East Palestine Part 2: Politics and the Road Ahead

Continued from Part 1: The Causes

The Politics: Continued Warfare or a New Age of Bipartisanship?

The politics of the East Palestine rail disaster are fascinating.

If you follow the right-wing MAGA-verse on Twitter and Fox News (and I don’t recommend it!), you’d “learn” that that East Palestine was caused by a gay Transportation Secretary who cares more about “wokeness” than the white citizens of East Palestine, and a senile President who cares more about unworthy Ukrainians that Trump-loving East Palestinians.

The main focus of the MAGA-verse has been on attacking Transportation Secretary Pete Buttigieg (rather than Norfolk Southern) and attacking Biden’s incompetence, rather than Precision Scheduled Railroading. And pushing the myth that the administration ignored the disaster because the town was made up of a bunch of white Trump-voters and therefore not worth the attention of the Biden administration.

The main focus of the MAGA-verse has been on attacking Transportation Secretary Pete Buttigieg (rather than Norfolk Southern) and attacking Biden’s incompetence, rather than Precision Scheduled Railroading.

If you listen to Marjorie Taylor Green, Lauren Boebert, Tucker Carlson, JD Vance and Don Jr. you’d  believe that Republicans were always concerned about environmental disasters and if East Palestine was populated by African Americans or Latinos, the Biden administration would have been all over it. But no, it’s the forgotten white Trump voters who suffer from the Biden administration’s environmental failures.

The fact, of course, is that African Americans and Latinos are more likely to live near chemical facilities than their white people.

Numerous studies have found that low-income communities, including white ones, suffer disproportionately from air pollution. But within that demographic, poor Black communities have by far the greatest risk of premature death from particle pollution.

The argument that poor white communities are “forgotten” compared with the lavish attention bestowed by the media and politicians on Black inner-city areas is also a distortion. Last August the 79% Black city of Jackson, Mississippi, grappled with a drinking water crisis that had been brewing for years yet largely ignored by the media as a whole. Media Matters found that one TV channel stood out for the relatively paltry six minutes it devoted to the immediate aftermath of the catastrophe – Fox News.

African Americans are 75 percent more likely to live near industrial chemical facilities than the average citizen, according to a national report by the Environmental Justice and Health Alliance for Chemical Policy Reform. The percentage of Latinos living in proximity to dangerous chemical plants is also shockingly high, at 60 percent more than the national average.

African Americans are 75 percent more likely to live near industrial chemical facilities than the average citizen. The percentage of Latinos living in proximity to dangerous chemical plants is also shockingly high, at 60 percent more than the national average.

Have we seen MAGA outrage about these facts? Or even recognition?

And where are the Republicans after disasters like the huge explosion at a petrochemical plant in Port Neches, Texas in November 2019 which led to an evacuation of a half-mile radius and the force of the explosion blew out windows on residences, with others downwind of the place told to shelter in place?

I don’t recall them berating the Bush administration for not paying attention after the 2005 BP Texas City explosion that killed 15 workers? Or did they even notice the 2013 West Texas fertilizer plant explosion that killed 15 people and destroyed much of the the town of West, Texas?

There’s also no truth that the Biden administration ignored the problem until Donald Trump swooped in with gallons of Trump water.

While DOT — and specifically the FRA —  is charged with regulating and enforcing rail safety, and specifically with preventing incidents like this, the immediate response to chemical disasters lies not with DOT, but with the EPA. And EPA was there within hours of the derailment:

The E.P.A. has had a presence on the ground in East Palestine since 2 a.m. on Feb. 4, hours after the crash, to help state and local authorities with response efforts, according to an agency spokeswoman. By the end of that day, the E.P.A. had 17 coordinators and contractors performing air quality monitoring and testing, had brought in a mobile analytical laboratory to test samples and had deployed a special aircraft to assess emissions releases.

I will give them one thing. Buttigieg could have been much more visible and until last week, DOT had given no sign that it was attempting to restore the rail safety regulations that Trump rescinded or to strengthen the rules that Obama watered down.

Also, despite the fact that Buttigieg and his agency do not have a primary role in the cleanup or investigation, this incident could  have been a prime opportunity for someone like Buttigieg to immediately take the leadership on calling for stronger rail safety regulations and focusing on who’s really to blame: Norfolk Southern, Republican regulatory cutbacks and Precision Scheduled Railroading which is resulting in burned out workers, longer and heavier trains and inadequate maintenance.

