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— Author: Justin Mikulka
The federal agency overseeing the safe transport of hazardous materials released a stunning explanation of its May 11 decision striking down a Washington state effort to regulate trains carrying volatile oil within its borders. A state cannot use “safety as a pretext for inhibiting market growth,” wrote Paul J. Roberti, the chief counsel for the Pipeline and Hazardous Materials Safety Administration (PHMSA).
The statement appeared in the Trump administration’s justification for overruling Washington’s oil train regulation, which was challenged by crude-producing North Dakota and oil industry lobbying groups. The Washington rule seeks to limit oil vapor pressure unloaded from trains to less than 9 pounds per square inch (psi) in an attempt to reduce the likelihood that train derailments lead to the now-familiar fireballs and explosions accompanying trains transporting volatile oil.
Roberti wrote: “Proponents of the law insist Washington State has a legitimate public interest to protect its citizens from oil train fires and explosions, but in the context of the transportation of crude oil by rail, a State cannot use safety as a pretext for inhibiting market growth or instituting a de facto ban on crude oil by rail within its borders.”
With this statement, PHMSA is codifying what has been clear for some time at the regulatory agencies responsible for overseeing the transportation of hazardous materials by rail: that is, profits take priority over safety.
Rail Industry ‘Pre-emption’ and Safety Under Trump
A year ago, the U.S. Department of Transportation (DOT), PHMSA‘s parent agency, invoked the same legal argument, known as “pre-emption,” to overrule state efforts to require at minimum two-person crews for operating freight trains. As part of the explanation for that decision, the DOT‘s Federal Railroad Administration announced that it was adopting a policy of deregulation.
“DOT’s approach to achieving safety improvements begins with a focus on removing unnecessary barriers and issuing voluntary guidance, rather than regulations that could stifle innovation,” wrote the agency.
A regulatory agency announcing a broad deregulatory agenda was shocking. However, this latest move openly declares that, while Washington state may have an interest in protecting its citizens from “oil train fires and explosions,” that concern should not get in the way of the oil industry’s ability to ship more of its product by rail through the state, apparently even if that increases the risk of oil train fires and explosions to Washington residents. This logic reaches a new level of prioritizing profits over people as regulatory practice.
Historically, or at least, theoretically, government has based regulations on cost-benefit analyses, weighing the costs of complying for the regulated entities against the benefits, such as lives saved or accidents prevented, as a result of the new rules. Here, the DOT‘s new regulatory approach appears to weigh primarily the benefits for the rail and oil industries while downplaying the potential cost in human lives.
However, these industries did argue about costs to get to this point. As DeSmog has repeatedly documented, lowering the vapor pressure of oil below 9 psi is possible through a process called stabilization, which makes oil less volatile and less likely to ignite. Conditioning the oil in this way before loading on trains would require the oil industry to invest in stabilization equipment, which the industry has argued is not economically feasible.
In 2014, Myron Goforth, the president of Dew Point Control LLC, a manufacturer of stabilization equipment, put the situation in simple terms. “It’s very easy to stabilize the crude — it just takes money,” Goforth told Reuters. “The producer doesn’t want to pay for it if he can ship it without doing it.”