WHEN RAILROADS, POLLUTION, AND
PREEMPTION COLLIDE
By
Prof. Anthony Michael Sabino
It is difficult to imagine a scenario which combines the disparate matters of railroads, pollution, and the legal doctrine of federal preemption. Nonetheless, these nominally disassociated topics recently coalesced into a neat illustration of the appropriate methodology for resolving tensions between federal law and their state counterparts. Notwithstanding that this fresh adjudication constitutes an interim judgment, its illumination of vital constitutional principles makes it worthy of our attention.
Supremacy and Preemption
We commence our analysis with the Supremacy Clause, and its mandate that the Constitution and all laws enacted pursuant thereto are paramount. See U.S. Const. art. VI, cl. 2 (“This Constitution, and the laws of the United States…shall be the supreme law of the land.”). Animating the Supremacy Clause is the multifaceted canon of “preemption,” which can be readily parsed into three distinct subdoctrines.
First, there is “express” preemption, signaled by explicit statutory language declaring that the subject legislation supersedes all rivals. Next is “field” preemption, present where Congress evidently intends to “occupy the field,” to the exclusion of other measures. See Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) (nationwide edict imposing sanctions upon a foreign government unseated incumbent local mandates). Third, there is “conflict” preemption, elegant in its simplicity for it ousts any state regulations or court decisions which controvert federal statutes. See Viking River Cruises, Inc. v. Moriana, 596 U.S. ___ (2022) (displacing a local law which contravened national law and policy). A final note: while in an antiseptic discussion the foregoing categorizations appear to be black and white, in the real world the boundaries distinguishing the three are, more often than not, shaded in gray. See AT&T Mobility v. Concepcion, 563 U.S. 333 (2011) (Federal Arbitration Act simultaneously displays characteristics of both “field” and “conflict” preemption).
New York’s Waste By Rail Law
Association of American Railroads v. Seggos, ___ F.Supp.3d ___ (No. 24-cv-00135) (S.D.N.Y. March 17, 2025) (“AAR”), might be said to have its inception in 2023, when New York lawmakers enacted the appropriately named “Waste by Rail Law” (the “WBRL”), amending the Empire State’s Environmental Conservation Law. Yet it cannot be gainsaid that a more accurate starting point for the case at bar is the late Nineteenth Century, when the Interstate Commerce Act establishing federal hegemony over the Nation’s railroads came into being, a matter we shall refer to in due course.
For the moment, the salient point is that New York sought to mitigate air pollution by requiring “sealing hard lids” over all rail cars transporting putrescible waste (solid organic matter which releases odors as it decomposes), and “hard tarping securely fastened over the load” for all rail shipments of non-putrescible waste (non-decomposing solid refuse). See N.Y. Environmental Conservation Law at § 27-0712(2). The new mandates represented a sea change from the former practices of loading putrescible waste into vented containers topped by specialized lids or customized tarping (either of which allows gases to escape), and ferrying non-odorous refuse via special gondola cars secured by netting.
Association of American Railroads
Aggrieved by the new regulatory regime, trade associations representing the railway and waste industries sought to permanently enjoin enforcement of the revised statute on grounds of federal preemption. Naming the head of the State’s Department of Environmental Conservation as the lead defendant, they complained that the amendments disrupted and unduly burdened rail transportation, and required a changeover to complex and, not surprisingly, more expensive waste coverings, which themselves did not conform to industry norms. The plaintiffs further alleged that over 40% of all rail traffic originating in New York State involves the transportation of waste and scrap, that a significant amount of the Nation’s refuse transits the region, and that the new law would consequently shift much of that movement from the rails to trucks and state highways, thereby exacerbating, not improving, air quality.
In denying, at least in part, the defendants’ motion to dismiss for failure to state a claim, see Fed. R. Civ. P. 12(b)(6), District Judge Ronnie Abrams found that the industry had, in fact, plausibly alleged that it was entitled to relief. See also Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009) (a complaint must be facially plausible to survive a dismissal motion). Essential to that portion of the trial bench’s judgment was the plain text of the Interstate Commerce Act or, better said, its superseding legislation.
Railroads and Interstate Commerce
Promulgated in 1887, the Interstate Commerce Act created the eponymous Interstate Commerce Commission (the “ICC”) for the express purpose of regulating the Nation’s extensive rail network, post-Civil War America’s then-dominant means for moving cargo and passengers. However, over a century later, the ICC was abolished by the aptly named Interstate Commerce Commission Termination Act (the “ICCTA”).
