In a spirited exchange nearly eight years ago, Sen. John Thune scoffed at his committee colleagues when they raised concerns that legislation he sponsored would add years of delay for train safety regulations.
At issue was a bill proposed by the South Dakota Republican designed to push back the deadline for the implementation of electronically controlled pneumatic, or ECP, brakes on rail cars carrying oil or other hazardous liquids. The legislation required years of study and new rulemaking.
Thune argued that the technology was untested and that he simply wanted more data before moving ahead with the mandate for electronically controlled brakes, which had been issued in early 2015, during the Obama administration. At the time, the rail industry was booming as it transported fracked oil from North Dakota oil fields.
During the ensuing debate in the Senate Committee on Commerce, Science, and Transportation, Sen. Maria Cantwell, D-Wash., pointed to the increasing frequency of trains carrying highly flammable oil. “For a state that sees three trains now, and will see as many as fifteen on a weekly basis, this is a lot of activity that goes through every major city in our state,” said Cantwell, who called the safety regulations “critical.”
Sen. Joe Manchin, D-W.Va., noted the explosion of CSX rail cars in his state earlier that year, which caused 100-yard-high flames and one injury. “If my derailment would have happened two miles down the track, it would blow up the whole town, lost a whole town. It happened outside. It’s unbelievable we had no loss of life.”
Thune — the former South Dakota railroad director, a close ally of the rail industry, and one of the largest recipients of railroad corporation campaign donations in Congress — was unmoved. “I would pledge to Senator Manchin and my colleagues that there’s nothing in the underlying ECP provision that’s intended to scuttle the adoption of this,” the South Dakota lawmaker replied, referring to the vote on legislation containing the language delaying the safety rule.
Thune voted down a Democratic amendment to nix the delay before moving to a full committee vote. His Senate office did not immediately respond to a request for comment.
Thune’s legislation was part of an industry push to kill the ECP mandate, review of lobbying, congressional, and court records show. Around the same time as he advanced delaying provisions in omnibus transportation legislation, Thune also introduced another bill to entirely eliminate the mandate for implementation of ECP. Following the election of President Donald Trump and with Republican majorities in the House and Senate, the rule was indeed scuttled in 2018. Thune issued a celebratory press release.
The braking technology and other safety enhancements are now in the limelight once again. Rail safety advocates have argued that ECP may have helped prevent the derailment of a Norfolk Southern Railway freight car in East Palestine, Ohio, earlier this month, a disaster that caused a mass evacuation of residents and the release of pollutants into the surrounding area.
The freight cars in the accident did not use the ECP braking technology, though, according to a Biden administration official, they would not have qualified under the 2015 rule — the rule that was subsequently repealed — given that not every car was carrying hazardous materials.
Former regulators and rail workers told The Lever News that the Norfolk Southern trains should have been designated as hazardous given the risks of carrying vinyl chloride, and that ECP would have at least reduced the damage caused by bringing the trains to halt more quickly.
James Squires, president of Norfolk Southern, made clear early on that his company would oppose the ECP mandate. In a presentation to investors on March 4, 2015, Squires boasted that his company was “probably the furthest along in introducing ECP brakes” and cautioned that “like any big tech investment, it takes longer to bear fruit than you think.” The technology introduced new complexity, he said, as he warned that government mandates were on the horizon.
The development of ECP brakes began in the early 1990s, with tests collaboratively conducted by the Association of American Railroads, an industry trade group that represents the largest rail companies, and the Federal Railroad Administration. ECP uses electronic controls to instantaneously apply air-powered brakes uniformly across the length of a train. Studies have shown the brakes can shorten stopping distances by up to 60 percent.
Initially, the rail industry hailed the new development, touting the brakes as a safe way to transport nuclear waste, as DeSmogBlog has documented.
“ECP brakes are to trains what anti-lock brakes are to automobiles — they provide better control,” Joseph Boardman, President George W. Bush’s FRA administrator, exclaimed in 2006. The agency hired consultants to study the braking system, who concluded that they provided “major benefits in freight train handling, car maintenance, fuel savings, and network capacity” that could “significantly enhance rail safety and efficiency.”
