News & Publications

Rail Law Alert No. 5

D.C. Circuit Dismisses PTC Challenge as Unripe

On June 11, 2013, the United States Court of Appeals for the District of Columbia issued a decision dismissing a challenge by the Chlorine Institute (the Institute) to the Federal Railroad Administration’s (FRA) May 14, 2012 final rule (the 2012 Final Rule) promulgating regulations regarding the implementation of the statutorily mandated “positive train control” (PTC) system.  Chlorine Institute, Inc. v. Federal Railroad Administration, No. 12-1298 (D.C. Cir. June 11, 2013).  The D.C. Circuit dismissed the case on the basis that the Institute’s challenge was unripe and thus that it presently lacked jurisdiction to hear the case.  Although the issues raised by the Institute and the Court’s handling of those issues does not affect directly the implementation of PTC by commuter rail operators, we are providing this Alert because PTC and its implementation are front-and-center issues for all commuter rail operators at this time.  Accordingly, any litigation involving PTC presents some level of interest for the passenger rail providers.

PTC is a system designed to prevent train-to-train collisions, derailments, and dangerous accidents involving poison- or toxic-by-inhalation hazardous (PIH) materials.  In 2008, Congress passed the Rail Safety Improvement Act of 2008, Pub. L. No. 110-432 (RSIA), which requires rail carriers and intercity passenger and commuter rail operators to implement PTC on main lines over which intercity or commuter passenger rail operations run or over which PIH materials are transported by December 31, 2015.  In a 2010 final rule on PTC implementation (the 2010 Final Rule), the FRA established 2008 as the baseline year for determining whether a railroad’s main line must be covered by the PTC mandate.  However, the 2010 Final Rule also provided railroads with the opportunity to exclude track from the PTC mandate where the railroad could demonstrate that the track no longer meets the baseline requirements for PTC inclusion as of RSIA’s December 31, 2015 implementation deadline.  Although the 2010 Final Rule required satisfaction of a “two-part test” in order to allow railroads to exclude track from the PTC mandate by the end of 2015, the subsequent 2012 Final Rule replaced this two-part test with a less burdensome standard for exclusion.  The Institute, a trade group representing the chlorine industry, filed suit alleging that the FRA’s elimination of the two-part test injured its members because it would allow railroads to more easily reduce the routes needed to comply with the PTC mandate, thus restricting the transportation of PIH materials, including chlorine products.

The D.C. Circuit did not reach the merits of the case because it found that the challenge was not ripe and that the Court thus presently lacked jurisdiction.  Calling the potential damage to the chlorine industry “speculative” at best, the Court found the Institute’s alleged injury did not rise to the applicable standard of actual or imminent harm.  To the contrary, the Court stated that the effect of the FRA’s regulations on the exclusion of PIH routes from PTC implementation was still largely unknown, as was whether any resulting rerouting of PIH shipments through alternative routes would actually reduce PIH shipments.  The Court concluded that although sufficient injury to the Institute and its members might arise as the PTC implementation process proceeds, at this point the Institute’s challenge was not ripe.

The question presented here, though at first glance of only indirect interest to commuter rail providers, does have some impact on their implementation of PTC.  That is, freight rail partners that have an obligation to install PTC where PIH materials move will not be able to claim that passenger operators should bear the entire cost of the system on those shared corridors.  Because this decision did not reach a decision on the merits, there is technically no impact on the commuter industry.  However, more litigation is sure to follow as implementation plays out.