[from April 2005 issue]


That’s the question posed at the very top of well-documented report that appeared in the March 21, 2005 edition of Chemical & Engineering News, the prestigious and authoritative journal of the 16th Street-headquartered American Chemical Society. It was the lead in to a caption explaining the dramatic photo that appears directly under the headline reading, “RAILROAD SAFETY, SECURITY, SECRECY: Counterterrorism clashes with rail commerce in Washington, D.C., hazardous materials law.” The caption tells us that what we are looking at--within not much more than a city block south of the Rayburn House Office Building (and showing the Capitol dome beyond)--is “a 90-ton pressurized chlorine rail tank car [sitting] next to government buildings. . . .” Adding to the frightening image captured by the Sierra Club’s Jim Dougherty, is the very large warning label prominently affixed to the side of the tank car which reads, “CHORINE - INHALATION HAZARD”!

That the irresponsible CSX Railroad executives have clearly put profit above national security (we know they seem to put profit above track maintenance and general operational safety for which Amtrak, which must use CSX’s right-of-way, suffers the blame) is reprehensible. But it is also scandalous that the federal government’s own homeland security and transportation regulatory agencies have been so lax with regard to this issue. They have obviously ignored their boss’ statements about homeland security being the number one priority--unless, of course, the federal bureaucrats know something that we do not, like maybe the President has just been blowing hot air. There are suspicions that do abound when Presidential or government agency non-actions seem to benefit the corporate fat cats. But we’ll leave that train of thought up to the bloggers and the conspiracy theorists.

Our concern is the here and now.

We acknowledge that the city council’s very recently passed Terrorism Prevention in Hazardous Materials Transportation Emergency Act of 2005 and the April 1st-issued implementing regulations by the city’s transportation department do raise clear legal issues with respect to the Constitution’s Commerce Clause, not to say anything about legitimate concerns regarding a likely “domino effect” when other cities and localities start enacting similar restrictions on rail shipments; such would adversely affect the economy, and that is why the framers of the Constitution reserved to the federal government the authority over interstate commerce.

But, to us, it is obvious why the city council felt compelled to take this action, notwithstanding assurances from CSX as well as the federal authorities that they were working on some kind of plans to deal with these issues--plans which nobody was apparently willing to reveal to local officials, however. Naturally, that led to the not-so-far-etched belief that there really were no plans of any significance in the first place.

So, the council did something important by bringing this issue to the fore, to in fact elevate it to the level of national discussion. One only has to look at press reports in the newspapers as well as journals such as the one cited at the top of this commentary, to realize that a great service was indeed performed by our council.

Now there are many commentators out beyond the Beltway, as well as national politicians, who ought to know better. They say that DC shouldn’t be able to impose these kinds of restrictions because it’s just a city like any other--like Toledo or Tulsa or Kansas City, etc., etc. Well, in our view, these reactions show that those who feel this way have seriously missed the point. Washington, DC is sui generis, meaning in a class by itself alone, unique or particular to itself. Just think about it: No other city is the seat of our government, the Numero Uno target for terrorists. Damage us here and more is damaged than the lives of half-a-million citizens without voting representation in Congress. What will be lost is the Congress, the Executive branch, the Supreme Court--everything would collapse.

Ironically, CSX claimed that, unbeknownst to us, they did in fact for awhile re-route hazardous shipments away from the main line going past sensitive federal agencies in Southwest and Capitol Hill to the old B & O right-of-way that snakes through Northeast and out by way of Silver Spring. We say this is ironic, because rather than reducing the hazard of quick death to members of Congress, the Supreme Court and even the White House establishment by exposure to toxic fumes, should an attack be carried out on those tank cars to the northeast and north of the Federal Triangle, White House and Capitol Hill, the likelihood of greater disaster would loom for the simple reason that the prevailing winds mostly come out of the northwest and northeast and so toxic clouds that might otherwise drift south from Virginia Avenue would surely wipe out even more of the federal establishment.

The CSX filing in the federal court seeking to nullify DC’s new law is presently being heard by the astute US District Court Judge Emmet G. Sullivan who just the day before we were writing this commentary proposed a 30-day cooling off period whereby the DC regulations would be put on hold and the parties, with the judge acting as mediator, craft a compromise plan that would address CSX’s economic concerns and at the same time solve the national security issue. This proposal by the judge followed, according to a report in the Washington Post, a private briefing by federal authorities which apparently convinced the judge that he could craft a solution. DC officials immediately agreed but CSX’s lawyers waffled and said they’d have to get back on that. The judge warned CSX’s lawyers that if they don’t go long with his effort to craft a settlement (there is reason to believe that the Justice Department will be agreeable) and stop focusing on obtaining a ruling on whether the city has the authority to ban such shipments, they could be worse off: “You’ve got a lot to lose here. . . . Focus on what I have to say. Put your litigation back in your briefcase.”

Unfortunately, as we learned just as we were completing these words, CSX won’t go along. Mayor Williams reacted immediately with a terse statement that we fully support, expressing disappointment with this decision. We think the federal government should simply order the ban now. It has the authority under the Commerce Clause regardless of any questions about local jurisdiction authority. National security is simply too critical to allow for any other policy result.