The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
MEMORANDUM OPINION & ORDER
Plaintiff CSX Transportation Inc. ("CSXT"), a freight railroad and the exclusive rail carrier of hazardous materials through the District of Columbia, seeks to enjoin enforcement of defendant District of Columbia's Terrorism Prevention in Hazardous Materials Transportation Emergency Act ("Terrorism Prevention Act" or the "Act"). The law, which is scheduled to take effect on April 20, 2005, would prohibit rail transport of certain ultrahazardous materials within a 2.2 mile zone around the United States Capitol. Plaintiff contends that the District's legislation violates the Commerce Clause of the United States Constitution, is preempted by federal law, and violates the limited authority granted to the District of Columbia government by Congress pursuant to the Home Rule Act.
Pending before the Court are plaintiff's Motion for Summary Judgment or in the alternative Motion for a Preliminary Injunction, as well as the United States' Motion to Enforce a related decision by the Surface Transportation Board. Upon consideration of the motions; the responses and replies thereto; the numerous additional pleadings submitted by plaintiff CSXT, defendant District of Columbia, the United States, intervenor defendant Sierra Club, and the amicus curiae; oral argument held in open court on March 23, 2005; an ex parte, in camera presentation held on April 4, 2005; and the entire record herein, the Court concludes for the following reasons that plaintiffs' motions must be DENIED.
This case involves longstanding principles of federalism applied to one of the government's newest and most important roles--protecting our Nation from the threat of terrorism. At issue is a simple, but potentially devastating, scenario: the deliberate targeting and destruction of a railroad car containing chlorine gas or other ultrahazardous material in the heart of Washington, D.C. Like the airline highjackings of September 11, 2001, this kind of attack would exploit a familiar component of the country's infrastructure and turn it against us. The results could be catastrophic. One study estimates that an attack on a single rail tank car of chlorine traveling through Washington, during a celebration or political event, could kill or seriously harm 100,000 people within an hour.*fn1 The toxic plume resulting from such an attack could extend over 40 miles from the point of release, including a core area of about 4 miles by 14.5 miles within which exposure could be deadly.*fn2
The Court is not called upon to choose the best policy to protect the country from this potential nightmare--that is a matter for our elected representatives. Rather, this litigation requires an interpretation of how Congress and the Constitution have distributed authority to prescribe solutions among and between the different levels of government. Each level of government has a role to play. Congress is responsible for developing the statutory framework to address this threat; the Executive branch is responsible for implementing and carrying out the national policy; and state and local governments are responsible for exercising their traditional police powers to protect their citizens, but only up to the limits of the Constitution.
The Court recognizes that the federal government has the ultimate authority and responsibility to provide a safe, secure, and efficient rail transportation system in the United States and to formulate an effective and coordinated response to the threat of terrorism. See 49 U.S.C. § 20103 (authorizing the Secretary of Transportation to regulate rail safety and security); 49 U.S.C. § 5103 (authorizing the Secretary of Transportation to regulate security of hazardous materials in transit); see also Jifry v. F.A.A., 370 F.3d 1174, 1183 (D.C. Cir. 2004) ("It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation.")(quoting Haig v. Agee, 453 U.S. 280, 307 (1981)). Clearly, the federal government is best positioned to develop and implement measures that will protect not only the District of Columbia, but the entire Nation, and to balance the benefits of those safeguards with their corresponding costs and burdens on interstate commerce.
Congress, however, has enacted a statutory framework that specifically provides authority for states, acting in partnership with the federal government, to regulate in the areas of railroad safety and hazardous material transportation if the federal government has not yet acted to comprehensively cover a new risk. See 49 U.S.C. § 20106; 49 U.S.C. § 5125. Thus, this case is not about whether or not the D.C. Council has unconditional authority to choose whether or not hazardous materials may enter the District; it clearly does not. Rather, this case presents the much narrower and fact-specific question of whether the District of Columbia, pursuant to its traditional police powers and on a temporary basis, may prohibit the rail carriage of certain hazardous materials through the District until the federal government has more thoroughly addressed the threat of terrorist attack on trains and has put sufficient safeguards in place.
