November 2018 Issue
Also in this issue: City of Madison Finalizes 100% Renewable Plan | ADEA Applies to Local Governments Regardless of Their Size
City Railroad Ordinance Preempted by Federal Law
Julia Potter | 12.07.18
In a recent case, City of Weyauwega v. Wisconsin Central Ltd., Case No. 2017AP2298 (Sep. 20, 2018), the Wisconsin Court of Appeals held that federal railroad laws and regulations preempted a City ordinance that was designed to prevent trains from obstructing streets or highways for extended periods of time, rendering the ordinance unenforceable.
The ordinance was enacted in 2010 as an attempt to prevent the Wisconsin Central, a railroad whose tracks pass through the City of Weyauwega, from stopping its trains for extended periods within City limits and blocking vehicular traffic at one or more of the three crossings located within the City. Part of the City is located to the north of the railroad tracks, so the railroad’s stopped trains regularly forced all motor vehicles, including the City’s police, fire, and emergency services vehicles, to take lengthy detours to reach their destinations.
In response, the City enacted the ordinance at issue in this case, which provided:
No person shall leave standing or stop or permit or allow to stand or stop any railroad train, engine, or car upon any street or highway crossing within the City so as to obstruct public travel for a greater period of time than 10 minutes, unless such train or engine care is continuously in motion.
The City issued numerous citations to the railroad under this ordinance, with forfeitures totaling over $25,000. The railroad acknowledged that it had violated the ordinance, but argued that the ordinance was invalid because it was preempted by federal law. The Wisconsin Court of Appeals agreed, and ruled against the City in its attempts to enforce the ordinance.
The Federal Railroad Safety Act (FRSA) is a broad and relatively comprehensive federal law that is designed to “promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101. In order to promote uniform nationwide regulations and avoid a patchwork of contradictory state and local laws and ordinances governing railroads, Congress has declared that the states and local governments are prohibited (or “preempted”) from enacting regulations on subjects covered by the FRSA or the regulations enacted under it. However, Congress carved out two exceptions, or “savings clauses,” which set out narrow circumstances in which states and municipalities may validly enact regulations relating to railroad safety.
The first savings clause provides that a state or local government “may adopt or continue in force” an ordinance “related to railroad safety… until the Secretary of Transportation … prescribes a regulation or issues an order covering the subject matter” of the ordinance. The Court of Appeals determined that the City’s ordinance did not fall within this exception to FRSA’s broad preemption because, while the ordinance was related to railroad safety, the Secretary of Transportation had already been prescribed regulations covering its subject matter. The court concluded that the ordinance was “related to” railroad safety for a number of reasons, including the fact that it did not contain any exception for a train stopped at a crossing because of accidents or other unsafe conditions. However, the court determined that the subject matter of the ordinance was best characterized as “the operation and movement of trains at crossings,” and noted that there were numerous federal regulations that covered the same subject matter.
Similarly, the Court of Appeals concluded that the City’s ordinance did not fall within the exception to FRSA preemption set out in the second savings clause. The second savings clause states that an ordinance can survive FRSA preemption if it (1) is necessary to eliminate or reduce an essentially local safety hazard, (2) is not incompatible with a law, regulation, or order of the US government, and (3) does not unreasonably burden interstate commerce.
The Court of Appeals determined that the ordinance did not meet the first element of the test because the safety hazard it addressed — increased emergency response time to certain parts of the City due to blocked crossings — was not an “essentially local safety hazard,” but instead was a widespread problem that was capable of being adequately addressed by national uniform standards. Thus, because the City’s ordinance did not fall within the narrow exceptions set forth in the first and second savings clauses, the court found that it was preempted by the FRSA and could not be enforced against the railroad.
This case should serve as a reminder to municipalities that local regulatory authority over railroads is often severely constrained by federal law. In addition to the FRSA, Congress has enacted the Interstate Commerce Commission Termination Act, which grants the federal Surface Transportation Board broad jurisdiction over “transportation by rail carriers” and preempts a wide variety of state and local attempts to regulate railroad operations, including many environmental, land use, and permitting requirements. Municipalities attempting to use local ordinances to exert control over railroads should pay careful attention to federal laws governing railroads (including the scope of and exceptions to the preemption clauses contained in these laws) in order to ensure their ordinances are enforceable and will not be preempted by federal law.
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