Where Is Buttigieg On The “Bomb Train” Threat?

Weeks after the “100 percent preventable” derailment in East Palestine, Ohio, Transportation Secretary Pete Buttigieg is pledging to finally get tough on a railroad industry that’s been resolute in fighting safety regulations. But environmental groups say Buttigieg’s department is still delaying action to block one of railroads’ most reckless proposals to date: allowing so-called “bomb trains” to carry highly explosive liquefied natural gas (LNG) through populated areas.

Some 25 million Americans live in the one-mile evacuation zone of trains carrying crude oil, according to one estimate. Super-cooled and highly compressed, liquefied natural gas could prove an even bigger danger, and federal policy has long prohibited its transportation by rail. According to the law firm Earthjustice, the accidental breach of just one train tank car carrying the gas could trigger an explosion big enough to destroy a city, while 22 tank cars’ worth contains the energy equivalent of the nuclear bomb that destroyed Hiroshima.

A 2020 rule from Donald Trump’s Transportation Department reversed course and, for the first time, authorized the future train transport of LNG. Later that year, five environmental groups represented by Earthjustice, 16 state attorneys general, and the Puyallup tribe of western Washington all filed legal challenges to the new rule, hoping to bar the dangerous practice before it began.

Shortly after Joe Biden was sworn in as president in January 2021, the administration announced that the Transportation Department would reexamine the LNG by rail rule as part of a sweeping review of regulatory rollbacks under Trump. In March of that year, the environmental groups and other petitioners agreed to pause their litigation — which had been consolidated by the courts and remains pending before the U.S. Court of Appeals — while Buttigieg’s Department revisited the Trump rule.

But nearly two years later, the groups are still waiting. After the Transportation Department announced in its January 2022 rulemakings report that it would finalize action to temporarily suspend the Trump rule that summer and begin the process of repealing or amending the rule that fall, the department has twice missed its own deadlines, and the rule remains in place. The department’s next rulemaking update is due on March 6.

“We are frustrated that nearly two years have passed and we haven’t seen anything meaningful from the Biden administration,” said Jordan Luebkemann, a senior Earthjustice attorney who is representing the organizations, including the Sierra Club and the Clean Air Council, in the appeal of the Trump rule.

Railroads have not yet begun transporting the gas, in part because the Trump rule mandated new tank cars that have not yet been manufactured. But at least one major railroad company told Biden regulators it planned to begin doing so by 2024. That company, CSX Transportation, also reported spending more than $1 million last year lobbying the federal government on issues including the transportation of LNG.

“Reliable And Effective”

The Trump administration’s move to open up railroads for the LNG shipments followed a multi-year lobbying campaign by natural gas companies and the Association of American Railroads (AAR), the railroad industry’s chief lobbying group.

In 2017, AAR — then in the midst of a campaign to repeal requirements for better braking technology on trains carrying hazardous material — petitioned the Transportation Department to add LNG to the list of commodities authorized for rail transportation, arguing that doing so would create new economic opportunities.

The Trump administration obliged, and the new rule ultimately eschewed even many of the limited restrictions put in place several years earlier on so-called “high-hazard flammable trains” (HHFT) carrying dangerous materials. As The Lever reported earlier this month, the definition of HHFT had already been narrowed when the Obama administration sided with chemical lobbyists over the recommendations of the National Transportation Safety Board (NTSB).

Because of that Obama-era decision, liquefied natural gas is not subject to the HHFT classification and the enhanced safety requirements it triggers. Neither is vinyl chloride, the chemical released and burned following this month’s East Palestine derailment, which NTSB chair Jennifer Homendy called “100 percent preventable” in a news conference last week.

In the final regulations governing LNG by rail, Trump regulators opted to incorporate a few of the more limited requirements included in the HHFT rule. But they declined to adopt a mandatory speed limit, instead deferring to an industry circular on “recommended railroad operating practices” that includes a suggested maximum speed of 50 miles per hour for trains transporting hazardous materials.

“The industry voluntary approach allows for greater flexibility to stay abreast of fast-changing technology and changes in the market,” Trump regulators noted in their commentary on the final rule.

While environmental groups and other commenters also urged requiring electronically controlled pneumatic braking technology on trains transporting LNG, Trump regulators once again sided with the AAR when they ultimately determined such a requirement “would not be practical,” noting that freight trains’ compressed air braking system “has been in use since 1869 and has proven to be reliable and effective.”

“Sacrifice Zones”

By the time the Trump administration finalized the LNG by rail rule, regulators had also already granted a special permit allowing an energy company to eventually transport fracked LNG from Pennsylvania to a proposed new export terminal on the Delaware River.

That company, New Fortress Energy, is a subsidiary of the private equity firm Fortress Investment Group, which reportedly forgave a $130 million loan to the Trump’s business empire, the Trump Organization, prior to the permit’s approval. That permit included even fewer restrictions than the administration’s subsequent LNG by rail rule.

