The trains move in mysterious ways. That’s what state transit authorities in Colorado say, anyway. They even invoke the Almighty to explain the power of rail. “You know how the saying goes: There’s the railroads, and then there’s God,” said Elise Thatcher, a communications manager for the Colorado Department of Transportation. Further confirmation of the celestial hierarchy came a day later: “It’s God, the railroads, and then everybody else,” said Pam Fischhaber, deputy director of rail safety at the Colorado Public Utilities Commission.
What they were referring to was the remarkable power — and opacity — of the rail industry. “I cannot tell you on any given day, on any given line, what’s being shipped,” said Fischhaber.
That cloak of unknowing has a long history. CDOT Communications Director Matt Inzeo said some of the laws governing rail predate the state of Colorado itself. The U.S. Constitution is at the bedrock: Railroads are considered a form of interstate commerce immune to local interference that might compromise the efficiency of their operation. And access to information is often a casualty of rail’s privileged status. While timely freight reporting is available to federal agencies and to the state of Texas, which passed a 2006 statute requiring advance notification of dangerous loads, most states are like Colorado — in the dark.
“It is our business if we’re expected to respond to an emergency.”
The subject of rail law is arcane even by legal standards. So much so that it took February’s toxic train derailment in East Palestine, Ohio, to blow the dust off the pages and expose the reality of devastating crashes. When an accident occurs on a national network, local communities are forced to live with the fallout. In Colorado, where just two companies, Union Pacific and BNSF Railway, preside over 2,600 miles of track webbed through major cities, towns and mountains and alongside critical waterways, derailments can happen anywhere. With fierce debate over a proposed crude oil route along the Colorado River and scrutiny of the rise in derailments involving hazardous cargo, some critics are challenging the lack of transparency and the risks that come with it.
Proposed federal legislation could clarify what, exactly, moves on trains. The RAIL Act, brought forward by Ohio Rep. Bill Johnson, R, would mandate the reporting of hazardous cargo to state agencies across the country. Craig Hirst, manager of CDOT’s freight mobility and safety branch, said the act could help Colorado’s hazardous materials teams train for and respond to the worst. At the moment, his branch and the 28 state troopers who specialize in hazmat cleanup are stuck “reacting” to accidents.
“The hardest part is we don’t know what’s passing through or when,” Hirst said. “(The railroads) will argue that ‘we’re a private company and it’s none of your business.’ We would push back on that and say it is our business if we’re expected to respond to an emergency.”
Not every mode of transportation is so mysterious, however. Hirst also oversees trucking safety, an area where the state government does have some control, though the “real-time picture isn’t great there either,” he said. But unlike the trains, big rigs are subject to rigorous state permitting processes, and those permits can be pulled for any number of safety violations. Trucking permits, issued on an annual basis or at checkpoints along the state line, require disclosure of vehicle contents. Hirst added that the type of cargo hauled by trains is often far less diluted — and far more dangerous — than that carried by trucks.
University of Delaware professor Allan Zarembski, who studies railway engineering and safety, agreed with Hirst. “This shouldn’t be a black box,” said Zarembski. “There’s value in first responders on a route knowing what’s going on.” He predicted that the East Palestine derailment will catalyze demands for transparency in the industry.
Whether or not the RAIL Act passes, one attorney who represents railroad companies in the West and preferred to remain anonymous, said Colorado should consider a statute like Texas’. “Why not try it? If it works in Texas, why wouldn’t it work in Colorado?” they said.
Samuel Shaw is an editorial intern for High Country News based in the Colorado Front Range. Email him at samuel.shaw@hcn.org or submit a letter to the editor. See our letters to the editor policy. Follow Samuel on Instagram @youngandforgettable.
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