But the sudden growth of the American fracking industry, which fueled the demand for freight cars carrying crude oil from fields in North Dakota and other states to ports and refineries around the country, changed the economic equation for the rail industry. The surge in demand meant it would be much more costly for the forced adoption of new safety regulations requiring ECP brakes on rail cars carrying explosive liquids.
By May 2015, when the Obama administration issued its rule following a number of oil train accidents, the industry coalesced in opposition.
Squires, speaking at another investor event in May of that year, confirmed that Norfolk Southern would oppose the ECP mandate. “We believe that the new braking systems are unjustified from a cost-benefit perspective,” said Squires. He noted the rail industry and his company would fight back against the brake technology mandate, “in some form or another … but there’s no question challenges are coming.” (Norfolk Southern did not immediately respond to a request for comment.)
The rail, oil, and chemical industries — including trade groups such as the Association of American Railroads — filed opposition, citing costs, to the Obama administration. The organizations also filed a lawsuit in administrative court and brought an appeal to the District of Columbia Circuit, attempting to overturn the rule. The challenge was mitigated, however, by the Thune legislation that pushed back the implementation.
In 2015 alone, Norfolk Southern retained 47 federal lobbyists and focused on fighting against ECP regulation.
In 2015 alone, Norfolk Southern retained 47 federal lobbyists and focused on fighting against ECP regulation. The company disclosed that it “opposed additional speed limitations and requiring ECP brakes.” Other rail giants, including BNSF and CSX, deployed lobbyists on the regulations as well, records show.
The Association of American Railroads bought online advertising against the rule, and also mobilized its considerable political influence against the rule and in support of Thune’s legislative efforts to undermine it.
Tax records show the rail industry, while it pushed back against the electronic braking requirement, funneled money to nonprofit groups close to legislators, including the Congressional Black Caucus Foundation, the Congressional Hispanic Caucus Institute, and the Republican Main Street Partnership.
After the rule was eventually repealed, meeting notes from Trump administration Transportation Secretary Elaine Chao show a scheduled call with Carl Ice, then president and CEO of BNSF Railway, for him to “thank her for ECP.”
Congress now has another opportunity to probe these issues. In 2015, when the Senate Commerce Committee intervened to block the ECP rules, the chamber was controlled by Senate Republicans. Now, Democrats are in power and one of the most outspoken critics of the rail industry, Cantwell, is chair of the committee.
On Friday, Cantwell announced a probe of Norfolk Southern and the safety issues surrounding the East Palestine derailment. The committee also sent letters to the seven largest railroad CEOs requesting detailed information about safety practices used for transporting hazardous materials.
Norfolk Southern paid out $18 billion in stock buybacks and dividends over the last five years.
Critics of the rail industry in recent days have pointed out that Norfolk Southern paid out $18 billion in stock buybacks and dividends over the last five years, an amount that eclipses the money spent on railway operations and safety.
Other questions remain about safety regulations that could have prevented the East Palestine disaster. The company once employed five senior engineers who specialized in maintaining detectors that prevent derailments. As Freight Waves, an industry outlet, has reported, Norfolk Southern recently eliminated these positions and has lobbied against rules that required railroads to conduct brake tests on rail cars that had not operated for four or more hours.
The Obama-era railroad regulations also included a rule to use freight cars made of special reinforced materials for the transport of oil and hazardous materials, as the New York Times reported. Of the freight cars that derailed earlier this month, three were of the stronger type and were not breached, while one of the freight cars carrying propylene glycol that did not have the enhanced protections was breached.
The rail and chemical industries, as The Intercept has reported, have enjoyed deep connections to lawmakers and federal regulators, a relationship that has helped delay and prevent a raft of safety rules. Over the last two decades, the rail industry has employed lobbyist family members of powerful lawmakers overseeing the rail industry, and consulting firms tied to both parties, including SKDK, the firm founded by Anita Dunn, a senior adviser to President Joe Biden who also served as chief campaign strategist to his 2020 campaign.
The producers of vinyl chloride, one of the chemicals involved in the Norfolk Southern spill, also maintain a special trade group with close ties to Democratic insiders and lobbyists for the Republican Party, including Stuart Jolly, the former national field director for Donald Trump’s presidential campaign.
“Every railroad must reexamine its hazardous materials safety practices to better protect its employees, the environment, and American families and reaffirm safety as a top priority,” Cantwell wrote.