Court dismisses chemical industry rail safety suit

The U.S. Court of Appeals in Washington, D.C. has turned aside a challenge by chemical makers to a Federal Railroad Administration regulation involving the safety of chemical shipments and by rail, including in relationship to implementing Positive Train Control (PTC).

The decision on Case No. 12-1298, Chlorine Institute, Inc., Petitioner, v. Federal Railroad Administration, Et al, Respondents, was issued Tuesday, June 11, 2013.

Arlington, Va.-based Chlorine Institute (CI) asserts that the FRA regulations, issued last year, would hamper chemical makers’ ability to ship product by rail. “But the described impact is — at most — speculative,” Judge Karen LeCraft Henderson wrote for the three-person panel.

CI, the court ruled, “has failed this part of the ‘ripeness’ test because it has not demonstrated that it faces an imminent or certainly impending injury.” It continued, “To establish such an injury, the Institute must show that at least one of its members ‘is under threat of suffering “injury in fact” that is concrete and particularized [and] the threat must be actual and imminent, not conjectural or hypothetical.'”

The court acknowledged, “The Institute claims its members are ‘directly injured by FRA’s policy decision to no longer rely upon traffic movements during 2008 as the basis for PTC Implementation Plans . . . and by the elimination of the two-part test and the resulting ability of the railroads to restrict or eliminate chlorine transportation by rail,” but saw no justification for the claim based on current circumstances.

Despite the ruling, Chlorine Institute President Frank Reiner categorized the decision as advantageous to shippers in the long run.

In a statement following the decision, Reiner said, “In the Chlorine Institute’s view, today’s decision affirms the right of shippers to move products safely.  The case was dismissed solely because no shipper has yet been harmed by the Federal Railroad Administration’s proposed positive train control (PTC) implementation plan, not because the court disputed the rights of shippers.
 
“Everyone agrees PTC is a technology that promotes safer rail service,” Reiner said. “The Court’s decision goes a long way toward preserving shippers’ ability to safely ship chlorine by rail where it is needed.  Moreover, the decision invites the Institute to bring further action after the PTC Implementation Plan advances if actual injury occurs to shippers or a more imminent threat of harm arises.”