The Biden administration was slow to publicly respond to Norfolk Southern’s toxic train disaster in Ohio — and when they did, White House officials and Transportation Secretary Pete Buttigieg at first struggled to explain why they weren’t racing to improve railroad safety standards. At one point, Buttigieg even implied he had little power to force the rail industry to upgrade its safety equipment and procedures.
After a week of withering pressure prompted by The Lever’s reporting, there’s been a transformation: On Tuesday, the Transportation Department announced it will pursue new rules on trains transporting hazardous materials, called on Congress to help regulators crack down on the railroad industry, and pressed railroad companies to voluntarily make some changes to prioritize public safety.
Meanwhile, President Joe Biden publicly slammed the rail industry’s lobbying against tougher safety regulations.
Buttigieg appeared on ABC News to lay out the department’s new proposal, and similarly criticized the railroad industry for its opposition to new safety rules: “Ever since I came into this job, I have seen the power that multi-billion dollar railroad companies wield, and they fight safety regulations tooth and nail,” he said. “That’s got to change. The future cannot be like the past.”
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While the rulemaking details — and regulatory follow-through — remain to be seen, the sea change from the Biden administration proves yet again the power of public pressure and the value of accountability reporting.
Buttigieg, a corporate-friendly pol and former management consultant at McKinsey & Company, is now portraying himself as a populist critic of industry. Just take a look at this press release from the Transportation Department, where Buttigieg says: “Profit and expediency must never outweigh the safety of the American people.”
Biden chimed in later in the day, tweeting: “Rail companies have spent millions of dollars to oppose common-sense safety regulations. And it’s worked. This is more than a train derailment or a toxic waste spill — it’s years of opposition to safety measures coming home to roost.”
While Buttigieg fans were incensed by The Lever’s reporting series on the regulatory environment that created the conditions for Norfolk Southern’s fiery derailment, the Transportation Department’s announcement makes clear that accountability journalism — rather than sycophantic worship of politicians — can force change.
Promises To Use Executive Authority
Among the items included in the Transportation Department plan: “Pursuing further rulemaking, to the extent possible under current statute, on high-hazard flammable trains (HHFT) and electronically controlled pneumatic brakes (ECP).”
This promise is particularly important: As The Lever reported, when the Obama administration was crafting new regulations on “high-hazard flammable trains,” officials limited how many trains would be subject to higher safety standards, ignoring pleas from federal safety regulators and siding with railroad lobbyists.
As a result, railroads do not have to notify state and local officials when trains moving through their communities are transporting Class 2 flammable gases like vinyl chloride, the carcinogenic substance that necessitated local evacuations in East Palestine, Ohio. Crews released and burned the vinyl chloride, creating a toxic mushroom cloud.
By limiting the definition of “high-hazard flammable trains,” the Obama administration reduced the number of trains that would be required to use new electronic braking technology. Several experts, including former Federal Railroad Administration official Steven Ditmeyer, told The Lever that the better brakes would have reduced the severity of the derailment in Ohio.
The Trump administration went on to scrap the new brake requirements entirely, with support from Senate Republicans.
Last week, Buttigieg suggested that the Transportation Department was “constrained by law on some areas of rail regulation (like the braking rule withdrawn by the Trump administration.” Now, the department is publicly indicating that it will seek new rules on high-hazard flammable trains and electronic brakes — and pledging to more aggressively use its executive authority under current law. Better late than never — though it will require constant pressure to ensure these promises become reality.
A Push For Bigger Fines
The Transportation Department separately called on Congress to increase the maximum fines that the department can issue to rail companies for safety violations, and requested that lawmakers support its efforts to pass new rules on electronic brakes and high-hazard flammable trains.
It’s a remarkable shift, at least in terms of posture. We’ll have to see whether Biden’s regulators follow through on this pledge to pass new rules — or whether they will succumb to industry pressure.
The railroad industry’s chief lobbying group — which receives big contributions from Norfolk Southern every year — is already demanding that regulators slow down and hold off on issuing new rules until the government has completed its investigation into the Ohio derailment.
“Make It Happen”
The Transportation Department additionally called on railroad companies to voluntarily “take urgent, dedicated action that includes not just complying with current standards but decisively putting the long-term safety of workers and communities ahead of short-term opportunities to supercharge profits.”
Proposed actions for the railroads to take include speeding up plans to phase-in safer tank cars for hazardous materials before they are federally required in 2029, notifying state emergency responders when trains are carrying hazardous gases through their states, and providing paid sick leave to rail workers.
Railroad union leaders were less than impressed with the department asking the railroad giants to voluntarily make these changes.
“Pete Buttigieg — like any other bureaucrat or politician — is a master of pontification, [saying]: ‘I believe this. And we could do that,’”said Ron Kaminkow, the general secretary at Railroad Workers United. “I don’t give a damn what you believe. And I don’t give a damn what we should do. Make it happen.”
“All of that nonsense about urging and encouraging the Class I rail carriers is simply grandstanding and ineffectual,” Kaminkow continued. “It is bullshit. Make the bastards do it!”
