Federal Court Upholds District Law on Toxic Tank Cars
Posted Nov. 17, 2008 / Posted by: admin
Fred Millar, Ph.D. 703-979-9191
Dick Bell, Media Director, 202-222-0742
In a strongly worded opinion supporting public safety, Judge Emmet G. Sullivan today upheld the DC Council's ordinance that mandates a re-routing of through shipments of four types of ultra hazardous chemical ('hazmat') cargoes by truck and rail around DC and onto alternative, non-target routes.
"Judge Sullivan has sent a loud and clear message to President Bush and the Department of Homeland Security," said Brent Blackwelder, president of Friends of the Earth. "The judge ruled that protecting America from weapons of mass destruction is the responsibility of all levels of government. And, if the president fails to act to protect our cities from hazardous rail cargoes, then local governments have the power to act instead. Kathy Patterson and the rest of the D.C. Council have blazed a trail for the rest of the country."
"This ruling will encourage legislators to act in some of the other 57 high Threat Target Cities (as identified the U.S. Department of Homeland Security) that are currently unprotected from hazmat risks." said Fred Millar of Friends of the Earth, who provided expert testimony in the case. "Judge Sullivan's opinion indicates that sensible local and state homeland security legislation which 'fills a gap' in the national scheme of homeland security protection will be upheld, especially if the economic costs and inconvenience burdens on interstate commerce do not outweigh the massive human and economic costs of a successful terrorist attack."
"Until" is the key word in the ruling. Although all parties agree that a protective national security system would be optimal, Judge Sullivan found that the explicit "partnership" provisions in federal law allow protective local and state regulation "UNTIL" the federal government has acted.
Secrecy was a key and contentious issue in the court hearings. Contrary to a top-level Bush administration official's statement that the federal government had done nothing to eliminate a huge hazmat terrorism threat to DC, CSXT and the government claimed that CSXT's security plan did protect the nation's capital. Judge Sullivan asked to see the plan in order to evaluate its adequacy. No one in the courtroom, representing various governments and interested parties, had ever seen it. The judge tried to broker a settlement that would have involved suspension of enforcement of the D.C. law, re-routing on both CSXT lines through the city, and sharing CSXT's security plan with lawyers representing the District. CSXT and the U.S. government refused.
Judge Sullivan ruled against the Bush administration and the railroads on all four counts, and will continue to weigh the substantive merits of the case. Friends of the Earth expects that appeals to higher courts will be filed immediately by the railroads and the Bush administration.
A copy of the decision is at: http://www.dcd.uscourts.gov/opinions/district-court-2005.html
For more information, visit http://www.dccouncil.washington.dc
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