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The Debate Over Requiring Two-Person Train Crews
The train derailment in East Palestine, Ohio, earlier this year shines a new light on the dangers of precision scheduled railroading or PSR. This corporate philosophy increased train length but decreased the safety of communities, operations, and employees. The Court overseeing the many cases arising from the derailment has appointed Schlichter Bogard to the steering committee tasked with litigating all the claims. Many firms from throughout the country applied for a position on the steering committee, and the Judge evaluating these applications selected Schlichter Bogard based on its successful track record of taking on railroads on behalf of workers.
In response the derailment and its widespread harm, Ohio has enacted legislation that mandates two-person train crews. But the railroad industry has sued to block enforcement of this requirement, arguing that federal law “preempts” or supersedes state railroad laws. In short, it claims that because the Federal Railroad Administration (FRA) has exclusive authority to enact laws governing interstate railroad operations, no state can enact a law where the FRA has authority to act, even if it has not done so. Railroads also claim that a mandate of two-person crews is simply unnecessary and the extra cost would cost too much, thereby reducing their record earnings.
Surprisingly, this preemption argument has worked in the past. Several other states, including California, Colorado, Illinois, Nevada, and Washington, previously enacted similar laws. But Illinois and Wisconsin federal courts ruled that federal law preempted the states’ train crew size regulation. A similar ruling here could hurt railroad safety and reduce the number of railroad jobs.
However, if the FRA or the U.S. Congress enacts a regulation mandating two-person train crews, then the preemption argument cannot help the railroads in courts. In 2016, the FRA administrator appointed by the Obama administration proposed a regulation that generally would have required two-person railroad crews. But in 2019, the Trump administration withdrew the proposed rule and instead proposed a new law that would impose a maximum of one-person train crews. Fortunately, a court found that proposed rule invalid. Then, in 2022, the Biden Administration again proposed a two-person crew for most operations. Separately, legislation adopted by both political parties in the U.S. Senate, the Rail Safety Act of 2023, would also require two-person train crews as well as mandatory hot box detectors over every track carrying hazardous materials. This law has widespread support among rail worker unions. However, that bill has so far stalled in the Republican-controlled U.S. House of Representatives, and it remains to be seen what if any parts may be adopted and made into law. If that happens, or the FRA adopts its current proposed rule, then the lawsuit over the recent Ohio law may become moot.
Railroaders should pay special attention to these legal conflicts because the survival of the two-person crew law directly affects railroad safety and employment security. In addition, the FRA’s shifting position on train crew size and railroad safety also serves as a reminder that who we elect as President and to represent us at the federal and state levels can significantly affect laws promoting rail safety.
Article by Matt Strauser, Associate Attorney
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