Just as the Affordable Care Act didn’t make care more affordable and the Inflation Reduction Act wasn’t about reducing inflation, the Railway Safety Act won’t do much to improve railway safety. It could wind up making overall transportation less safe, and Congress should reject it.
The Railway Safety Act was introduced by Senator Sherrod Brown (D., Ohio) in the aftermath of the February 3 train accident in East Palestine, Ohio. The state’s other senator, J. D. Vance (R.), is a co-sponsor and one of the bill’s most ardent supporters. He is joined by two other Republicans, Josh Hawley (Mo.) and Marco Rubio (Fla.), and Pennsylvania Democrats John Fetterman and Bob Casey as co-sponsors.
The bipartisan nature of the bill has received glowing press coverage, but its contents have garnered less attention. It incorporates policy recommendations from Secretary of Transportation Pete Buttigieg that are not germane to the East Palestine accident, grants the secretary’s office broad new powers to regulate the rail sector, and includes sops to organized labor. A number of unions, which are obviously close to Brown, instantly endorsed the bill.
The Railway Safety Act has nine “the Secretary shall” phrases in its 18 pages, and it would expand Buttigieg’s power to regulate trains with even one car containing hazardous materials.
The norm in the rail industry is mixed-freight trains. According to data from the Association of American Railroads, 41 percent of trains carry at least one car with hazardous materials. That means the Railway Safety Act would give the DOT expanded power to create new regulations on the train length, weight, consist, route selection, speed restrictions, track standards, and more, for 41 percent of the trains in the U.S.
Of course, the railroads would adjust their behavior to any new regulatory burden. For example, rather than having five 100-car trains with ten hazmat cars each, all subject to increased regulation, they would try to concentrate all 50 hazmat cars on one train, to avoid new strictures on the other four.
If that one train derails, now the accident will have a higher likelihood of being severe. Given that train derailments are extremely rare already, avoiding severe accidents with high numbers of hazmat cars seems like it would be the better policy.
Creating the incentive to concentrate hazmat shipments on fewer trains also reduces the options for schedulers to meet shippers’ deadlines. If a shipper has fewer rail options, it is likelier to consider the closest substitute: trucks. That means more hazardous materials on highways, which would put them in closer contact with more people and dramatically increase the risk of accidents.
The bill also includes sweetheart provisions for organized labor. The first is that it would mandate two-man train crews. That’s the industry standard right now, and such a rule would have little effect on current operations. (The train that derailed in East Palestine had three crewmen onboard.) The danger of adopting such a rule is that it would forestall future innovation in automation technology, which could increase safety down the road.
The second is that it would allow Buttigieg to “create minimum time requirements that a qualified mechanical inspector must spend” when inspecting railcars. By writing the “qualified mechanical inspector” into the law, this provision is designed to protect union jobs, potentially at the expense of safety. Just as with train operation, technology might be able to do the job better in the future, but this bill would discourage that progress by mandating that the job always be done by a human paying union dues.
This isn’t just hoping for hypothetical improvements. Railroads have already developed technology to perform track inspections automatically, with laser-measuring devices mounted on the bottom of locomotives that relay data to analysts in real time. That program was showing promise, with data showing safety improvements — until the Biden administration paused it at the behest of organized labor. Last week, the Fifth Circuit Court of Appeals ruled that the pause was arbitrary and capricious, lambasting the administration’s “paucity of reasoning . . . in the face of the agency’s statutory mandate to prioritize safety.” The bill protects automatic inspections, but to the extent other anti-technology, pro-union rules are written into the law by Congress, administrative-procedure challenges won’t remedy them.
Throughout their history, railroads have exceeded the safety regulations required of them. One example of this is hotbox detectors, which use infrared sensors to measure whether wheelsets are overheating. They are not currently mandated at all, yet railroads have installed thousands of them all over the country, and they promised in the aftermath of the East Palestine accident to install even more. According to a 2019 Federal Railroad Administration report, “Train accident rates caused by axle and bearing-related factors have dropped 81 percent since 1980 and 59 percent since 1990 due to the use of [hotbox] detectors.”
This bill would mandate hotbox detectors every ten miles, imposing a one-size-fits-all, arbitrary government mandate on technology that has already been adopted successfully by railroads on their own. It’s possible for wheelsets to overheat in the space of less than a mile. If it really wanted, Congress could require detectors every ten feet just to be sure, but an FRA safety advisory from February only found five derailments suspected to have been caused by overheating wheelsets since 2021. There are enough Class I railroad tracks in the U.S. to wrap around the equator almost four times, and railroads operate trains 24/7. On a system that large, five derailments from overheating wheelsets (with zero injuries or fatalities) over a year is not cause for a national unfunded mandate.
It is in railroads’ best interest that their trains stay on the tracks, a fact that is lost on some proponents of this bill decrying the “free market” treatment that railroads have allegedly received. In reality, railroads were the first industry to have been federally regulated, and they operate under strict rules unique to their industry with attention from numerous regulatory agencies at the national and state levels.
Accidents still happen, and railroads should be held responsible when they do. Passing a pro-union bill that creates troubling safety incentives is not the way to do that. Vance, Hawley, and Rubio have been unparalleled in their criticism of Buttigieg after the accident, calling him “incompetent” and demanding his resignation. It would be a mistake to join Democrats and pass a bill giving him more power while adopting many of his policy recommendations into law.
Editor’s Note: A clause that said “the unions were very much a part of the bill-writing process” went beyond the available evidence and has been changed. The language about automatic inspections was also changed to make it clear that the bill protects them.