With the one-year anniversary of the February 3, 2023 hazardous materials derailment in East Palestine, Ohio looming, now is an appropriate time to consider the future of rail safety legislation.
Despite several bills being introduced in the House and Senate, there were no legislative changes from Congress in 2023. However, that is not the end of the story, especially as we consider the momentum that may build to do something reflecting on the East Palestine anniversary.
In fact, the work Congress has done over the past several years points the way towards compromises on grade crossings, permitting, and technology promotion that could get broad bipartisan support over the next year or two. That’s especially the case with the final crash report from the National Transportation Safety Board expected at some point in the first half of 2024.
Some actions have already been embraced by key players, such as better communication and coordination with local officials and local communities. Some priorities for elected officials closest to the East Palestine accident – such as minimum crew size requirements and onerous inspection and detector requirements have too much opposition to reach consensus.
However, grade crossing eliminations, reform of the permitting process to speed up construction, and promotion of new technology solutions are steps that could genuinely increase rail safety. That’s the case even in the current Congress, as divided as it is.
Grade crossing eliminations. While train derailments have raised alarms, that’s not where the biggest safety hotspot is in the rail world. Overall, rail transport remains the safest and most environmentally-friendly option for moving large freight quantities. However, grade crossings – where roads and train tracks cross – are the least safe part of the rail system. Fatalities there account for the lion’s share of those related to rail, and are a notable percentage of overall highway fatalities.
The 2021 infrastructure law, the Infrastructure Investment and Jobs Act (IIJA), highlighted the consensus on addressing grade crossings. With more than 200,000 such crossings nationwide, they represent critical safety hotspots. The past year saw efforts to mitigate these dangers, both by closing off some crossings and by building overpasses with others.
A total of $3 billion total is authorized in IIJA for the Railroad Crossing Elimination (RCE) Grant Program, distributed relatively evenly over five years. In June, FY2022-designated grants amounted to $573 million for more than 400 at-grade crossings in 32 states. This is a good first step in trying to reduce the risks of fatalities and the inconvenience of waiting for trains, but 400 is a tiny fraction of 200,000. Congress could consider upping the funding available for the RCE program to accelerate the safety and efficiency gains there.
Permitting reform. The U.S. is the toughest place in the world to get an infrastructure project permitted, even compared to other developed nations. The time required to secure federal permits for infrastructure projects is roughly four and a half years. For public transit the average is more than five years; for road or bridge projects, it’s more than seven years. And that’s just when construction can begin. Consequently, despite the availability of record funding from the 2021 infrastructure law, the deployment of these resources can be frustratingly slow.
The 2021 law did institute in statute the principle of "One Federal Decision," to streamline environmental review by federal agencies and allowing multiple agencies involved in an infrastructure project to rely on just one agency's environmental review. That was a decent first step, but Congress should expand and toughen OFD to make sure agencies are forced to work together to move infrastructure projects along. Several pieces of legislation have been introduced in Congress to accomplish this, but have thus far stalled.
The good news is that with projects of various types held up across the ecosystem of energy and transportation infrastructure, it should be possible to form a bipartisan political consensus that it’s time to fix permitting. That would make it easier to build not just rail crossing eliminations, but other infrastructure projects to make the transportation system both safer and more efficient.
Technology promotion. One of the most promising developments in rail safety over the past few years has been the push for advanced sensor and automation technologies. Following the successful implementation of Positive Train Control technology, there's a growing emphasis on empowering rail workers with the latest and most affordable safety monitoring tools. This technological advancement has been a cornerstone of recent efforts, dovetailing with the IIJA implementation.
While there have been discussions about mandating minimum crew sizes, a consensus approach could focus on how new technologies can redefine job roles. The move towards automation, though cautious, points towards a future where rail systems are safer, more efficient, and better suited for the challenges of the 21st century – while still being under human supervision.
The progress made in addressing grade crossings, permitting reform, and technological advancements could provide a solid foundation for Congress to contribute to continued improvements in the rail industry.
Loren A. Smith Jr. is the president of Skyline Policy Risk Group, a research and consulting firm focused on the supply chain. He previously served as deputy assistant secretary for policy at the U.S. Department of Transportation.
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