after failing to get a commitment from the region’s major railroads to support local efforts at setting safety standards for freight trains. Beggs hopes to pressure the federal government to adopt more stringent safety standards for oil and coal shipments.
Representatives for BNSF and Union Pacific said this week the new ordinance still seeks to wrest regulatory control from Congress and would not withstand a legal challenge.
“This is pre-empted by federal law,” said Courtney Wallace, a spokeswoman for BNSF. “It’s still regulating railroad traffic.”
But Beggs said the proposed law was written to appease the railroads, who claimed an unsuccessful attempt to put the safety issue before voters this year would have punished the wrong people. The original law levied a fine of up to $261 per car on the railroads, while the new version goes after the owners of the rail cars, which are increasingly the oil and coal companies themselves.
“They said, you need to target it at the folks that can actually change the car regulations,” Beggs said. The railroads indicated in meetings their main safety focus was on the condition of tracks, Beggs said.
Beggs said he hadn’t spoken with any oil or coal interests before drafting the ordinance, which was delivered to the city clerk’s office Monday. A representative for the American Coal Council declined to comment on the ordinance, and a spokesman for the American Petroleum Institute did not respond to a request for comment.
The initiative will require close to 2,700 signatures of voters in Spokane to make the November 2017 ballot. Beggs and other citizen supporters would need to collect the necessary signatures by July 7, according to the Secretary of State’s Office.
Beggs continued to dismiss claims the ordinance infringes on the authority of Congress and the Department of Transportation to regulate interstate commerce. He points to a case, decided in the Ninth Circuit Court of Appeals in June 2003, that grants local governments the ability to establish safety standards for railroads that address a “local safety hazard.” Beggs argues the trains represent a threat to Spokane’s aquifer, which provides drinking water for hundreds of thousands of residents.
“This is different than other bans,” Beggs said. “This uses language from the federal statute.”
But the railroads, which objected to the previous ordinance, say they’re legally obligated to pull cars that meet Department of Transportation safety standards under what’s known as the federal “common carrier” provision.
“Shipping crude by rail is the safest mode of land transportation,” said Justin Jacobs, a spokesman for the Union Pacific railroad in response to a request for comment on Beggs’ ordinance. “Railroads deliver crude oil safely 99.99 percent of the time.”
The ordinance bans oil that is transported at a pressure greater than 8 pounds per square inch and with a flashpoint below 73 degrees Fahrenheit. Oil that has been treated to increase the flashpoint and decrease the pressure would not be subject to fines. Covered coal cars would also be exempt from fines. The proposed law has a sunset date in 2020 to determine if fines are still needed.
Beggs said he expected a legal challenge if the initiative is successful. But he said the cost of mounting a successful legal defense would be less than the costs of cleaning up after a disastrous derailment.
“Compared to the catastrophe that would happen, I think it makes sense,” he said.
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