AAR Sues Ohio Over Crew Size Legislation
Written by William C. Vantuono, Editor-in-Chief
Ohio Attorney General David Yost
The Association of American Railroads filed suit in the U.S. District Court for the Southern District of Ohio on June 30 seeking to block the state’s two-person train crew mandate, which AAR contends doesn’t permit exceptions and is unconstitutional because it contradicts the 1995 Interstate Commerce Commission Termination Act (ICCTA).
In Association of American Railroads v. Yost et al., case number 2:23-cv-02096 (downloadable below), AAR is targeting a crew size provision included in a $13.5 billion transportation budget bill (House Bill 23) Ohio Republican Gov. Mike DeWine signed into law in March. The provision, codified as Ohio Revised Code Section 4999.09, says “a train or light engine used in connection with the movement of freight shall have a crew that consists of at least two individuals” and that “no superintendent, trainmaster or other employee of a railroad shall order or otherwise require a train or light engine used in connection with the movement of freight to be operated unless it has a crew that consists of at least two individuals.”
Defendants are Ohio Attorney General David Yost, and Ohio Public Utilities Commissioners Jenifer French, Daniel R. Conway, Dennis D. Peters, Lawrence K. Freiedman and John D. Williams.
“When the crew size law takes effect, it will forbid freight railroads from operating with a single crew member,” AAR said. “Under the law, it does not matter whether operating with a single crew member is just as safe as—or even safer than—operating with multiple crew members, whether a railroad operates with a single crew member in adjacent states, or even whether the railroad has a collective bargaining agreement permitting single-person operations. The crew size law thus imposes the balkanized system of transportation regulations that ICCTA was designed to prevent.”
In its Preliminary Statement, AAR said (edited):
- Congress has exercised broad regulatory authority over rail transportation for well over a century. During that time, Congress and federal regulatory agencies, including the Federal Railroad Administration (“FRA”) and the Surface Transportation Board (“STB”), have allowed railroads to set minimum crew sizes through collective bargaining, rather than imposing such requirements by law.
- Congress has expressly prohibited Ohio from establishing a minimum crew size. In 1973, Congress enacted the Regional Rail Reorganization Act (“3R Act”) to address a railway crisis in the Northeast and Midwest. “The 3R Act was designed to reorganize the railroads in those regions, bringing them under the control of a new government corporation [Conrail] that would create a plan to turn them into an economically viable railway system.”
- In the Northeast Rail Service Act of 1981, Congress amended Section 711 of the 3R Act to include an express preemption clause. As amended, Section 711 of the 3R Act provides that: No State may adopt or continue in force any law, rule, regulation, order, or standard requiring the Corporation [Conrail] to employ any specified number of persons to perform any particular task, function, or operation, or requiring the Corporation to pay protective benefits to employees, and no State in the Region may adopt or continue in force any such law, rule, regulation, order, or standard with respect to any railroad in the Region.
- Ohio is a “State in the Region,” as defined by Section 102 of the 3R Act.
- The plain text of the 3R Act thus prohibits Ohio from adopting any law requiring any railroad in the State to employ any specified number of persons to perform any particular task, function, or operation.
- Nonetheless, in March 2023, Ohio enacted Ohio Rev. Code § 4999.09 (effective June 30, 2023) (the “Crew Size Law”), which requires that all freight railroads operate in almost all circumstances with at least two crew members.
- The Crew Size Law mandates that “[a] train or light engine used in connection with the movement of freight shall have a crew that consists of at least two individuals.” Ohio Rev. Code § 4999.09(B). It provides exceptions only for “hostler service or utility employees.” When the Crew Size Law takes effect on June 30, 2023, Defendants Jenifer French (Chair), Daniel R. Conway, Dennis P. Deters, Lawrence K. Friedeman, and John Williams, as Commissioners of the Ohio Public Utilities Commission, will have power to enforce the Crew Size Law by imposing civil penalties, which Defendant Dave Yost, as the Ohio Attorney General, will have the power to collect.
- “The [3R] Act defined a region that includes [Ohio], and set out certain restrictions on how states in that region can regulate railroads. [Ohio] must abide by those restrictions, and in passing the Crew Size Law, it failed to do so.” “[Ohio] wants to mandate a crew size of two to perform the task, function or operation of moving freight with a train or light engine; this is exactly what the 3R Act prohibits.” As a result, the 3R Act preempts the Crew Size Law. (Editor’s Note: AAR cited here Regional Indiana Rail Road (INRD), which successfully challenged in federal court the Illinois crew size mandate: Indiana Rail Road v. Illinois Commerce Commission, 576 F. Supp. 3d 571.)
- Alternatively, the Crew Size Law is preempted by the ICC Termination Act (“ICCTA”), which grants exclusive authority to the STB to regulate matters falling within its broad scope.
- The Crew Size Law is also preempted in part by the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20106.
- FRA has carefully considered the need for multi-person crews for two specific types of operations: (1) “helper service,” or using a locomotive to assist another train that has incurred mechanical failure or lacks the power to traverse difficult terrain; and (2) “remote control operations,” or using a radio transmitter and receiver system to operate a locomotive by a person not physically located at the controls in the locomotive cab.
- With respect to each, FRA has determined that no minimum crew-size regulation is necessary or appropriate.
- Under FRSA, FRA’s determination that no such regulation is appropriate preempts any state law purporting to establish such a requirement. Accordingly, to the extent that the Crew Size Law requires two-person crews for helper service or remote control operations, it is preempted.
- Plaintiff seeks a declaration that the Crew Size Law is preempted in full or in part.
- Plaintiff also seeks an injunction preventing Defendants from enforcing the Crew Size Law, [which] cannot be squared with these federal laws or with Congress’ extensive control over railroad operations. If not enjoined, the Crew Size Law would subject Plaintiff’s members to immediate and threatened injury, because they would be put to the untenable choice of defying the Crew Size Law and subjecting themselves to civil penalties or complying with the Law and giving up their right under federal law to operate safely and efficiently, unencumbered by minimum-crew-size requirements.
AAR is represented by Thomas H. Dupree Jr. and Jacob T. Spencer of Gibson Dunn & Crutcher LLP and Jonathan N. Olivito and Amy D. Vogel of Taft Stettinius & Hollister LLP.
