Facing pressure from lawmakers in his own party after a spate of train derailments, Secretary of Transportation Pete Buttigieg has now resorted to falsely suggesting that he does not have power to compel the rail industry to upgrade its safety equipment and procedures.
In a Twitter thread posted more than a week after Norfolk Southern’s fiery train derailment in East Palestine, Ohio, Buttigieg indicated that he cannot reinstate an Obama-enacted, Trump-repealed law requiring some trains carrying hazardous materials to replace their Civil War-era braking systems with new Electronically Controlled Pneumatic (ECP) brake technology.
“We’re constrained by law on some areas of rail regulation (like the braking rule withdrawn by the Trump administration in 2018 because of a law passed by Congress in 2015),” Buttigieg wrote.
Buttigieg’s tweet refers to a law passed by Congress in 2015 — at the urging of the railroad industry — requiring the executive branch to conduct cost-benefit analysis of the ECP brake rule before enacting it.
Trump used that law to kill the braking rule, but the cost-benefit analysis his administration used to do so was subsequently discredited.
In response to questions from The Lever, a Transportation Department spokesperson said that its agencies would “use all relevant authorities to ensure accountability and improve safety” once the investigation into the cause of the derailment is completed.
Asked about the braking rule, the spokesperson said that it would be difficult “to reinstate the rule in its previous configuration,” given previous legal challenges.
The spokesperson said proposing a new rule would require performing a new cost-benefit analysis, though they acknowledged that the department has the ability to prepare that analysis.
In 2018, Sen. Jeff Merkley (D-Ore.) demanded exactly that from the Transportation Department.
A coalition of environmental organizations has also been asking the Department to redo the analysis. After the Trump administration rescinded the braking rule, groups including the Sierra Club and Earthjustice appealed the decision, citing the flawed analysis and asking the Transportation Department to prepare a new one. The appeal is still pending.
“We had hoped to see this issue move forward under the Biden administration,” said Kristen Boyles, a managing attorney at Earthjustice. “It’s not clear that it’s a priority.”
Rail law and regulatory experts interviewed by The Lever agreed that Buttigieg’s Transportation Department can and should redo that analysis to allow for a reinstatement of the braking rule.
“The Federal Railroad Administration’s mission is to promote rail safety,” said John Risch, a retired railroad worker and former legislative director of the Sheet Metal, Air, Rail and Transport Workers union, referring to an agency within the Transportation Department. “If they believe that ECP brakes are essential to rail safety, they could require ECP brakes on certain trains or whatever they want to do.”
Risch added that nothing prevents Buttigieg from using his existing rulemaking authority to expand the definition of a “high-hazard flammable train” to cover trains like the one in Ohio.
Under the existing limited definition, the Ohio train — which was carrying five tanker cars of vinyl chloride, a Class 2 flammable gas and known carcinogen — was exempted from the classification’s more stringent safety regulations.
Officials warned the vinyl chloride on board the derailed train could explode, necessitating local evacuations. Crews ultimately released and burned the vinyl chloride, creating a giant, toxic mushroom cloud.
Transportation regulations require high-hazard flammable trains to travel at reduced speeds, utilize newer rail cars with enhanced safety features, and provide notification to state and tribal agencies of the types of hazardous materials they are transporting.
The federal agency tasked with investigating transportation accidents, the National Transportation Safety Board (NTSB), previously unsuccessfully pushed for the Transportation Department to require ECP brakes on trains carrying class 2 flammable gases.
In 2019, after the Trump administration repealed the ECP brake rule, the NTSB urged the Transportation Department to require trains carrying liquified natural gas to utilize the better braking technology.
Meanwhile, Buttigieg’s agency is currently considering a separate rule that would weaken brake testing standards.
“Secretary Buttigieg should call out the brake rule repeal for the horrendous decision it was, start working to implement a new rule, take Norfolk Southern to task, and push back on corporations deciding how the [Transportation Department] regulates them,” said Jeff Hauser of The Revolving Door Project, which tracks corporate influence on government. “Anything short of that only signals to the railroads that this type of incident will be tolerated. That is not an acceptable message from the Secretary of Transportation.”
Buttigieg’s attempt to depict himself as powerless comes after ongoing reporting by The Lever detailing the weakening of safety rules governing the transportation of hazardous materials.
Following that reporting, Reps. Rashida Tlaib (D-Mich.) and Ilhan Omar (D-Minn.) called on Buttigieg to use his power to improve safety rules.
East Palestine sits just miles from the Pennsylvania border — and Pennsylvania Gov. Josh Shapiro (D) also released a statement on Tuesday saying that he has specifically asked President Joe Biden and Buttigieg to “reexamine what constitutes a high-hazard flammable train” and “revisit the need for regulation requiring high-hazard flammable trains to carry more advanced safety and braking equipment.”
Part of that demand was echoed by Ohio Gov. Mike DeWine (R). When asked about rules exempting the Norfolk Southern train from the “high-hazard flammable train” classification, he said: “This is absurd and we need to look at this. Congress needs to take a look at how these things are handled. We should know when we have trains carrying hazardous materials that are going through the state of Ohio.”
Sen. J.D. Vance (R-Ohio) issued a statement Tuesday raising questions about “the quality of the braking systems” on trains as well as “the Transportation Department’s regulatory approach to our nation’s rail system.”
On Wednesday, Vance and Sen. Marco Rubio (R-Fla.) sent a letter to the Transportation Department asking “whether a crew of two rail workers, plus one trainee, is able to effectively monitor 150 cars.”
They additionally asked whether it may be necessary to expand the definition of “high-hazard flammable trains” to include trains like the derailed train in Ohio that was hauling toxic, flammable gases like vinyl chloride.