On the rails, wrongs without remedies.

At about 1:45 a.m. on a bitterly cold and snowy morning in January 2002, a 112-car Canadian Pacific Railway train headed to St. Paul, Minnesota, encountered a devastating problem just outside the prairie town of Minot, North Dakota, population 37,000.

A crack in a joint between sections of track rail--a defect that somehow had gone unnoticed by the railroad's inspectors--sent a portion of the train careening off the track. About 30 of the train's cars collided violently, creating what would soon become a disaster of epic proportions.

Fifteen of the derailed cars were tankers, each carrying about 30,000 gallons of anhydrous ammonia, a hazardous chemical commonly used as fertilizer. Seven of the fifteen tankers were ripped asunder, releasing 210,000 gallons of ammonia. The liquid quickly vaporized, creating a massive toxic cloud that enveloped unfortunate neighborhoods nearby.

The poisonous cloud killed one man that night. About 15,000 residents were affected in some manner, with 1,605 forced to seek medical attention.

The National Transportation Safety Board ultimately determined the wreck was caused by inadequate track maintenance and inspections. Hundreds of victims stepped forward to file suits in North Dakota state court, looking to hold Canadian Pacific Railway accountable for its obvious and devastating misconduct.

But the residents of Minot might find themselves deprived of the opportunity to seek recovery for their injuries and to hold the railroad responsible for its misdeeds. Recently, the federal district court in North Dakota dismissed all claims filed against Canadian Pacific Railway on the basis of federal preemption. (Mehl v. Canadian Pac. Ry., 417 F. Supp. 2d 1104 (D.N.D. 2006).)

The court reasoned that with the Federal Railroad Safety Act (FRSA), Congress had given the federal Department of Transportation exclusive authority to ensure uniform rail safety and so "absolved railroads of any common law liability for failure to comply with the safety regulations."

Railroads need only meet minimal safety standards set by the federal government under the FRSA. And preemption renders the states powerless to ensure their citizens' safety by adopting tougher standards regulating the operations of railroads within their borders.

In a recent hearing before the Railroads Subcommittee of the House Committee on Transportation and Infrastructure, Minneapolis attorney Sharon Van Dyck testified that the FRSA has been "perverted by courts who apply the doctrine of preemption to deprive Americans grievously injured in railroad accidents of any remedy, even when it is undisputed that the cause of the accident was the railroad's failure to live up to those minimum federal standards."

The preemption issue as it relates to railroads is critical because statistics indicate rail accidents are on the rise, placing motorists and homeowners at greater risk while leaving them with fewer legal options.

The Federal Railroad Administration (FRA) reports that the total number of train accidents, including collisions and derailments, has increased from 2,504 in 1994 to 3,325 in 2005. Fatalities have jumped from 12 in 1994 to 33 in 2005, while injuries have gone from 262 in 1994 to 734 in 2005.

Just as disconcerting, the FRA actually investigates very few incidents. The agency looks into only about two-tenths of 1 percent of all accidents involving railroads.

It's obvious the federal government isn't doing enough to ensure the safety of the rail transport system, yet the states, to a large extent, are prohibited from holding railroads accountable for their acts of negligence. Slipping all 50 states into a one-size-fits-all straitjacket regarding rail safety does the public a grave disservice.

Growing problem

Transportation isn't the only area affected by preemption. The wording in many recent federal regulations could deal the states out of adopting tough safety standards on everything from food to consumer goods.

Why is the federal government undermining the states? Because corporate CEOs, supported by their allies in the U.S. Chamber of Commerce, are pressing hard to reshape the law in their favor, aiming to further enrich themselves by eliminating the rights of injured people to hold them accountable when corporate misconduct causes injury.

This backdoor attack on the civil justice system is a serious threat to the nation's health and well-being and must be stopped.

BILL STRAUB is deputy director of communications at AAJ.