East Palestine crash prompted rail safety bill. Why it stalled.

When the news broke last February that a train carrying 100,000 gallons of hazardous chemicals had derailed in East Palestine, Ohio, sending black plumes into the sky for days, lawmakers on Capitol Hill sprang into action. Less than one month later, Ohio Democrat Sen. Sherrod Brown introduced the Railway Safety Act in the Senate. 

The bill, which was co-sponsored by Ohio Republican J.D. Vance, as well as two other Democrats and two other Republicans, would “finally hold big railroad companies accountable” said Senator Brown. Among other things, it proposed more detectors to signal when a train’s wheel bearings were overheating, more thorough inspections, and measures to help officials on the ground respond to a derailment more effectively. 

“Congress has a real opportunity to ensure that what happened in East Palestine will never happen again,” said Senator Vance, who grew up in a hardscrabble Appalachian community – an experience he chronicled in his bestselling book, “Hillbilly Elegy.”

Newspaper editorial boards called the bill “smart” and “the right thing to do.” “It is a welcome development to see Republicans and Democrats uniting to push freight rail to change,” wrote The Washington Post. 

Three weeks later, the House of Representatives had its own version of the legislation, spearheaded by two Naval Academy graduates from opposite sides of the political aisle. By May, the Senate committee that oversees transportation approved the bill. Hopes ran high that it would soon come to a vote.

Nine months later, it still hasn’t.

As President Joe Biden makes his first official visit to East Palestine today, what once seemed like a promising bipartisan package of noncontroversial safety measures now appears to be indefinitely on hold. 

This is the story of how a piece of legislation, sparked by disaster, can overcome the partisan divide in Congress, gather enough momentum to appear to be on the verge of passage – and then stall out. It would be convenient to blame it on polarization. Or lobbyists. Or gridlock. But it’s more complicated than that.

Peeling back the layers provides a revealing look at what it takes to reach compromise in Congress on something as seemingly straightforward as protecting communities from toxic train derailments. If all Democrats supported the bill, along with the seven Republican senators who have indicated support, that would still be two short of the threshold needed for passage. And while there’s broad consensus among lawmakers that preventing another East Palestine-type disaster is a worthwhile goal, there’s less agreement over whether this legislation strikes the right balance among safety, cost, and efficiency.

“You want to enhance safety, but you don’t want to create a regulatory burden that actually reduces how much freight can move and make it more expensive,” says Sen. John Hoeven, a North Dakota Republican who says he’s open to supporting the rail safety bill, depending on the final form it takes. “They’re still trying to figure this out.”

How 38 cars went off the tracks

On Feb. 3, 2023, a Norfolk Southern train was traveling westbound through the clear, cold night, when an alarm alerted the three-person crew that a wheel bearing was overheating. The train had passed in three detectors in 30 miles, and records show that the temperature had been steadily rising. 

But the second and third detectors were 20 miles apart, and by the time the train passed the last one, it had far exceeded the temperature threshold for triggering an alarm. As the crew sought to slow down the train, an automatic emergency brake engaged, and 38 cars went off the tracks. Eleven carrying hazardous materials caught on fire, and the flames spread to another dozen cars. Fearing that five cars carrying vinyl chloride could explode, officials intentionally burned off the substance.  

As residents were evacuated, first responders sought to contain the fires without initially even knowing what substances they were dealing with. The Environmental Protection Agency came in to address air, water, and soil contamination. State officials estimated that 38,222 minnows died, along with 5,500 other aquatic animals such as crawfish. No one was killed, but residents complained of feeling sick, even months after they were told it was safe to return. 

As many of East Palestine’s allies see it, the disaster put this small community of 4,700 people – which has a per capita income of $30,000 and a 10% college graduation rate – in an unfair fight against powerful interests with deep pockets. Environmental activist Erin Brockovich has said it reminds her of Hinkley, California, whose residents she famously advocated for in a lawsuit against Pacific Gas and Electric Co. over groundwater contamination.

Rep. Chris Deluzio, the Pennsylvania Democrat who sponsored the House version of the bill, recently told the Pennsylvania Capital-Star that politicians were bending to pressure from the railroads.

“We’re coming up on a year, and I can’t even get the Republican leadership to get us a hearing,” Mr. Deluzio said earlier this month. “They’re doing the bidding of the big railroads here at the expense of the good people I represent and our neighbors in Ohio and folks like us who live close to these tracks all over the country.”

