One year after the fiery derailment of a Norfolk Southern freight train in southeast Ohio, legislation to improve rail safety has stalled in the U.S. Senate. But while proponents accuse industry interests of blocking the path forward, congressional observers say the bill is rife with bad policy and even worse politics.
“There is no serious person in Washington, D.C., who believes the Railway Safety Act is primarily focused on safety,” said Marc Scribner, senior transportation analyst at Reason Foundation. “It was a hastily cobbled-together mismatch of union priorities and some other random priorities that had already been floating out there. It wasn’t targeted at the derailment.”
At approximately 8:55 p.m. on Friday, Feb. 3, 2023, a 150-car train derailed, sparking an almost apocalyptic scene in East Palestine, Ohio. Twenty of the affected 50 rail cars contained hazardous materials – most notably, vinyl chloride, a flammable and toxic chemical. Emergency responders made a fast decision to vent the gas, and the vinyl chloride, along with other chemicals that spilled out of different cars and ran into nearby waterways.
In the ensuing months, residents in and around East Palestine complained about breathing difficulties, rashes, and irritated eyes and throats. Some Centers for Disease Control and Prevention team members who conducted door-to-door health surveys near the derailment site about a month after the incident became sick with similar symptoms.
The National Transportation Safety Board’s report on the incident is expected later this year. U.S. Rep. Sam Graves (R-Mo.), chair of the House Transportation and Infrastructure Committee, has indicated he would await that report before moving legislation.
Ohio’s two senators, however, rushed ahead with the Railway Safety Act, not even a month after the accident.
Addressing Root Causes vs. Union Priorities
Political newcomer Sen. J.D. Vance (R-Ohio), who rode former President Donald Trump’s coattails to a populist victory in 2020, and Sen. Sherrod Brown, a stalwart progressive Democrat who’s held elected office since 1975, joined forces for this legislation.
But rather than focusing on the events in East Palestine, critics say their bill was loaded up with provisions pushed in Washington, D.C., by rail unions and their political allies.
The NTSB’s preliminary report issued Feb. 23, 2023, traced the initial problem to a wheel bearing that was 253 degrees hotter than air temperature. The crew was alerted by a defect detector built into the railway and applied the brakes. Before coming to a full stop, though, the report noted that the 23rd car derailed, pulling others off the track while at the same time making an emergency brake system kick in.
During a legislative markup in May in the Senate Committee on Commerce, Science and Transportation, Sen. John Thune (R-S.D.) agreed that requiring defect detectors and other updates to emergency response procedures had merit.
“Otherwise, there’s not much in the proposed legislation that would address the root cause of the derailment in East Palestine, based on what we know so far,” Thune said during the hearing.
The Association of American Railroads told DCJournal it has had “open, productive conversations” with lawmakers about taking a data-driven approach to addressing the incident. It also wants to avoid “unintended consequences from some ill-conceived provisions.”
The group pointed out five problematic provisions: the lack of a cost-benefit analysis for rulemaking throughout the legislation; a limited definition of High Hazard Train; locking in existing technology for detectors that would eliminate advanced innovations; doubling the number of qualified locomotive inspections; and mandating crew size, which has long been a union priority.
Since the 16-11 committee vote – in which Vance and Sen. Eric Schmitt of Missouri were the only Republicans supporting the bill – there has been no action on the legislation. In June, Brown told a Cleveland television station that the bill would be taken up on the Senate floor within a week, but that has not happened.
Legislative Inexperience or Political Miscalculation?
Democrats and Vance blame the rail industry for preventing the full Senate from voting on the bill. Republican leadership has also been a target of ire. But the bill remains unchanged from the May markup – an oddity for legislation that should be under active negotiations by authors trying to garner 60 votes for full Senate passage.
“More experienced members know what’s going on,” Scribner said. “Responding to a single accident with potentially dramatic changes is not going to get you to where you want to be. It’s a reasonable assumption that [Vance’s] lack of experience on Capitol Hill and his staff’s lack of knowledge about rail safety and the groups involved may have led him astray.”
Scribner said it makes more sense to wrap safety provisions into the 2026 Surface Transportation Act, which is must-pass legislation, rather than fight for a stand-alone bill.
“Something that’s tailored to the NTSB report could have a chance, but as written, [The Railway Safety Act] is not responsive to the incident,” Scribner said.
Meanwhile, the Biden administration has started booking Transportation Secretary Pete Buttigieg on national media interviews to push the Senate to move.
“It’s striking to me that you have this bipartisan legislation that’s just sitting there waiting its turn,” Buttigieg told CNN’s Jake Tapper last week.
Phil Bell, director of External Relations for FreedomWorks, said the fact that the legislation has not moved forward is a sign that Vance’s colleagues recognize its faults.
“The restraint shown by the Senate in not moving this bill is a rare example of politicians showing responsibility by letting the raw emotions pass, allowing investigators to do their work, and listening dispassionately to the various voices in the room,” Bell said. “This is bad legislation that Sen. Vance chose to carry, which would raise costs dramatically on consumers by making transportation slower, more expensive, and ultimately less safe. Vance is part of the wing of the GOP that embraces a large, activist government and takes its cues from a myriad of the special interest groups who used to be very influential with the Democrats.”
Brown may also have miscalculated, assuming the bill would have passed long ago.
While Republicans duke it out before the March 19 Ohio primary, Brown will have time to figure out how to explain why he has been unable to persuade the Biden administration to declare a state of emergency in East Palestine or even get President Joe Biden to fulfill his promise to visit the community. He also will not have the Railway Safety Act to point to as a legislative achievement.
Norfolk Southern recently ended its housing assistance for displaced residents, but independent researchers and engineering experts say serious questions remain unanswered about the effect of the vinyl chloride venting and burnoff, as well as the amount of air and water contamination to which residents in the region may have been exposed.
Veteran Ohio political consultant Barry Bennett said Brown’s inability to swing support for an emergency declaration reinforced voters’ belief that he was not fighting for them. In September, the White House said Biden would visit East Palestine but has refused since that announcement to give any more details about when a trip might happen. Trump visited East Palestine weeks after the derailment and called the federal response a “betrayal.”
“Biden has refused to come, and Brown issues press releases,” Bennett said. “The [Railway Safety Act] is more about preventing another [derailment], which is little relief from the pain the community still feels. With Congress at an approval rating of less than 20 percent, talking about legislation drafted but not passed simply reinforces voter attitudes that Congress is completely ineffective.”