As it was, it took weeks for him to step up, and it wasn’t exactly good optics to arrive in East Palestine the day after Donald Trump.  And he brought no water.

Painted into a Corner?

I’ve been looking forward to seeing how the MAGA outrage of this incident plays out. And it is, indeed interesting.

First, one good thing about it is that it has prolonged the attention of the media and politicians on infrastructure, transportation and environmental problems, and the need for strong regulations to prevent these things from happening. Usually, this type of incident, especially when there are no immediate fatalities, gets forgotten after a few days — as does the push for stronger regulatory protections.

But the more significant effect of the Republican attacks on Buttigieg and the Biden administration is the implicit recognition that the federal government — and stronger regulations – have an important role in preventing these incidents. The logical conclusion then is to call for the DOT to play a stronger role in ensuring rail safety.

But the more significant effect of the Republican attacks on Buttigieg and the Biden administration is the implicit recognition that the federal government — and stronger regulations – have an important role in preventing these incidents. The logical conclusion then is to call for the DOT to play a stronger role in ensuring rail safety.

Can we expect them to call for stronger regulations and increased funding for EPA, DOT and OSHA?  Will they call on the rail industry to invest more in safety and less in stakeholder profits?

I admit that I’ve been skeptical. On the other hand, a couple of weeks ago, the newly elected Republican Senator from Ohio, J.D. Vance — one of the few MAGA Senate candidates elected in the recent mid-terms — along with Senator Marco Rubio, sent a letter to Buttigieg asking what DOT is doing to “preempt or protect against some of the “reduced performance and resilience” that have reportedly resulted” from Precision Scheduled Railroading, and added that “it is not unreasonable to ask whether a crew of two rail workers, plus one trainee, is able to effectively monitor 150 cars.”

Good question

Bipartisan Legislation: A Pandora’s Box?

And imagine my surprise when I read in this press release this morning that Senators Sherrod Brown (D-OH) and JD Vance (R-OH), along with U.S. Senators Bob Casey (D-PA), Marco Rubio (R-FL), John Fetterman (D-PA), and Josh Hawley (R-MO) will introduce the bipartisan Railway Safety Act of 2023 to prevent future train disasters.

The Railway Safety Act of 2023 would:

• include new safety requirements and procedures for trains carrying hazardous materials like vinyl chloride,
• require rail carriers to provide advance notification and information to state emergency response officials about what they are transporting,
• mitigate derailment risk with rules for train size and weight,
• include measures to reduce the risk of wheel bearing failures,
• include requirements for well-trained, two-person crews aboard every train,
• substantially increase the maximum fines USDOT can issue for safety violations,
• expand HAZMAT training grants for local law enforcement and first responders through increased registration fees paid by Class I railroads,
• provide funding to the Federal Railroad Administration for research and development grants regarding wayside defect detectors and other rail priorities,
• provide funding to the Pipeline and Hazardous Materials Safety Administration for expenses related to developing stronger tank car safety features

Many of the new regulations required in the bill are vague and it includes some strange items. For example, on one hand it DOT is required to consult with rail companies and unions concerning audits of Federal rail car inspection programs, but then requires DOT to notify Congress if rail companies or unions are not cooperating with the audits.

Senator Brown remarked in his statement that “It shouldn’t take a massive railroad disaster for elected officials to put partisanship aside and work together for the people we serve – not corporations like Norfolk Southern.”

But, of course, he’s wrong. Massive disasters are exactly what it takes to make major changes that serve the people they serve.

It’s unfortunate, but true.

I’m not holding my breath that this legislation will pass the Senate in one piece after the railroad company lobbyists have a chance to gnaw on it for a while, nor that it will make much headway in the MAGA-controlled House that seem obsessed with messaging over substance.

And time is of the essence: These initiatives tend to lose their urgency as time passes and the regulated industry has time to make “reasonable” changes, to “strengthen the supply chain,” maintain “efficiency”  and pass “cost-benefit tests.”

