Preemption is Not Dead: A Look into the Railroad Safety Act
“Safety first!” is a slogan attributed to a railroader of a bygone era. Throughout the history of rail transportation, safety always has been a concern for the industry, as well as the government. However, it was not until 1970, more than 140 years after the nation's first railroad was chartered, that Congress passed the first comprehensive railroad safety law. The Federal Railroad Safety Act (“FRSA”) establishes uniform national safety standards for railroads to abide by. In order to achieve uniformity, this federal law displaces state law, including common law, whenever there is federal law covering the subject matter of the parallel state law. This federal preemption of state law has led to increased railroad safety, but simultaneously, has left some victims of railroad accidents*3 without a remedy.
In 2007, Congress amended the preemption provision of the FRSA in response to two federal court decisions foreclosing relief to plaintiffs who suffered injuries in a major train derailment in North Dakota. In each case, the court held that the FRSA preempted the plaintiffs' state law negligence claims irrespective of whether the railroad was in compliance with applicable federal regulations at the time of the derailment. Congress subsequently “clarified” the preemptive effect of Section 20106 of the FRSA to legislatively overrule these decisions, but how far did Congress scale back preemption under the statute?
This article examines the state of federal preemption under the FRSA following the 2007 amendment. Section II reviews the history of the FRSA and the preemption provision at issue. Section III discusses the North Dakota derailment and the subsequent court decisions that triggered the amendment to Section 20106. Section IV focuses on the legislative history of the amendment to Section 20106 while Section V compares the amendment to former law. Finally, Section VI discusses judicial and agency reactions to the new law.
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