A. The Federal Statutory Framework
The transportation of hazardous materials ("hazmats") in interstate commerce is essential to the economy of the United States and the well-being of its people. Hazmats, including propane gas and chlorine, fuel our vehicles, heat and cool our homes and offices, and clean our drinking water. At the same time, the inherent physical, chemical, and nuclear properties of hazmats can present serious risks to public safety, especially while in transit. For example, a January 2005 freight train derailment in South Carolina caused a chlorine gas leak that left nine people dead, more than 200 injured, and caused about 5,400 residents to be evacuated from their homes. For this reason,*fn3 the federal government, under the Department of Transportation ("DOT"), closely regulates the safe and secure transportation of hazmats in all modes of transportation. See the Hazardous Materials Transportation Act, 49 U.S.C. §§ 5101-5127 ("HMTA").*fn4
The federal government also has a central role in regulating the interstate railroads. The Interstate Commerce Commission Termination Act of 1995, 49 U.S.C. §§ 10101-11908 ("ICCTA"), replaced the former Interstate Commerce Commission with the Surface Transportation Board ("STB" or the "Board"), and vested the Board with broad jurisdiction over transportation by rail carriers and the national rail network. See 49 U.S.C. § 10501. The Federal Railroad Safety Act, 49 U.S.C. §§ 20101-20153 ("FRSA"), provides an additional layer of federal authority over rail safety and security.*fn5
Historically, the federal government has focused its rail safety and hazmat regulatory programs on the types of "operational" risks that are inherent in rail transportation. These risks include, for example, hazmat releases caused by the accidental collision or derailment of rail cars. However, the terrorist attacks of September 11, 2001 shocked the world and prompted a wide-ranging reassessment of the risks facing our country. With those attacks came the realization that some of the most serious threats to our safety may no longer be considered "accidents." As a result, Congress moved quickly to reorganize the government and provide regulatory agencies and law enforcement with new tools to address these new threats.
As part of this effort, Congress amended the core statutes addressing railroad safety and hazmat transportation, and provided DOT with additional authority to regulate railroad security along with its traditional focus on conventional risks. See Homeland Security Act of 2002, Pub. L. 107-296, Title XVII, §§ 1710-1711 (Nov. 25, 2002). DOT began advising industry of voluntary measures to enhance hazmat security,*fn6 and issued regulations requiring shippers and carriers to develop company-specific "security plans" for the transportation of certain hazardous materials. See Hazardous Materials: Security Requirements for Offerors and Transporters of Hazardous Materials, 68 Fed. Reg. 14510 (March 25, 2003)(codified at 49 C.F.R. §§ 172.800-804)("HM-232"). The Transportation Security Administration ("TSA"), under the auspices of the Department of Homeland Security ("DHS"), also began working with rail carriers to minimize security risks and continues to assess, develop, and implement enhanced security measures on the rail network, including measures specific to the D.C. Rail Corridor. See,*fn7 e.g., Hazardous Materials: Enhancing Rail Transportation Security for Toxic Inhalation Hazard Materials, 69 Fed. Reg. 50988 (Aug. 16, 2004); see also P.I. Mem. Ex. 8, Written Testimony of Thomas Lockwood, Public Roundtable on the Progress of the District of Columbia Rail Corridor Security Initiative (Nov. 22, 2004).
These federal agencies are facing an enormous challenge, but they have made significant strides, especially in the areas of aviation and maritime security. However, it is widely acknowledged that much work remains to be done. Dr. Richard A. Falkenrath, the former Deputy Homeland Security Advisor and Deputy Assistant to the President, warned Congress in January 2005 that "since 9/11 we have essentially done nothing" to reduce the inherent vulnerability of our chemical sector. See Sierra Opp. Ex. 24, Testimony of Richard A. Falkenrath, before the United States Senate Committee on Homeland Security and Governmental Affairs (Jan. 26, 2005). Dr. Falkenrath advised Congress that toxic-by-inhalation chemicals, such as chlorine gas, are basically World War I era chemical weapons, which we move through our cities in extraordinary large quantities and quite low security. I'm sorry to say, since 9/11 we have essentially done nothing in this area and made no material reduction in the inherent security of our chemical sector. If a terrorist were to attack that sector, there is the potential for casualties on the scale or in excess of 9/11. I hope it doesn't happen, but it's just a fact that this is the case. This needs to be the next big push in critical infrastructure protection. The executive branch has the authority to regulate this area when it's being transported. It needs no new statutory authority there, just needs executive action.
Id. "This should be the highest priority," according to Dr. Falkenrath. "The other ones don't matter nearly as much. This one does." Id.*fn8
C. The District of Columbia's Terrorism Prevention Act
It is against this backdrop that the District of Columbia acted on February 1, 2005, to "prohibit, on an emergency basis, large shipments of certain extremely hazardous materials through or near the United States Capitol in order to reduce the risk of attacks by terrorists...." District Act § 1.*fn9 The "Terrorism Prevention Act" restricts transportation of certain ultrahazardous materials, specifically the most dangerous toxic by-inhalation chemicals, within a 2.2 mile radius of the U.S. Capitol (the "Capitol Exclusion Zone"). District Act § 4. Following months of hearings and public debate on the legislation, the D.C. Council made the following legislative findings accompanying the Act:
• A terrorist attack on a large-quantity hazardous materials shipment near the United States Capitol ("Capitol") would be expected to cause tens of thousands of deaths and a catastrophic economic impact of $5 billion or more.