Will Republicans realize to their shock and horror that they’ve opened up a Pandora’s Box of government activism? And where will it stop? If we need government activism and stronger rail safety regulation to protect air, water and health of the East Palestine’s of this country, maybe we need stronger regulations to protect the wages, pension or health and safety of workers of East Palestine? 

And how long will it take Republicans realize to their shock and horror that they’ve opened up a Pandora’s Box of government activism? Where will it stop? If we need government activism and stronger rail safety regulation to protect air, water and health of the East Palestines of this country, maybe we also need stronger regulations to protect the wages, pensions or health and safety of workers of East Palestine?

What will happen to the anti-regulatory religion that Republicans have clung to for decades? How will this undermine their anti-regulatory gospel? What will become of Steve Bannon’s vow “deconstruct the Administrative State” — ensuring  that corporate America’s quest for ever higher profits and control over our lives is not hindered by any of these damn government regulatory and enforcement agencies that Congress created when the liberals ruled the earth?

It’s a slippery slope.

But don’t get me wrong. I’m fully prepared to be pleasantly surprised that the bipartisan outrage we’ve seen from Republicans might lead to real change.

Dueling Congressional Investigations

There are two sides of Capitol Hill in Washington DC, generally known as the Senate side and the House of Representatives side.

These days, it would be more appropriately labeled the Sane Side and the Crazy Side.

On the side where sanity still reigns, in addition to the bipartisan legislation described above, Senator Maria Cantwell (D-WA), Chair of the Senate Commerce Committee, announced an investigation  on February 17 into “the current state of the safety of hazardous materials transported by rail.”

Cantwell has requested information about PSR, braking systems,  railcar inspections, track side defect detectors, emergency preparedness and response and train characteristics from Norfolk Southern, Burlington Northern Santa Fe (BNSF), Canadian National, Canadian Pacific, CSX, Kansas City Southern, and Union Pacific

In her letter to the railroads, Cantwell expressed concern that

Over the past five years, the Class I railroads have cut their workforce by nearly one third, shuttered railyards where railcars are traditionally inspected, and are running longer and heavier trains. While some of these changes may be an improvement, they also come with new risks that current federal regulations may not consider. Thousands of trains carrying hazardous materials, like the one that derailed in Ohio, travel through communities throughout the nation each day.

Meanwhile, over on the crazy side, what are House Republicans doing?

Well don’t hold your breath that Kevin McCarthy and Jim Jordan will decide to throw aside crucial investigations of Hunter’s laptop or Tony Fauci’s crimes against humanity to investigate why the railroads are blowing up America.

But House Republicans have launched an investigation.

An investigation into what?

Could it be an investigation into the rail safety practices of Norfolk Southern and other railroads? Or an investigation into the adequacy of rail safety regulations and how they are enforced?

Not exactly.

Perhaps an investigation into what caused the derailment? An investigation into Precision Scheduled Railroading and its effect on rail safety?

Or maybe even an investigation into emergency preparedness and response on the rails?

Nope

Instead of investigating the causes of the derailment, House Republicans are investigating… Pete Buttigieg: “Oversight Republicans Launch Investigation into DOT Secretary Buttigieg’s Failure to Promptly Respond to Ohio’s Train Derailment Catastrophe.”

Instead of investigating the causes of the derailment, House Republicans are investigating Buttigieg

On February 24, the Republican-led House Committee on Oversight and Accountability sent a letter to Buttigieg demanding that DOT “provide an explanation for its leadership’s apathy in the face of this emergency.”  The letter questions the decision to stage a “controlled release” of vinyl chloride, citing one hazardous materials specialist who explained, “We basically nuked a town with chemicals so we could get a railroad open.”

And the letter goes on to criticize Buttigieg and the recently passed infrastructure bill.

As Secretary of Transportation, you must provide transparency to the American public on this matter. Instead, you have attempted to blame others for infrastructure that is within DOT’s ambit of responsibilities. Under your leadership, DOT supported President Biden’s Infrastructure Bill, which included billions of dollars devoted to revamping America’s railways in an effort to make them safer and more efficient.1

As with all Congressional oversight letters, the Committee requested a trove of documents and records. Most amusing, however, was was the request for

All documents and communications since January 20, 2021, regarding any change to DOT train maintenance and procedures, including but not limited to those for trains carrying hazardous materials; [emphasis added]

How convenient. They apparently have no interest in any regulatory rollbacks that may have occurred prior to Biden’s inauguration. Unless, possibly, I missed the letters where they’re also demanding records from Donald Trump and his Transportation Secretary Elaine Chao.