New Fortress Energy’s plan has been vigorously opposed by local communities along its route.  That route would almost certainly run through cities including Allentown and Philadelphia in Pennsylvania and Camden in New Jersey, according to the group Delaware Riverkeeper Network, which worked with unions and transportation specialists to create a map of the mostly likely path the trains would travel along the 200 miles from Wyalusing, Pennsylvania, to Gibbstown, New Jersey.

Construction of both the Pennsylvania plant and the New Jersey export terminal has been delayed repeatedly, thanks in part to legal challenges from Delaware Riverkeeper Network, which is also one of the groups that filed a challenge to the Trump LNG by rail rule.

The special permit issued by the Trump administration has since expired — but New Fortress Energy is now seeking a new permit from the Biden administration, which has yet to issue a decision.

For the health of communities and the climate, it’s imperative that Buttigieg’s Transportation Department deny the permit and reinstate the broader federal ban on LNG by rail, says Tracy Carluccio, deputy director of Delaware River Keepers.

“You can throw a rock and hit the trains from the backyards of people's houses in Philadelphia and Camden,” she says. “They’re already environmentally overburdened — it’s treating them like sacrifice zones.”

“They Don't Want To Have To Wonder”

Buttigieg’s Transportation Department took a first step towards reinstating the ban on rail transportation of liquefied natural gas in November 2021, when its Pipeline and Hazardous Materials Safety Administration (PHMSA) proposed a rule temporarily suspending Trump’s earlier authorization of the practice while research about its safety continued.

A coalition of 15 Democratic state attorneys general backed the move, noting while they favored outright repeal, “the states support prompt suspension of those regulations in the meantime.”

The primary safety requirement included in the Trump rule was a new, thicker tank car that would be harder to breach in theory, but in reality had never been tested. This year, the National Academies of Science reported that in its accident modeling, a tank car with the new specifications was punctured when struck at 22 miles per hour — well below the 50 miles per hour included as a recommended speed limit in the final Trump rule.

The scientific report cautioned that, by the terms of the existing rule, liquefied natural gas would be transported “in a tank car with design changes, in volumes and on routes that remain unclear, and through communities whose emergency responders may have little, if any, experience with incidents or training scenarios involving LNG.”

Those numerous unknowns escalate the urgency of suspending the rule, according to Earthjustice’s Luebkemann. “Our clients and the communities that they represent live and work alongside rail tracks across the country, and they don’t want to have to wonder if their kids’ elementary school is going to get blown up when a train goes off the rails — that’s the kind of threat this rule invites,” he told The Lever. “We need this reckless rule off the books before it leads to disaster.”

But since the initial rule-making notice in November 2021, action on the matter has stalled. One possible explanation is that the Biden administration has realized the political benefits of promoting the extraction and transportation of LNG. The administration began supporting natural gas exports to Europe following the Russian invasion of Ukraine, and has embraced the use of liquefied natural gas in what critics have called “fossil fuel diplomacy.”

No gas is yet being transported by rail, but the war in Ukraine made the issue a politically charged one nonetheless. In February 2022, following the invasion, 22 Republican state attorneys general submitted a comment to PHMSA criticizing the proposed suspension of the LNG by rail rule as compromising U.S. energy independence.

Buttigieg’s department also received pushback from the railroad industry, including the Railway Supply Institute and CSX Transportation, a major railroad company that donated a total of more than $800,000 to Democratic campaigns in the 2020 and 2022 election cycles. CSX spent more than $1 million last year lobbying the federal government on issues including the transportation of LNG.

In a March 2022 “listening session” held between CSX and officials from the Transportation Department, Federal Railroad Administration, and PHMSA, the railroad company reported that several construction projects had been delayed due to “political uncertainty” surrounding the LNG by rail rule, according to a summary of the meeting. The company also “contended that allowing movement of LNG by rail would have positive impacts on the environmental issues” by allowing more consumers to switch from dirtier fuels.

Last August, the officials held another listening session with the environmental groups, tribes, and state officials still challenging the Trump rule, who expressed concern that action by Buttigieg’s department “will keep getting pushed back indefinitely,” according to a summary of the meeting. A PHMSA official cited an ambitious rulemaking agenda and limited resources and subject matter experts as reasons for the delay.

After the Transportation Department first estimated, in January 2022, that it would finalize suspension of the Trump rule that June and begin amending it in September, the department revised its deadlines to December 2022 and January 2023 respectively.

Those dates also came and went, and in its most recent rulemakings report, the Transportation Department gave March 13 as the new, estimated date for the suspension rule and March 20 as the date to initiate an amended rule.

A spokesperson for PHMSA told The Lever that they could not give updates to this schedule in advance of a March 6 report.