EPA Asks STB to Resolve Preemption Question

by Nossaman LLP
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The Administrator of Region IX of the Environmental Protection Agency (EPA) has petitioned the Surface Transportation Board (STB) for a declaratory order to address whether locomotive idling rules issued by the South Coast Air Quality Management District (SCAQMD) would be preempted by the Interstate Commerce Commission Termination Act (ICCTA). 

SCAQMD has proposed two rules for adoption into California's State Implementation Plan (SIP) of the Clean Air Act (CAA), which would govern locomotives operating in Southern California.  The rules call for railroads to record locomotive idling events that last thirty minutes or more, and (in certain circumstances) limit the time that the locomotives may be left idling to thirty minutes when the locomotive is unattended.

The railroads challenged SCAQMD's proposed rules in federal court in California when they were originally enacted in 2006, arguing the STB preempted SCAQMD's enforcement of the rules.  The District Court agreed and issued an injunction preventing the enforcement of the rules.  On appeal, the Ninth Circuit affirmed.1

SCAQMD then sought to have its rules adopted into the California SIP by the EPA, which SCAQMD and others assert would give the idling rules the force of federal law under the CAA and require that the rules be "harmonized" with the ICCTA.  However, the EPA sought the advice of the STB before doing so.  On February 26, the STB issued a decision instituting a proceeding.  Numerous railroads and environmental groups submitted comments on the matter. 

The STB's preemption authority is largely based on ICCTA and prevents states or localities from (among other things) imposing requirements that could be used to deny a railroad the right to conduct rail operations.  In the comments submitted to date, the railroads maintain that SCAQMD's rules are preempted by ICCTA even if they are adopted in the SIP.  SCAQMD and other local and environmental groups argue that adoption into the SIP gives the rule the force of federal law which would require that they be harmonized with ICCTA.

The STB's decision will have far-reaching implications given that other states may seek to set out similar restrictions on idling locomotives.  Indeed, the state of Massachusetts already adopted anti-idling rules into its SIP in 1972 and has filed comments in support of the proposed rules with the STB.

The STB's deadline for the submission of comments in the proceeding was March 28, 2014 and replies are due by April 14. 


1 Ass'n of American Railroads v. South Coast Air Quality Mgmt. Dist., 622 F.3d 1094 (9th Cir. 2010).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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