The letter to Buttigieg also requested “All documents and communications regarding NTSB’s progress on the cause of the derailment.” prompting Buttigieg to remind the Committee Chair James Comer (R-KY) that the NTSB is not part of DOT.

Buttigieg Gets Serious

Prior to the derailment, the Biden administration had made no move to reinstate the original watered down brake rule rescinded by Trump, or to expand the kinds of trains subjected to tougher safety regulations. But on February 23, almost three weeks after the derailment, Transportation Secretary Buttigieg issued a statement calling on the rail industry to improve safety.

“Profit and expediency must never outweigh the safety of the American people,” said U.S. Transportation Secretary Pete Buttigieg. “We at USDOT are doing everything in our power to improve rail safety, and we insist that the rail industry do the same – while inviting Congress to work with us to raise the bar.”

The reforms demand that railroads take several actions, including requiring the owners of tank cars to expedite the phase-in of safer (DOT 117) tank cars and to offer paid sick leave for rail workers; call on Congress to increase maximum fines that USDOT can issue to rail companies for violating safety regulations up from the current maximum fine of $225,455; and state that USDOT will advance the train crew size rule and initiate a focused safety inspection program on routes over which trains with large volumes of hazardous material travel.

“Profit and expediency must never outweigh the safety of the American people” — Secretary of Labor Pete Buttigieg

Specifically, DOT announced that it would advance the Train Crew Staffing Rule, which will require a minimum of two crewmembers for most railroad operations, use infrastructure funding to fund projects that modernize and improve rail tracks, eliminate at-grade rail crossings and improve rail safety, and pursue further rulemaking on high-hazard flammable trains (HHFT) and electronically controlled pneumatic brakes (ECP).

Buttigieg also called on Congress to increase the maximum fines that USDOT can issue to rail companies for violating safety regulations, expand and strengthen rules governing high-hazardous shipments, speed up the phase-in of safer (DOT 117) tank cars to carry hazardous materials (the current deadline is 2029) and increase funding to expand hazardous materials training for first responders.

Interestingly, Buttigieg also called on Congress to follow through “on new bipartisan support to modernize braking regulations and increase the use of electronically controlled pneumatic brakes (ECP),” which Republicans strongly opposed during the Obama administration.

I’m looking forward to the support of Kevin McCarthy and Marjorie Taylor Greene on that.

What Is To Be Done?

As I mentioned above, we’re in a period where public attention demands that something be done. But that attention, and that pressure from the public will fade. The rail companies know this and they’ll likely lie low for a while until the public’s attention passes onto other crises. So it’s important that the activists and the administration act fast and keep the pressure on.

Root Cause Investigation

A thorough root cause investigation needs to be conducted to determine the systemic (not just direct) causes of the East Palestine disaster. That means going deep than just determining why the wheel bearing may have overheated. It means looking at what role Precision Scheduled Railroading may have played in any deterioration of Norfolk Southern’s preventive maintenance and inspection procedures, what role heavier and longer trains may have played in the derailment, what role deregulation in the Trump administration and weakening regulations in the Obama administration may have played.  An inquiry must look at what impact stock buybacks and profit maximization schemes have on rail safety.

Is the NTSB equipped to conduct such an investigation? Unlikely. Congress will also investigate, but it’s unlikely that the conclusions will win bipartisan support even in the Senate. And the House has yet to show any seriousness about anything.

What is likely needed here is an independent commission of inquiry.  Although the prosecutors that blamed the Lac Megantic engineer and other crew for the incident apparently didn’t read it, the Transportation Safety Board of Canada conducted a thorough 181 page investigation of that incident.  We shall see how deep the NTSB goes, but Congress or the White House should be ready to establish an independent commission of inquiry if the NTSB investigation doesn’t go deep enough.

Legislation and Regulation

Laws need to be passed, and regulations need to be issued to ensure rail safety in this country. Regulations take a long time. Happily, most agencies don’t take as long as OSHA to issue new regulations, but it still takes time.  Congress can help by passing laws that speed up the regulatory process. Passage of the The Railway Safety Act of 2023  described above would go a long way in that direction (depending on what’s in the actual final bill.) But then the hard slog of the regulatory process begins, with multiple opportunities to weaken the language and slow things down.