What’s in the bill

The Railway Safety Act would, among other things, add more “hot bearing detectors” along the tracks and improve emergency procedures, so that first responders would know right away what substances they’re dealing with and are better prepared to contain any spills or fires. 

GOP Sen. John Thune, the former state rail director for his native South Dakota, praised those measures in a May 2023 meeting of the Senate Committee on Commerce, Science, and Transportation. He also said some additional inspections could help, but overall he argued that the bulk of the bill would not address the root causes of the crash.

“This bill should have been about safety reforms relevant to the derailment in East Palestine, but now it’s been expanded to a stalking horse for onerous regulatory mandates and union giveaways,” said Senator Thune, who noted that the cost of regulation put railroads out of business in his home state in the 1970s, leading South Dakota to levy a tax on citizens so that the state could get the industry back up and running.

Critics point out that Mr. Thune has been the No. 2 Senate recipient of railroad lobbying dollars since 1990 and once served as a lobbyist for the industry. 

Indeed, from the outset, industry groups urged senators to modify the bill, which went through substantial changes before being passed out of committee. But the railroad industry is pushing for more. A particular point of contention: measures they say are less about ensuring safety than about benefiting unions – a key constituency for Senator Brown, who faces a tough reelection battle in Ohio this fall.

A Bloomberg editorial last summer called the bill a combination of “pre-existing policy preferences repackaged as a response to tragedy” arguing that mandating “pointless” labor costs would hurt railroads’ ability to innovate in ways that could more effectively boost safety. 

Among the provisions that Republicans and rail interests have taken issue with is one that mandates a two-person crew for “high-hazard” trains. Jeff Davis, a senior fellow at the Eno Center for Transportation think tank in Washington, says the railroads see that as “a gratuitous giveaway to the unions who have been advocating the two-person rule since long before East Palestine, and which the railroads say would never pass objective cost-benefit analysis.” 

Moreover, Mr. Davis adds in an email, “Railroads are irate that they just finished spending billions of dollars installing computers on all their trains that apply the brakes in case the human forgets (Positive Train Control), and now they are being told to add an extra human to watch the computer watch the first human.”

Advocates for a two-person crew, with a conductor as well as an engineer, liken the safety benefits to those of the airplane practice of having a pilot and co-pilot.
According to an analysis by Public Citizen, Norfolk Southern increased its federal lobbying budget by 30% last year to $2.3 million, retaining 41 federal lobbyists, including more than two dozen former staffers in Congress, the White House, and various federal agencies. 

Moving forward 

While the bill was stalled and being scrutinized by lobbyists, many of the parties involved in the derailment and its aftermath continued to move forward. 

The railroad industry says it has been independently taking steps to address some of the problems exposed by what happened in East Palestine. According to the Association of American Railroads, the industry increased detectors on key routes, lowered the temperature threshold for requiring inspections or removal of a car with hot wheel bearings, and partnered with state fire associations to expand access to AskRail, an app 2.3 million first responders can now check to determine what type of hazardous material a train is carrying. 

Norfolk Southern has continued to pay out, announcing a 33% drop in fourth-quarter profits and estimated costs of more than $1.1 billion related to the derailment – including $836 million for environmental-related costs and $381 million for legal costs and community assistance. The company also says it had spent $1 billion on infrastructure in 2023, including installing 108 hot box detectors.

The EPA has continued to visit East Palestine, issuing monthly updates on clean-up activities, which to date have included removing 350 million pounds of contaminated soil for off-site disposal and taking thousands of air and water samples.

Senator Vance returned to East Palestine on the one-year anniversary of the derailment, donning a hard hat as he toured the clean-up area and calling on the Biden administration to conduct long-term health screening for residents. And Senator Brown has continued to visit not only East Palestine but also other communities around Ohio that were affected by Norfolk Southern derailments. He says he is still pressuring the Senate to bring his bill to a vote.

“We aren’t going to let them dismiss another vibrant, heartland town as collateral damage,” said Senator Brown last month on the Senate floor. “Each one of these communities is another reason why we must get this commonsense bill across the finish line and hold Norfolk Southern accountable.”

In December, he finally got the legislation placed on the legislative calendar, but there’s still no guarantee when – or if – it will come up for a vote. 

The Railway Safety Act is currently one of 334 pieces of legislation waiting to be brought to the floor.