The Commission’s functions were assumed by the Surface Transportation Board (the “STB”). In furtherance of the nascent agency’s mission, the ICCTA expansively defined “transportation” as encompassing any kind of movement or services related to transporting passengers, cargo or both by rail. See 49 U.S.C. § 10102(9). Moreover, the 1996 enactment granted the STB exclusive jurisdiction over rail carriers, and decreed that all remedies pertaining to railroads were “exclusive and preempt[ed]..Federal or State law, see 49 U.S.C. § 10501(b), reflecting Congress’s ongoing concern that local oversight of intrastate railways “would risk the balkanization and subversion of the Federal scheme…for this intrinsically interstate form of transportation.” See Island Park, LLC v. CSX Transportation, 559 F.3d 96 (2d Cir. 2009).
Indeed, over a decade and a half before AAR was decided, the august Second Circuit recognized that this iteration of federal transportation legislation preempted all state laws that may reasonably be said to have the effect of managing or governing railroad operations, with only narrow exceptions being made for local ordinances that have nothing more than a remote or incidental impact upon the rail industry. See id. (the ICCTA’s preemption language “is unquestionably broad”). See also Green Mountain R.R. Corp v. Vermont, 404 F.3d 638 (2005) (local law trumped by “completely exclusive” ICCTA).
With those precedents in hand, the district court unsurprisingly concluded that the plaintiffs had, indeed, “plausibly alleged that the Waste by Rail Law burdens rail transportation and have stated a preemption claim under the ICCTA” (footnote omitted). The trial bench found that the evolution of the statutory scheme evinced a legislative intent to invest federal regulators with paramount authority over the “transportation of solid waste in particular,” as well as rail carriers in general. Accordingly, District Judge Abrams concurred with the complainants that “the [WBR] law burdens and discriminates against railroads,” while further acknowledging in a detailed parenthetical the allegation that Congress intended the transportation of solid waste by rail “to remain in the STB’s exclusive jurisdiction.”
Federal Railroad Safety Act
As an additional ground justifying partial denial of the motion to dismiss, the AAR court notably proffered the Federal Railroad Safety Act (the “FRSA”). Inaugurated by Congress in 1970 “to promote safety in every area of railroad operations and to reduce railroad-related accidents” and mishaps, see 49 U.S.C. § 20101, that statutory scheme boasted its own express preemption subsection, which proclaimed that all laws and regulations “related to railroad safety…shall be nationally uniform to the extent practicable.” See id. at § 20106(a)(1).
To be sure, the defendants had urged dismissal on the grounds of the FRSA’s so-called “savings clauses,” which, truth be told, did preserve a modest role for local authorities in assuring railway safety. See id. at (a)(2). Put one way, these New York State officials contended that the plaintiffs’ claim of federal preemption was cancelled out by these residual provisos.
District Judge Abrams was wholly unpersuaded, as revealed by these succinct findings: the WBRL’s legislative history “merely underscores [its] environmental purpose;” the regulation’s plain text “refers to the safety of solid waste management rather than rail safety;” the state measure “address[es] public health and environmental effects incidental” to waste haulage; and, finally, the statute, as amended, is lodged within the Environmental Conservation Law, not elsewhere. Compare, i.e., N.Y. Railroad Law § 75 (2014) (New York State Department of Transportation Commissioner authorized to approve railroad “safeguards”). Simply stated, the trial bench found there was little or no relationship between the local environmental protection statute and the FRSA.
For all these reasons, and at least for now at the pleading stage, the AAR bench accepted the plaintiffs’ “well-pleaded factual allegations” as plausibly stating a claim. Accordingly, the railroaders would be allowed to proceed with the bulk of their causes of action.
Conclusion
Once again, we find remarkable AAR’s conglomeration of dissimilar topics into a single, cogent judicial opinion. But its true notoriety, and, moreover, its inestimable value, does not lie in its novel facts.
Far more important is the district court’s insightful parsing of involved statutory language, all the while maintaining a laser-like focus upon the truly determinative provisos, that being the plainly stated express preemption clauses which decreed, in no uncertain terms, that federal law is paramount in these matters. In this fashion, AAR assures the vitality of the Supremacy Clause, in letter as well as in spirit. For now, we look forward to monitoring further developments in this ongoing and unique controversy.
Prof. Anthony Michael Sabino, partner, Sabino & Sabino, P.C., is also a Professor of Law, Tobin College of Business, St. John’s University. Anthony.Sabino@sabinolaw.com.
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