High on the list of new requirements must be mandating ECP braking systems on any trains that carry hazmat, minimum two crew members on every train, limits on train length and weight, increased maintenance of rail cars and tracks, more frequent inspections and other recommendations that come out of an NTSB (or another) investigation.

And the penalties for violating rail safety laws and regulations need to be significantly increased to the point where they can make a real impact on the giant rail companies.  Criminal penalties should also be available for repeat violations and violations that cause deaths or major contamination of the environment.

Less (Hazmat) Is More (Safety)

One way to make the rails safer is to make the rails safer: better brakes, stronger rail cars, shorter trains, etc.

But another, more effective avenue to to simply stop carrying so many hazardous materials. If the trains aren’t carrying hazmat, then derailments won’t cause catastrophes. But how does that work?  Some substances, like crude oil, can be transported through pipelines, but those have serious safety and environmental problems.

Trucks are not only much more expensive, but ou highways are far less safe than our railroads and more likely to pass through residential communities and densely populated urban areas.

“Trains carrying hazardous bulk cargo are like rolling chemical plants without fencing or security.” — Rick Hind

So how else can hazmat get to where it needs to go?

Maybe it doesn’t need to go there in the first place.

The solution is be obvious.

The best way to transport less hazmat is to use less hazmat.

Rick Hind, former legislative director at Greenpeace USA, characterizes trains as “rolling chemical plants without fencing or security” and points out that EPA is currently working on modernizing its Risk Management Program which is designed to protect the public from chemical releases. EPA is considering requiring chemical companies to evaluate inherently safer alternative chemicals and processes to replace more hazardous chemicals and processes.

“If they prioritize hazard reduction at the plant level, that will also reduce the amount of hazardous rail cargo…but will the EPA?” Hind asks.

The current EPA proposal is weaker than environmentalists want (and stronger than the industry wants). It does not mandate safer alternatives, but only requires a small minority of chemical plants to consider safer alternatives.

Ultimately, using less dangerous chemicals in safer chemical processes is the only route to safety for the millions of people living near train tracks and chemical facilities.

Public Ownership of the Railroads

Railroad Workers United, an inter-union, cross-craft solidarity “caucus” of railroad workers, and their supporters, from all crafts, all carriers, and all unions across North America, is advocating for public ownership of the nation’s railroads “since the North American private rail industry has shown itself incapable of doing the job.”

While the rail industry has been incapable of expansion in the last generation, while it has become more and more fixated on the operating ratio to the detriment of all other metrics of success, Precision Scheduled Railroading (PSR) has escalated this irresponsible trajectory to the detriment of shippers, passengers, commuters, trackside communities, and workers. On-time performance is in the toilet, shipper complaints are at all-time highs. Passenger trains are chronically late, commuter services are threatened, and the rail industry is hostile to practically any passenger train expansion. The workforce has been decimated, as jobs have been eliminated, consolidated, and contracted out, ushering in a new previously unheard-of era where workers can neither be recruited nor retained. Locomotive, rail car, and infrastructure maintenance has been cut back. Health and safety has been put at risk. Morale is at an all-time low. The ongoing debacle in national contract bargaining sees the carriers – after decades of record profits and record low Operating Ratios – refusing to make even the slightest concessions to the workers who – contrary to what the Class Ones may state – have made them their riches.

I wouldn’t put much (any) money on that ever happening in this country, but it’s not totally far-fetched.  Railroads are government run (and run well) in many countries.  During WWI, the railroads in the U.S. were temporarily placed under public ownership and control. And, of course, we all drive on publicly owned roads and highways in this country. That seems to work fairly well.

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The bottom line is that advocates and the Biden administration need to work hard and quickly to make the changes that are needed. We can’t forget East Palestine — nor the thousands of other chemical releases that put communities at risk every year. Most of those are small, and gather little press attention. Advocates and journalists need to ensure that these events are note, that the people affected every day are not forgotten — where ever they live and who ever they vote for.

The alternative is not just more East Palestines, but more Lac Megantics. Or worse.