If successful, a “potentially groundbreaking” lawsuit pending in California against Burlington Northern Santa Fe and Union Pacific could reverberate to rail communities across the country.

In October, a group of plaintiffs including the Natural Resources Defense Council filed a lawsuit in U.S. District Court asserting that railroads are illegally harming people who live along their lines. The suit asks the court to order rail companies to figure out how much diesel particulate matter they’re producing, to remediate the effects on nearby residential areas, and to abate the threat.

“People living near these railyards, including members of plaintiffs’ organizations, are in imminent and substantial danger of increased cancer risk, asthma, reduced lung function and other cardiovascular ailments, all as a result of the railyards’ diesel particulate pollution,” reads the legal challenge.

In response to NRDC’s intent to sue letter, Burlington Northern wrote that it entered voluntary emission reduction agreements with the California Air Resources Board more than a decade ago, and its efforts have led to an average decrease of at least 50 percent in diesel emissions in railyards.

“The announcement by NRDC and its allies is misdirected and represents another attempt to attack the region’s goods movement industry through the railroads. As the world’s most fuel-efficient mode of surface transportation, freight rail is an important part of the solution to Southern California’s air quality problem,” reads the response.

But a plaintiff in the lawsuit notes it is “precedent setting,” and a Montana attorney and professor of constitutional and environmental law said the claim appears credible and its impacts could stretch well beyond California.

“It could have far-reaching implications for Montana because whether it’s Billings, Livingston, Missoula (or) Whitefish, many communities have railyards with presumably some of the same characteristics,” said Jack Tuholske, who is based in Missoula and is currently a visiting professor at Vermont Law School.

The lawsuit hinges on the federal Resource Conservation and Recovery Act: “RCRA provides for comprehensive regulation of solid and hazardous wastes to prevent threats to human health and the environment,” reads the legal challenge.

It notes that Congress has declared that solid waste should be treated and stored to minimize the threat to human health and to the environment. And it asks the court to count diesel particulate matter as one of those pollutants, even though it travels through the air.

“Our lawsuit is precedent setting because it asks a court to recognize that diesel particulate matter is a hazardous waste under the federal Resource Conservation and Recovery Act,” writes the NRDC’s Melissa Lin Perrella, a plaintiff in the suit, in an analysis of the case. “RCRA provides for comprehensive regulation of solid and hazardous waste, and protects public health and the environment from ‘imminent and substantial endangerment.’ ”

The plaintiffs also note different ways that railroads can reduce diesel particulate matter in railyards: using cleaner locomotives; electrifying major rail lines; limiting idling time to 15 minutes or less; instating no-idle zones for locomotives within 50 feet of sensitive receptors and residential areas; setting health protective buffers between residential areas and the rail yards; adding filtration systems for homes and buildings in high risk areas; and conducting “enhanced truck, locomotive and equipment inspections to ensure that required pollution levels are being achieved.”

***

Some neighbors of the Missoula railyard also have concerns about diesel emissions, but local governments don’t hold a lot of sway over rail companies. In a recent opinion, Missoula City Attorney Jim Nugent noted the legal restrictions on the ability of local governments to regulate railroads.

“Municipal local government regulation of railroads is quite limited because of federal pre-emption pursuant to both the Supremacy and the Commerce clauses of the United States Constitution and other federal laws enacted in the United States Code,” Nugent wrote.

Basically, the U.S. Congress has the power to regulate commerce, so federal laws trump local regulations when it comes to railroads. And “any municipal law that is inconsistent with federal/United States law is without legal effect.”

At the same time, in “some very narrow, limited areas,” state and local governments may adopt rules that govern railroads, “such as to address the speed of railroad trains as they pass through a municipality.” Montana law also allows cities and counties to establish “quiet zones,” as long as they consult with the railroad and put in place safety measures required by the U.S. Department of Transportation.

“There is a sliver of flexibility in the federal and state law,” Nugent said.

Tuholske is conducting legal research to determine just how much leeway local governments have. Some “Montana-based citizens’ organizations” reached out to him because of the possible increases in coal train traffic through the state.

“There are a lot of people that are concerned with this anticipated explosion in rail traffic to export Montana’s coal to China,” Tuholske said.

Montanans must ask themselves how much noise, pollution and other rail impacts they can live with, he said. When the parameters of local government authority are more clear, the citizens’ groups will help educate the public about their rights and work with local bodies to create lawful regulations – ones Tuholske said “reflect the interests of Montanans – not the interest of exporting coal to China.”

“This is a regional assault in my view by the railroads on the air we breathe, the water we drink, for the benefit of foreign countries,” Tuholske said.

Reporter Keila Szpaller can be reached at @KeilaSzpaller, 523-5262, keila.szpaller@missoulian.com or on MissoulaRedTape.com.

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