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Legal Issues Concerning State and Local Authority to Restrict the Transportation of Hazardous Materials by Rail

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Abstract:

In the wake of the recent train derailment and chlorine gas leak in South Carolina, state and local officials have begun to examine the scope of their regulatory authority over the transportation of hazardous materials by rail. Specifically, local officials in the District of Columbia have recently authorized a temporary ban on the transportation of certain toxic substances from trains that travel though the District of Columbia. Reviewing the relevant statutes, including the Hazardous Materials Transportation Act and the Federal Railroad Safety Act, it would appear that state and local governments may be preempted from enacting legislation that would prevent or hinder the transportation of hazardous materials in interstate commerce. In addition, the Constitution's dormant, or "negative" Commerce Clause may also prevent a state or locality from imposing such a restriction as it could arguably be seen as imposing an undue burden on interstate commerce. This report will provide an overview of the relevant federal statutes with respect to the transportation of hazardous materials by rail, and will discuss some of the legal issues with respect to both federal preemption and the dormant commerce clause. This report will be updated as events warrant.