Railroad safety steered off track.

It is unlikely that when Congress passed the Federal Railroad Safety Act of 1970 it intended for the Secretary of Transportation to promulgate a rule that would erase a railroad company's duty to keep grade-level crossings safe. And, certainly, the Federal Highway Administration (FHWA) did not have this in mind when it implemented a regulation relating to minimum protection at these crossings. Yet, a recent U.S. Supreme Court decision, in effect, created this result.

On April 17, the Supreme Court held in Norfolk Southern Railway Co. v. Shanklin that railroads cannot be held accountable under state law for failure to maintain adequate warning devices at crossings where federal funds have participated in the devices' installation. (120 S. Ct. 1467 (2000).)

Since there is no federal tort law in this area--only accountability under state law --in the wake of Shanklin, a growing coalition of rail safety organizations is left wondering "who is minding the store?" or, in this case, "who is watching the tracks?"

No automatic warning devices

In the United States, there are about 160,000 public crossings. According to the Federal Railroad Administration, more than 80 percent of these crossings do not have automatic warning devices such as lights or gates. The National Transportation Safety Board (NTSB) says that 60 percent of crossing fatalities occur at these nonautomatized, or passive, crossings.

The Tennessee crossing at which Dedra Shanklin's husband was killed was a passive crossing, marked only by a sign called a crossbuck. And that sign was paid for with federal funds.

In part, Mrs. Shanklin's attorney argued that state law should not be preempted in her case because the crossing where Mr. Shanklin was killed met conditions that, under the federal regulation, mandate the installation of automatic warning devices. Yet, only a sign was installed. No matter, said the Court.

Justice Sandra Day O'Connor wrote for the majority that the argument

   misconceives how preemption operates under these circumstances. When the
   FHWA approves a crossing improvement project and the state installs the
   warning devices using federal funds, [the regulations] establish a federal
   standard for the adequacy of those devices that displaces state tort law
   addressing the same subject.... It is this displacement of state law ...
   and not the state's or the FHWA's adherence to the standard ... that
   preempts state tort actions.

Money talks, railroads walk

Following enactment of the Federal Railway Safety Act, the FHWA created the Federal Railway-Highway Crossings Program to combat the high number of fatalities at railroad crossings. The railroad industry, pleading poverty, claimed it could not afford to install warning devices, so Congress established a program that would give money to the states to subsidize the installation. To date, the federal government has spent more than $4 billion on this program. And while the effort has reduced the number of crossing deaths and injuries, there were, according to the Federal Railroad Administration, 399 crossing fatalities and 1,360 nonfatal incidents in 1999.

As the railroad industry has rebounded (some companies have recently shown annual earnings of up to a billion dollars), it is now in a stronger position to contribute to safety improvements at crossings. Several railroad safety organizations--such as Angels on Track Foundation, Hands Across the Rails, and Railwatch--asserted in an amicus brief filed in support of Mrs. Shanklin's claim that "installation of lights and gates has been an affordable option for the four largest railroads in the United States since 1980."

The brief includes an analysis by the former vice president of economics for the Association of American Railroads, who concluded that Union Pacific, the nation's largest railroad, could install automated gates at all its passive crossings at an annualized cost of about $13 million. That $13 million is less than the total annual cash bonuses Union Pacific executives received from 1993 to 1996.

The only incentive for railroads to install gates or take other safety measures has been their potential liability. With the Court's decision, railroads now have little or no incentive to make needed safety improvements.

In her dissent, Justice Ruth Bader Ginsberg wrote that the "upshot of the Court's decision is that state negligence law is displaced with no substantive federal standard of conduct to fill the void. That outcome defies common sense and sound policy."

What to do?

Bob Pottroff, an attorney for the safety groups that filed the amicus brief, said that the "silver lining" in Shanklin is that "it has mobilized people who have been hurt by the railroad companies' safety practices." He believes that grassroots organizations and Internet-based advocacy groups will band together to develop either an administrative or legislative response to Shanklin that will limit the scope of federal preemption and restore accountability.

Justice Stephen Breyer, even while concurring with the majority opinion, suggested one such possible solution. He acknowledged the government's position that it did not want its regulation to preempt Mrs. Shanklin's claim and wrote that the government can "simply change the relevant regulations ... by specifying that federal money is sometimes used for `minimum,' not `adequate,' programs, which minimum programs lack preemptive force. The agency remains free to amend its regulations to achieve the commonsense result that the government itself now seeks."

Accountability needed

Following the Shanklin decision, ATLA representatives met with Department of Transportation officials to stress the urgency of restoring accountability under state law. ATLA is continuing to work with the department on this matter and will provide information on grade-crossing litigation. In addition, some association members have formed a steering committee whose goal is to address and improve railroad safety.

Kristin Loiacono is media relations coordinator for ATLA.