By: Janet Gilbert

In August of 2019, Illinois enacted a two-person crew law.  On September 30, 2020, the federal court for the Northern District of Illinois declared the law preempted.

The lawsuit challenging the Illinois law was brought by The Indiana Rail Road Company along with the AAR and the ASLRRA.  The Illinois law is similar to a number of statutes passed by, or pending in, several states.

The FRA’s announced in May of 2019 — when it withdrew its two-person crew rulemaking – “that no regulation of train crew staffing is necessary…at this time” and the FRA intends “for the withdrawal to preempt all state laws attempting to regulate train crew staffing.”   The Federal Railroad Safety Act (“FRSA”) authorizes the FRA to regulate rail safety; however, the FRSA also permits a state to regulate rail safety so long as the FRA does not ”prescribe…a regulation or issue …an order covering the subject matter  of the State requirement.” A federal regulation or order covers the subject matter if “the federal regulations substantially subsume the subject matter of the relevant state law.”  CSX Transp., Inc. v Easterwood, 507 U.S. 658, 664 (1993).  In reaching its decision, the court answered a key question in the affirmative …but left the door open for a possible second bite at the apple for the State.

Is the FRA’s withdrawal of its rulemaking on crew size an “order” as specified in the FRSA?  The court said yes.  The court opined that, for purposes of preemption, it is not the form of the FRA’s ruling that is critical.  It’s the process by which the FRA reached its decision.  In the case of crew size, the FRA clearly considered the subject matter, issued a proposed rulemaking, received thousands of comments on the proposed rule, held public hearings, and elected to withdraw its proposed rule.  The FRA considered the subject matter of crew size, opted not to impose any rules, and specifically stated its ruling was intended to preempt any state rulemaking of the same subject matter. The FRA’s pronouncement qualifies as an “order” under the FRSA.

But is it a valid order?  Did its “promulgation” follow the rules required for implementing a federal order?   The court’s answer to this question was simple:  “we don’t have jurisdiction to answer that question.”  Challenges to the validity of a federal order, by law, must be presented to a Federal Court of Appeals.  The Federal Court of Appeals has exclusive jurisdiction over challenges to the validity of final federal agency actions…and, in fact, the validity of the FRA crew size order is being challenged in the Ninth Circuit in an action consolidating a number of different challenges to the FRA’s order.  Without a Court of Appeals ruling on validity, district courts must presume the agency action is valid.

Hence, the NDIL court ended its decision with a lifeline to the State:  If the Ninth Circuit should deem the order invalid, the State of Illinois can move to have the district court decision vacated.        

 For further information, contact Janet Gilbert at jgilbert@fletcher-sippel.com.