Read our Letter to the Dept. of Homeland Security

April 21, 2005

Secretary Michael Chertoff
U.S. Department of Homeland Security
3801 Nebraska Avenue, N.W.
Washington, D.C. 20528

Dear Secretary Chertoff;

We understand that the Bush administration today will file papers in federal court in support of CSXT railroad’s lawsuit to overturn the District of Columbia’s Terrorism Prevention in Hazardous Materials Transportation Emergency Act.  As the new Secretary of Homeland Security we urge you to reverse this policy and instead focus exclusively on your constitutional duty to uphold the national interest.

On Monday, April 18, U.S. District Judge Emmet G. Sullivan denied all five motions by CSXT in a strongly worded 76-page decision.  His decision noted a complete absence of federal regulatory action three-and-a-half years after 9/11, and pointed out that the National Strategy for the Physical Protection of Critical Infrastructure and Key Assets, signed by President Bush in February, 2003“preserves a limited role for states to act to protect public safety and security.”

Judge Sullivan also found the closed-door April 4, 2005 testimony of the federal government’s rail security experts unconvincing, “Due to the non-specific nature of the testimony, and the fact that at this stage it remains untested, uncorroborated and unsubstantiated, the information is of limited evidentiary significance…”  He added that the federal government’s alleged rail security plan for the District “has never been submitted to the Court for its review…”

With regard to CSXT’s claim of “operational and financial burdens” imposed by re-routing ultra-hazardous cargoes around D.C., Judge Sullivan concluded that the District’s statute, “will not result in burdens on CSXT that would rise to the level of irreparable harm.”  He dismissed the factual dispute between CSXT and the District over what portion of its cargo might be affected.  The dispute ranged from 0.03 percent to only 2.3 percent of CSXT’s cargo - an insignificant impact regardless of whose numbers are used.

Ultimately two overriding factors guided Judge Sullivan’s decision:

The first was the magnitude of a terrorist attack. “A July 2004 study by the Homeland Security Council estimated that an attack on a chlorine gas facility in an urban area could result in 17,500 deaths, 10,000 severe injuries, and 100,000 hospitalizations.”  He also cited the U.S. Naval Research Laboratory’s estimate that “an attack on a chlorine railcar, during a political event or celebration on the National Mall, could kill or seriously injure up to 100,000 people in the first half hour.”

The second was the failure of the federal government to take adequate action.  He referred to the sworn testimony of Richard Falkenrath, former Deputy Homeland  Security Advisor to the president, saying that the federal government has “essentially done nothing” in this area.

The overwhelming danger led the judge to take a dim view of CSXT’s “predictions of increased costs.”  He said, “These burdens pale in comparison to the potential devastation predicted to occur in the even of a terrorist attack on a railcar transporting hazmats in the Nation’s Capital.  Given these competing interests, the balance of equities clearly favors the District of Columbia and its residents.”

Only after the March 11, 2004 terrorist attacks on commuter trains in Madrid did the federal government begin to take this vulnerability seriously.  In separate letters on April 6 and July 2 2004, Transportation Security Administrator David Stone, assured Greenpeace that a multi-agency working group was “established to explore and determine solutions in securing the District of Columbia rail corridor….Upon closure of this project, a written report will be drafted…The report will serve as the baseline for shaping national policies in the transport of hazardous materials for other high rail traffic areas.” However, to this date no report or solutions have ever been issued or proposed.

More recently, the District of Columbia consistently offered to work with the federal government during the court proceedings.  However, the judge noted that CSXT and the federal government refused to “even discuss any framework for a possible settlement.”  He concluded, “It is unfortunate that the time, energy and expense that could have been spent making this city safer will instead be expended in litigation.”

It is hard to imagine a clearer message than Judge Sullivan’s April 18 opinion.  The federal government must abandon its stubborn support of unenforceable voluntary measures and embrace a policy that eliminates this vulnerability the way the District intends.   We look forward to your immediate attention and action on this urgent matter.

Sincerely,

Rick Hind
Legislative Director, Toxics Campaign