Q. What action are the organizations taking?
For the past several years, Earthjustice and its partners have advocated for strong federal action to protect public safety and the environment from unsafe rail cars carrying highly flammable materials like crude oil. On May 1, 2015, the U.S. Department of Transportation finally released its long-overdue rule intended to reduce risks from derailments and explosions in rail line communities.
The rules are not just a significant disappointment to communities that put their hopes in the Obama Administration to address these grave risks. They also fail the most basic of legal tests. By leaving dangerous tank cars on the rails for years to come and shielding critical information from the public, the Administration has violated its duty to keep the public safe.
Accordingly, on behalf of eight conservation and citizen safety groups, Earthjustice filed a lawsuit on May 14, 2015, in the Ninth Circuit Court of Appeals challenging the new rule. The lawsuit will focus on the extensive phase-out time—up to ten years—for transition to new, safer tank cars, as well as numerous exceptions that allow dangerous materials like Bakken crude and tar sands bitumen to be carried in dangerous tank cars forever.
Q. What actions are have these groups previously taken?
In July, Earthjustice filed a formal legal petition with the U.S. Department of Transportation (“DOT”) on behalf of Sierra Club and Forest Ethics demanding that the agency issue an emergency order prohibiting the use of some of the most unsafe rail cars—known as DOT-111s—to carry Bakken crude oil and other similarly explosive crudes.
The petition came in response to the huge volumes of explosive crude oil that continue to travel through the nation’s communities in unsafe rail cars and a series of catastrophic accidents.
When DOT failed to respond to the petition, the groups filed a lawsuit challenging that failure. Eventually, DOT responded by denying the petition, and Earthjustice challenged that denial. In light of the release of the final rule, that prior case will be dismissed.
Q. What are DOT-111 and CPC-1232?
DOT-111s have been in service in North America for several decades and were designed to carry liquids such as corn syrup. When involved in derailments, the tank cars are prone to puncture and spill their contents. As crude production in the United States has surged exponentially in recent years, these outdated rail cars have been used to transport the crude oil throughout the country. When these tank cars are involved in accidents while carrying highly volatile and toxic liquids such as crude oil, they have high tendency to spill oil and explode.
The U.S. and Canadian official accident investigators recognized decades ago that the DOT-111s were unsafe for carrying hazardous materials, finding that the chance of a “breach” (i.e., loss of contents, potentially leading to an explosion) is over 50% in some derailment scenarios. U.S. and Canadian safety investigators have repeatedly found that DOT-111s are unsafe and recommended that they not be used for explosive or hazardous materials, including crude oil.
CPC-1232s were developed by industry in response to the clear threats posed by the DOT-111s, and at best they represent a modest safety improvement. However, a large number of recent catastrophic crashes have involved CPC-1232s, and it is now well recognized that they are not an adequate response to the risks of shipping crude by rail.
Q. What is Bakken crude oil?
Bakken crude refers to oil from the Bakken shale formation, located primarily in North Dakota, where oil production has skyrocketed in recent years due to the availability of newer hydraulic fracturing (“fracking”) techniques. The increase in the nation’s output of crude oil in 2013, mostly attributable to Bakken production, was the largest in the nation’s history.
Bakken crude is highly flammable, much more so than some crude oils. Today, Bakken crude moves in “unit trains” of up to 120 rail cars all carrying oil, as long as a mile and a half, often made up of unsafe DOT-111s and CPC-1232s.
Q. Have there been accidents involving these trains?
Yes. At this point, derailments of tank cars carrying crude oil have become almost commonplace. (See an interactive map of recent accidents.) Since the surge in Bakken production began, there have been a number of high profile derailments of DOT-111s and CPC-1232s carrying Bakken crude that have led to massive oil spills, catastrophic explosions, evacuations, and significant casualties.
In fact, just a few days after the DOT issued its final rule, a derailment in North Dakota of a 107-car train of CPC-1232s resulted in a huge fire and the evacuation of the nearby town. It was the 24th such derailment since the tragic accident in the small Canadian town of Lac-Mégantic, where 60 tank cars derailed and caught fire, killing 47 people.
Given the extraordinary volume of Bakken crude currently being transported in unsafe rail cars, it is only a matter of time before another disaster of this magnitude—or worse—occurs.
Q. What steps have the U.S. and Canadian governments taken to date?
Safety experts in the U.S. government have repeatedly sounded the alarm that Bakken crude oil should not be shipped in DOT-111 tank cars due to the risks. Yet prior to the issuance of the new rules, all DOT did was issue safety alerts recommending—but not requiring—shippers to use the safest tank cars in their fleets for shipments of Bakken crude and to avoid using DOT-111 cars. After CPC-1232s breached, spilled oil and exploded in several rail accidents in 2014 and 2015, the investigators extended their recommendations to CPC-1232s.
In the new tank car rule and a similar Canadian rule, new tank car standards will replace both DOT-111s and CPC-1232s for newly built tank cars. However, for existing tank cars, both countries have settled for weaker standards that require only that modest additional safety features be added to the CPC-1232 cars.
Q. What are the other problems with the rule?
In addition to the extended timeline that keeps unsafe tank cars on the rails for years to come, the lawsuit raises a number of other issues. For example:
- The rule only applies to trains with 35 oil tank cars or more: Bakken crude can be transported in unsafe tank cars as long as there are no more than 34 cars in the train—forever.
- While the rule establishes a fairly robust standard for new tank cars, it allows existing cars to be held to a significantly weaker standard, exposing the public to excessive risk.
- The rule establishes a 40 mile per hour speed limit for only a small number of urban areas, but doesn’t offer this important protection to most populated areas near railroad tracks, rural communities, drinking water supplies, or other sensitive environments.
- The rule actually weakens standards for notice to emergency responders and the public that have been in place for the last year, meaning responders and communities will have even less information about the risks from crude oil transportation.
Q. What happens next?
The case has been filed directly with the U.S. Ninth Circuit Court of Appeals. A group of local governments have also filed a challenge, and the American Petroleum Institute has brought a lawsuit of their own. The various challenges will likely be consolidated before one court of appeals.
A decision is not expected before 2016.
Updated on May 14, 2015
Related Legal Cases
Nationwide: Weak Tank Car Standards
State of California: Holding Railroads Responsible for Oil Spills, Disaster Planning
Richmond, CA: Crude-by-Rail Shipments to California's Bay Area
Sacramento, CA: Sacramento Air District's Furtive Approvals of Crude Oil Project
Albany, NY: Crude Oil Shipments
Clatskanie, OR: Halting Clean Air Act Violations
Grays Harbor, WA: Stopping a Crude Oil Zone
Mount Vernon, WA: Skagit County Crude-by-Rail Decision