• The threat of terrorism facing D.C. residents and workers in the vicinity of the Capitol requires an urgent response that recognizes and addresses the unique status of this area in American political life and history, and the terrorism risk that results from this status.
• The federal government has not acted to prevent the terrorist threat resulting from the transportation of dangerous volumes of ultra-hazardous materials through the Capitol Exclusion Zone.
• Shippers of ultra-hazardous materials do not need to route large quantities of ultra-hazardous chemicals near the Capitol in order to ship such chemicals to their destinations, and alternative routes would substantially decrease the aggregate risk posed by terrorist attacks.
• Requiring permits for ultra-hazardous shipments from a Capitol Exclusion Zone that encompasses all points within 2.2 miles of the Capitol would impose no significant burden on interstate commerce. District Act § 2.
CSXT operates two main rail lines through the District: a north-south main line ("I-95 Line") running along the eastern seaboard from Florida to New England, and an east-west main line ("B&O Line") running from Washington, D.C. west to Chicago and St. Louis. See P.I. Mem. at 12. Because both lines pass within the Exclusion Zone, the Act will effectively require CSXT to utilize alternative routes for the regulated materials.*fn10 See P.I. Mem. at 17.
Plaintiff claims that the Terrorism Prevention Act is "protectionist legislation that, on its face, unreasonably burdens interstate commerce, interferes with the comprehensive federal regulation of the shipment of hazardous materials by rail and invites other local jurisdictions to enact copycat legislation which could, by crazy-quilt coverage, bring to a halt the interstate shipment of critically important materials throughout the United States of America."*fn11 Amended Compl. ¶ 1. CSXT seeks a judicial declaration that the District Act (1) violates the Commerce Clause of the United States Constitution; (2) is preempted by the express preemptive provisions of the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. § 20106, the federal Hazardous Materials Transportation Act ("HMTA"), 49 U.S.C. § 5125, and the Interstate Commerce Commission Termination Act ("ICCTA"), 49 U.S.C. § 10501(b); and (3) is an ultra vires act by the D.C. Council contrary to the limited delegation of legislative authority given to the District by Congress under the Home Rule Act. Amended Compl. ¶ 17.
Plaintiff urges the Court to declare invalid and permanently enjoin the implementation and enforcement of the District Act. In the alternative, plaintiff requests the entry of a preliminary injunction to prevent the law from taking effect, pending the Court's determination of the merits of plaintiff's case. At stake, according to plaintiff, is no less than the "preservation of an interstate rail system that is essential to our overall national economy, to our public health, to our welfare and to the security of the nation." See CSXT Reply at 8.
The United States also plays a key role in this dispute. The Justice Department filed a "Statement of Interest" and participated in oral argument supporting plaintiff's legal positions and arguing that the District Act is invalid. In addition, the United States has filed a motion to enforce a declaratory order of the Surface Transportation Board ("STB" or the "Board"), which found that the District Act would "unreasonably interfere with interstate commerce" and is preempted by the ICCTA. See CSX Transportation, Inc. - Petition for Declaratory Order (STB Fin. Docket No. 34662, March 14, 2005) ("STB Order").
The District of Columbia is joined by intervenor-defendant Sierra Club in defending the Constitutionality of the Terrorism Prevention Act.
Summary judgment"shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In considering the motion, all evidence and the inferences to be drawn from it must be considered in a light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Smith-Haynie v. District of Columbia, 155 F.3d 575, 579 (D.C. Cir. 1998).
Summary judgment may not be granted "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, a party opposing summary judgment must offer more than mere unsupported allegations or denials and its opposition must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp., 477 U.S. at 324.
In considering whether to grant an application for emergency injunctive relief, a court must consider four factors: (1) whether there is a substantial likelihood that plaintiffs will succeed on the merits of their claims, (2) whether plaintiffs will suffer irreparable injury absent an injunction, (3) whether an injunction would harm the defendants or other interested parties (the balance of harms), and (4) whether the public interest would be furthered by an injunction. See Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998) (citing Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977)). The factors "must be viewed as a continuum, with more of one factor compensating for less of another." Bradshaw v. Veneman, 338 F. Supp. 2d 139, 141 (D.D.C. 2004). Thus, "[i]f the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak." Serono Labs., 158 F.3d at 1318.
