Do states have the authority to regulate how long trains can stop at grade crossings? That, in essence, is the question presented before the Supreme Court of the United States by the State of Ohio in its action against railroad company CSX. Filed in November 2022, the petition arose after the Ohio Supreme Court held that federal law preempts such action by the states.
The Background: At stake in Ohio vs. CSX are similar laws in thirty-eight states and the District of Columbia which set maximum limits on the amount of time a stopped train can block a grade crossing. Many of these regulations have been on the books for decades, in numerous cases stretching back more than a century. Ohio’s original law was enacted in 1853. While some states impose a common statewide standard, others have devised time frames that vary based on localities’ populations. Some delegate authority over grade crossing time limits to local governments, allowing for individualized considerations.
The problem will be familiar to anyone who has had to wait significant periods for a train to clear a grade crossing. Those intervals are increasing as railroads add cars to increase profitability. Many trains are now nearly two miles long, with some being reported at more than twice that length.
While the temporary delay caused by a moving train is inconvenient enough, the subject of this litigation is stopped trains, which can block road crossings for hours or even days as freight is unloaded or cars are shuffled. The resulting inability of vehicles to pass can have deadly consequences as EMTs, fire departments and law enforcement personnel are prevented from reaching people in critical need on the other side of the tracks. Impatient drivers sometimes attempt to end-around the rail cars, resulting in serious injury or worse.
With more than 130,000 grade crossings across the nation, bisecting roads in huge cities and small outposts alike, the issue is significant.
The Litigation: Ohio’s case arises out of CSX’s blockage of nearby crossings as the railroad delivers materials to the Honda manufacturing factory in Marysville. Ohio’s “Blocked Crossing Statute” prohibits stopped trains from blocking public roads for longer than five minutes, with certain exceptions. The state issued five misdemeanor notices of violation to CSX which had blocked four different Marysville roads, in some cases for more than an hour. The railroad countered that the state has no authority to take that action because the issue is fully preempted by federal law. The Ohio Supreme Court concluded the state law was preempted by federal law and the State’s petition for Supreme Court consideration followed.
Competing Legal Inputs: There is no federal law directly addressing the question of train stoppage on grade crossings. The Ohio Supreme Court was required to consider the issue by analyzing two acts of Congress that address the larger question: when and how does federal law preempt state regulations related to railroads?
The first is the Interstate Commerce Commission Termination Act (Termination Act). The Termination Act grants to the federal Surface Transportation Board “exclusive” jurisdiction “over transportation by rail carriers,” “rates,” “classifications,” “rules,” “practices,” “services,” “facilities,” and “sidetracks.”
The second measure is the Federal Railroad Safety Act (Safety Act), which arguably provides States with a savings clause, permitting them to enforce laws “related to railroad safety” until “the Secretary of Transportation … prescribes a regulation or issues an order covering the subject matter of the State requirement.”
The Ohio Supreme Court lead opinion by Chief Justice Sharon Kennedy found that Ohio’s Blocked Crossing Statute did not relate to “safety” and was not saved by the Safety Act.
The State argues in its petition to the Supreme Court that the codified purpose of the Safety Act “is to promote safety in every area of railroad operations” and to reduce all “railroad-related accidents and incidents.” It therefore covers “all public-safety concerns arising from railroad operations—not just concerns pertaining to the safety of railroad employees and passengers.”
As the State notes, while the Termination Act contains preemptive language, it does little to explain how it interacts with other state or federal government regulations.
Ohio points to the Supreme Court’s longstanding recognition that states hold authority over grade crossings. More than a century ago, the petition states, the Court noted “the public’s interest in using the streets is a ‘more important interest’ than the railroads’ interest in using grade crossings, and regulations pertaining to grade crossings ‘obvious[ly]’ implicate the States’ traditional ‘police power.’ ” Erie R. Co. v. Bd. of Pub. Util. Comm’rs, 254 U.S. 394, 410 (1921). Even after Congress began regulating railroads, grade crossings remained an area “within the police power of the States.” Lehigh Valley R. Co. v. Bd. of Pub. Util. Comm’rs, 278 U.S. 24, 35 (1928).
Differing Analyses in Ohio’s Courts: The Ohio Supreme Court concluded that federal law preempted the Blocked Crossing Statute. However, there were multiple opinions focusing on differing aspects of the Termination Act and the Safety Act. As the petition points out, each of the three opinions received the votes of another justice, meaning there was no majority opinion in State of Ohio v. CSX. The Ohio result thus produces continuing uncertainty about the interaction of the Termination Act and the Safety Act–and the prospect, albeit by a minority in dissent, that the Blocked Crossing Statute should prevail.
Amicus Support: In December 2022, Indiana filed its amicus brief in support of Ohio, joined by eighteen other states. Their brief argues that neither the Termination Act nor the Safety Act preempts anti-blocking statutes, stating that federal authorities have themselves acknowledged leaving anti-blocking laws to states and localities. They point out that states are best positioned to address the varying local challenges presented by blocked crossings around the nation.
Going Forward: The petition in Ohio v. CSX has been before the Court for more than six months and was distributed for Conference in mid-March. It remains to be seen whether this case will be more compelling to the Justices than the aforementioned Tenth Circuit BNSF case.
One change this go-round is that the Court called for the views of the Solicitor General, signaling that there may be interest from at least some of the Justices in this case; while the Court does not have to follow the recommendation of the Solicitor General, it often does.
In the absence of Supreme Court resolution, it appears that state laws governing trains stopped on railroad grade crossings face an uncertain future, given that in several state courts have already declared such laws to be preempted. If the Supreme Court declines to review the lower court decision in this case, Congressional action will be necessary to clear the path.
Congress is also taking action on this issue. The Railway Safety Act of 2023, proposed following the hazardous material spill in East Palestine, Ohio, establishes a study on “blocked highway crossings” to allow the Federal Railway Administration (FRA) to consider the information gathered on blocked crossings in their regulatory actions. This legislation passed the Senate Commerce Committee and now awaits a full vote in the Senate.
As Congressional legislation and Ohio vs. CSX move forward, both offer opportunities to address local concerns on rail safety that should be addressed.
Erich Eiselt is the Assistant General Counsel and Director of Legal Advocacy for the International Municipal Lawyers Association (IMLA). NLC, IMLA, and NACo formed the Local Government Legal Center (LGLC) in 2023, a coalition of national local government organizations to provide education to local governments regarding the Supreme Court.
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