D.C. HazMat Ban Further Enjoined by Appellate Court

Date: May 04, 2005

Update: D.C. HazMat Ban Further Enjoined by Appellate Court (05/04/05)

The United States Court of Appeals for the District of Columbia Circuit has directed the federal district court to enter a preliminary injunction against the District of Columbia from enforcing its routing ban on certain classes of hazardous materials traveling with 2.2 miles of the U.S. Capitol. Previously, the appellate court had issued a temporary injunction following the district court's denial of an injunction.

This decision is not an adjudication on the merits of the challenge to the D.C. law. Rather, the appellate court found that CSX has a substantial likelihood of prevailing on the merits of its claim that the D.C. law is preempted by the Federal Railroad Safety Act. The court did not address whether an injunction also would be justified on any of three other grounds advanced by CSX, including the Commerce Clause of the Constitution.

The case now returns to the district court for a full hearing on the merits. Alternatively, the District could ask the full court of appeals to overturn the decision of its 3-judge panel. Given the unanimous nature of the appellate decision, and the strong findings of the likelihood of success on the merits, we believe that either of these routes will prove futile. Inasmuch as the underlying justification advanced by D.C. in support of its routing ban was that the DOT regulatory requirements are inadequate to protect against the risk of hazardous materials moving through the District, D.C. has the option of seeking remedial measures from either DOT in the nature of a change of its regulations or from Congress. In our view, these avenues of relief also are not promising. It now becomes a political question as to whether the District will pursue any of these avenues of relief in order to claim it has exhausted its avenues of relief.

Update: U.S. Court of Appeals Temporarily Stays D.C. Routing Ban on Hazardous Material (4/20/05)

The United States Court of Appeals for the District of Columbia Circuit temporarily stayed the D.C. routing ban on hazardous materials from taking effect today, April 20, 2005. The stay does not constitute a decision on the merits, and is intended to maintain the status quo until the court can receive and consider responsive pleadings from D.C. and its supporters. The court placed this proceeding on a fast track. A further decision on whether to continue the injunction could come as early as next week. Apparently, the Commerce Clause issues resonated with the appellate court more strongly than with the District Court.

Federal Court in D.C. Refuses to Enjoin D.C. Routing Ban on Hazardous Materials (4/19/05)

In a 76 page decision issued today, Judge Sullivan of the U.S. District Court for the District of Columbia denied the request of CSXT for a preliminary injunction against the routing ban imposed by D.C. on certain hazardous materials (toxic-by-inhalation) moving with 2.2 miles of the U.S. Capitol building. The judge also denied motions by CSXT and the Department of Justice to enforce the March 14 order of the Surface Transportation Board finding the D.C. ordinance was preempted by the ICC Termination Act. Finally, the judge, "in anticipation of the filing of any Motion to Stay Enforcement of the Court's order" pending appeal, denied any stay motions which may be filed.

As requested by the parties, the judge treated the issue as a pure matter of law, based on federal statutes and the Commerce Clause of the U.S. Constitution. The case may, if application of the routing ban is not enjoined by an appellate court, proceed to a hearing on the merits of the ban. In the meantime, the routing ban is scheduled to take effect April 20; however, CSXT already has voluntarily re-routed shipments around D.C. On the other hand, a number of jurisdictions are waiting in the wings to adopt similar measures.

Strongly influencing the judge's decision was the fact that the routing ban is temporary--as emergency legislation it has a maximum of a 90-day life and extension is subject to congressional review, and was enacted in the absence of a federal plan to address HazMat shipments through the District. The latter was a critical element in the judge's decision. In the hearing on the requests for injunction, the judge displayed hostility toward the position of CSXT. He rejected CSXT's arguments about the cost of re-routing, saying the cost would be passed along to the railroad's customers, and that CSXT faced the loss of business to other modes of transportation, commenting that forcing CSXT to compete may be good for America. (How well this judge understands the railroad business!) The judge offered to broker a deal between the city and CSXT, and publicly called upon President Bush to instruct the Justice Department to share sensitive security information with the city's representatives so they could engage in meaningful discussions. CSXT and DOJ both rejected the judge's offer and requested a decision on the pure legal issues.

This case is far from over. It certainly is headed to the Court of Appeals, and likely to the Supreme Court. It is entirely possible that a trial on the merits could be conducted; and if not enjoined, it is likely other jurisdictions will follow suit.

For more information on this article, please contact Marty Bercovici at 202-434-4144 or bercovici@khlaw.com.