Railroads Seek To Avoid A Patchwork Quilt Of Regulatory Requirements

Highlights

• The Clean Water Act imposes permitting obligations on "point sources."
• Should those obligations apply to railroad cars, which move freely from state to state?
• The U.S. railroad industry has asked the Surface Transportation Board to take up the question and to rule that any CWA permitting obligations are preempted by the ICC Termination Act.

Imagine that every state along the interstate highway network were legally empowered to establish its own individual environmental standards for motor carriers when operating in that state. That's a good analogy for a specter haunting the freight rail industry today following a district court decision in 2016. A U.S. District Court in Washington State held that the federal Clean Water Act prohibited the "discharge" of any quantity of coal dust from a rail car into a waterway. That case was brought by the Sierra Club against BNSF Railway, but all legal issues were not resolved. Sierra Club v. BNSF Ry. Co., Do