(CN) — Oklahoma asked a 10th Circuit panel on Wednesday to revive a law that banned stopped trains from blocking crossings for more than 20 minutes.
The Sooner State passed the Blocked Crossing Statute in 2019 after stopped trains prevented EMTs and firefighters from responding to calls and encouraged pedestrians to unsafely hop between parked cars.
BNSF Railway Company sued the cities of Edmond and Davis, Oklahoma, after being fined for violations, saying federal law preempted the state from regulating train operations. A federal judge sided with the train operator in November 2020.
The state of Oklahoma appealed, claiming the Federal Railroad Safety Act allows the state to regulate issues of railroad safety.
“If all the other courts have held that the Interstate Commerce Commission Termination Act preempts blocked crossing laws, why shouldn’t we be taking those decisions seriously?” asked U.S. Circuit Judge Gregory Phillips, a Barack Obama appointee, at a hearing Wednesday. “Are you just saying they’re all wrong?”
Oklahoma Assistant Solicitor General Bryan Cleveland pointed to a circuit split on interpretation.
“I’m saying that the statutory interpretation by other circuits is different and that they all rely on a finding that these two statutes are incompatible,” Cleveland said, referring to the Federal Railroad Safety Act and the Interstate Commerce Commission Termination Act.
U.S. Circuit Judge Joel Carson, a Donald Trump appointee, asked whether blocked crossings are an issue of safety or operations.
“What do you do when you run headlong into a situation like this, maybe blocked crossings do have an impact on safety issues, but they also impact operations,” Carson asked. “One of them is going to have to give at some point.”
Cleveland suggested companies like BNSF should build the infrastructure needed to support longer trains without blocking community traffic.
“The Federal Railroad Safety Act specifies that railroad safety reaches every area of operations,” Cleveland said. “Which means inevitably safety issues do affect operations. There’s a narrow place here that Congress has carved out for state action.”
Representing BNSF, attorney Richard Love of the Tulsa firm Conner & Winters, said federal law clearly preempts states from regulating railroad crossings.
“I’m putting rocks over rabbit holes today,” Love said, adding that state train regulations must pass a simple test: “One, what does the state seek to regulate, and number two, does the proposed regulation burden rail transportation?”
Oklahoma’s law asked operators to run trains in a way that minimizes the obstruction of emergency vehicles, a requirement Love said “was designed to deter railroad operations with the stated purpose of the safety and welfare of the people.”
“This goes toward Judge Carson’s comments earlier, this is related toward the welfare of the people in the communities, it is about traffic congestion,” Love said. “It is not about traditional safety issues governed by the Federal Railroad Safety Act and the Federal Railroad Administration.”
U.S. Circuit Judge Tim Matheson Jr., also an Obama appointee, tested Oklahoma’s argument that railroad crossings do present issues of safety.
“If from the state’s perspective trains create a safety problem when they block crossings, for example by impeding emergency responders, why aren’t the blocked crossings therefore related to railroad safety under the Federal Railroad Safety Act?” Matheson asked.
Love reiterated Carson’s earlier comment about the inevitable tension between railroad safety and operations.
“Like Judge Carson noted, there are some gray areas and I think there is a balancing test that the courts have engaged in,” Love said.
The hearing was broadcast remotely via YouTube. The panel did not indicate when or how it will decide the case.
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