Finally, because interim injunctive relief is an extraordinary form of judicial relief, courts should grant such relief sparingly. See Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004) ("A preliminary injunction is an extraordinary remedy that should be granted only when the party seeking relief, by a clear showing, carries the burden of persuasion."); see also Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)(a preliminary injunction is "an extraordinary and drastic remedy").
"[T]he Laws of the United States... shall be the supreme Law of the Land... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., Art. VI, cl. 2. Thus, "[w]here a state statute conflicts with, or frustrates, federal law, the former must give way." CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663 (1993)(citing Maryland v. Louisiana, 451 U.S. 725, 746 (1981)).
Plaintiff argues that the District Act conflicts with and must "give way" to three federal statutes: the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. § 20106, the federal Hazardous Materials Transportation Act ("HMTA"), 49 U.S.C. § 5125, and the Interstate Commerce Commission Termination Act ("ICCTA"), 49 U.S.C. § 10501(b). Each of these statutes recognizes that a uniform national program is preferable to a patchwork of state and local regulations, but they do not entirely eliminate the states' role in the national framework. Instead, each statute includes an express preemption clause that precisely circumscribes the borders of federal and non-federal authority in the statutes' respective subject areas:
(a) The FRSA. Under the FRSA, states may regulate in the area of railroad safety and security "until" the federal government "prescribes a regulation or issues an order covering the subject matter of the State requirement." 49 U.S.C. § 20106. In addition, if addressing "essentially local" hazards, the FRSA authorizes states to take "more stringent" measures as long as they are not "incompatible" with federal regulations, and do not "unreasonably burden interstate commerce." Id.*fn12
(b) The HMTA. The HMTA preempts non-federal regulation if it is (1) "not possible" to comply with that regulation and a federal regulation, or (2) the non-federal regulation presents an "obstacle" to accomplishing and carrying out the federal framework. 49 U.S.C. § 5125(a). The HMTA also preempts state or local requirements that are not substantively the same as federal requirements in five specified areas, including hazmat classification and packaging, the use of shipping documents, notification of unintentional releases, and design and manufacturing standards for shipping containers.*fn13
(c) The ICCTA. Finally, Congress included in the ICCTA a broadly worded preemption provision providing that the jurisdiction of the STB over transportation by rail carriers, including remedies with respect to rates, practices, routes, services, and facilities of such carriers, is exclusive.*fn14 See 49 U.S.C. § 10501(b).
In every preemption case, "the purpose of Congress is the ultimate touchstone." Geier v. Am. Honda Motor Co., 166 F.3d 1236, 1237 (D.C. Cir. 1999)(quoting Medtronic v. Lohr, 518 U.S. 470, 485 (1996)). This purpose can sometimes be inferred from the depth and breadth of the regulatory scheme. See, e.g., Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153 (1982). However, "[i]f the statute contains an express pre-emption clause, the task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress' pre-emptive intent." Easterwood, 507 U.S. at 664. Because the FRSA, HMTA, and ICCTA each contain express preemption clauses, the Court's task is relatively straightforward.*fn15
As described above, state laws relating to rail safety and security may stand until the federal government "prescribes a regulation or issues an order covering the subject matter of the State requirement." 49 U.S.C. § 20106. The word "cover" implies something more than mere planning or first steps. See Easterwood, 507 U.S. at 664 ("cover means 'to comprise, include, or embrace in an effective scope of treatment or operation'")(quoting Webster's Third New International Dictionary 524 (1961)). "To prevail on the claim that the regulations have preemptive effect, [plaintiffs] must establish more than that they 'touch upon' or 'relate to' that subject matter." Id. Rather, "preemption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law." Id.; see also Norfolk Southern Ry. Co. v. Shanklin, 529 U.S. 344, 352 (2000).
The Supreme Court has observed that this language displays "considerable solicitude" for state law. Easterwood, 507 U.S. at 665; see also United Transp. Union v. Foster, 205 F.3d 851, 860 (5th Cir. 2000)(when deciding whether state rail safety laws are preempted, "we interpret the relevant federal regulations narrowly to ensure that the careful balance that Congress has struck between state and federal regulatory authority is not improperly disrupted in favor of the federal government"). The FRSA also seems to preserve the longstanding and "settled principle that, in the absence of legislation by Congress, the States are not denied the exercise of their power to secure safety in the physical operation of railroad trains within their territory, even though such trains ...