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The Next Alleged Environmental Threat: Coal Falling off Trains

Proponents of climate change legislation have yet to achieve success in Congress. Numerous cap and trade bills, carbon tax proposals, climate treaties, and most recently the Senate’s Green New Deal have all failed to become law. But in the absence of any new authority to target greenhouse gases, climate crusaders are repurposing older statutes into climate policy tools, even though they were never intended for that purpose.

These attempts to fit a square peg in a round hole include some of the Obama administration’s most costly and complicated regulations, such its Clean Power Plan for coal fired electric generation and the first-ever targeting of greenhouse gas emissions from cars and trucks, both done pursuant to the 1970 Clean Air Act. The Trump administration has wisely chosen to reconsider many of these problematic rules.

The 1972 Clean Water Act was also drafted into the climate wars by the previous administration and environmental groups, with its provisions being reinterpreted to target coal mining, coal export facilities, and even the transport of coal by train.

Small amounts of coal fall off train cars in transit and some ends up in rivers and streams adjacent to the tracks, but nobody ever thought of it as a Clean Water Act violation until recently. In the 2016 case of Sierra Club v. BNSF Railway, a federal district judge agreed with environmental litigants that it may come under Clean Water Act jurisdiction and could thus be subject to regulation and/or permitting requirements—as well as hefty penalties for any violation.

Doing so could render the transport of coal by train prohibitively expensive, so the Association of American Railroads (AAR) and others are fighting back. In its petition before the Surface Transportation Board, AAR claims that the Interstate Commerce Commission Termination Act of 1995 (ICCTA) preempts the Clean Water Act in such matters. AAR points as precedent to an analogous Surface Transportation Board decision in 2014 that the ICCTA may take precedence over the Clean Air Act regarding emissions from idling locomotives.

The environmentalists’ goal, of course, is to add yet one more impediment to the use of coal by raising the cost of its transport. But in so doing, they are once again improperly using a decades-old statute for the novel purpose of achieving climate policy aims that were rejected by Congress. The Surface Transportation Board is taking comment on AAR’s petition until April 24.