hazmat rail ban could have ripple effect

It might look like a purely local dispute, but the legal battle raging between a railroad and the Washington, D.C., city council could have broad implications for hazmat shippers nationwide. Rail carrier CSX has taken the District of Columbia to court over the city council's attempts to ban hazardous materials shipments through the city. Although the matter remains in litigation, other cities—Baltimore, Chicago, Cleveland and Las Vegas, to name a few—are said to be considering similar measures.

The contretemps began in February of last year when the Washington, D.C., city council adopted a measure temporarily prohibiting shipments of certain hazardous materials from coming within a 2.2-mile radius of the Capitol. Citing the dangers of, say, a railcar loaded with chlorine if it were targeted by terrorists, city council members barred carriers from bringing large shipments of explosives and flammable and poisonous gases into the city without a special permit.

Though the measure does not specifically target railroads, it effectively bans rail shipments of hazardous materials through the city, forcing carriers like CSX to divert freight to less-populated areas.

CSX responded by filing a lawsuit against the District of Columbia, arguing that the city council had overstepped its jurisdiction and was interfering with both interstate commerce and the federal regulation of hazmat shipments. The railroad argued that the mandatory hazmat rerouting would pose a hardship to its operations and do nothing to increase security. Rerouting does not lessen or eliminate any potential threat, said CSX, it simply increases and transfers that risk elsewhere on the rail network. CSX also worries that the move could set off a wave of copycat bans, resulting in a patchwork of local ordinances that would increase transit times, distances and costs for hazmat shipments.

Transportation and hazardous materials professionals are watching the case closely because it could set a precedent for jurisdictions across the country to try to reroute shipments of chemicals—both by rail and by road.

"It's really the precedental value that is important here," says Lawrence Bierlein, a partner with McCarthy, Sweeney & Harkaway, P.C., a Washington, D.C., law firm that specializes in hazardous materials transportation. "Other cities are watching. The ripple effect here could be huge. There is a lot more at stake here than just one city and the consideration on Congress sitting here. Even if the court finds for the city, I'm sure it would get appealed immediately."

John Auger agrees that this is a trend to watch. "Since 9/11, there has been a move afoot by local governments to try to control the routing of hazardous materials," says Auger, chairman of third-party service provider Brook Warehousing Systems and the head of the International Warehouse Logistics Association's Council on Chemical Logistics Providers. "D.C. is just one of many of the jurisdictions trying to do this. There is a pushback by industry and by the federal government to try to control that effort because it would lead to a very complex process of shipping materials across the country if every jurisdiction could change the rules."

As for the probable outcome? "I'd be surprised if [the court] ruled in favor of the city, but who knows," says Bierlein. "It's a political issue as much as a legal one. Everyone will be happy to have this over with."