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Maryland Judge Rules Public Has Right To Information On Dangerous Oil Trains

A Maryland judge ruled on August 14 that the public has a right to information provided to the state’s Department of Transportation by railroad companies about dangerous trains carrying crude oil.

Judge Lawrence Fletcher-Hill rejected CSX and Norfolk Southern’s arguments that the information needed to be kept secret because it contained “confidential commercial information,” “trade secrets,” or information which could be useful to terrorists. He stayed his decision to give CSX and Norfolk Southern an opportunity to appeal.

On May 7, 2014, as described in the state court’s decision [PDF], the United States Department of Transportation (DOT) issued an order requiring “all railroad carriers transporting 1 million gallons or more Bakken crude oil in a single train to provide certain notices to State Emergency Response Commission in each state through which such trains pass.”

“’A pattern of releases and fires involving petroleum crude oil shipments originating from the Bakken,’ including the ‘catastrophic’ accident in Lac-Mégantic, Quebec, Canada on July 6, 2013 that resulted in forty-seven deaths,” are part of the motivation for the DOT order.

What the DOT requested that companies provide are reasonable estimates of the number of trains expected to pass through each state, a description of the petroleum crude oil expected to be transported, applicable emergency response information, and routes which companies plan to use for transportation. All of this is intended to protect the public and environment from “imminent hazards.”

In June 2014, McClatchy Newspapers, which has produced regular coverage on the issue of crude oil transportation, “submitted open records requests in 30 states for the oil train reports.” Norfolk Southern and CSX sued to block Maryland agencies from releasing documents.

“This is a significant victory for transparency and for Maryland residents living along the path of oil trains,” declared Anne Havemann, general counsel for the Chesapeake Climate Action Network. “Judge Fletcher-Hill affirmed that communities have a right to know whether dangerous oil trains are running through their backyards. Shedding light on the risks is the first step toward stronger state and local action to safeguard our communities.”

According to the climate action group, this was the first time a railroad company went to court to block disclosure of information.

McClatchy reported in July the DOT warned railroads it must provide appropriate information to states after several states indicated they had not received information “for as long as a year.”

The Federal Railroad Administration, in spite of pressure from oil interests, has stated, “We strongly support transparency and public notification to the fullest extent possible. And we understand the public’s interest in knowing what is traveling through their communities.”

However, in May, McClatchy reported a “disclosure requirement” would be discontinued next year. Information currently provided to states would no longer have to be shared. Emergency responders would have to request details on oil train shipments as disasters happened, and the public would be kept in the dark about potential risks to communities.

The department regulation indicated, “Under this approach, the transportation of crude oil by rail can … avoid the negative security and business implications of widespread public disclosure of routing and volume data.”

Stunningly, part of the justification for this new regulation stems from an investigation by the FBI and Bureau of Alcohol, Tobacco, Firearms, and Explosives into a reported act of vandalism in South Dakota last December.

“A two-foot section of rail on the state-owned Dakota Southern Railway was blown out with tannerite,” McClatchy reported. But this track in Vivian, South Dakota, is not used for oil trains and has not been used by any train for quite some time.

Energy companies throughout the country have invoked “trade secret” or “security sensitive information” arguments to derail regulations and even environmental impact studies of operations. In Washington, Shell sued in order to stop an impact study from being produced on its proposed oil train unloading facility. A judge later dismissed the lawsuit.

Sierra Club and ForestEthics sued the DOT and challenged the continued use of dangerous oil-by-rail tankers. The lawsuit has stalled.

ForestEthics and Communities for a Better Environment (CBE) examined oil train routes and US Census data in a report published in June [PDF]. The report examined the way in which oil trains contribute to environmental racism in California, since people of color are more likely to live nearby oil train blast zones.

Eighty percent of 5.5 million Californians with homes in blast zones live in environmental justice communities, which means more than a quarter of residents are non-white, median household income is less than 65% of the statewide household income, or more than 25% of households have no one above 14 years-old who speaks English.

Attention paid by activists and environmental action groups to potential oil disasters is justified. According to Sightline Daily, there have been ten oil train explosions in the past two years. The most recent disaster occurred in North Dakota on May 6.

The public faces a considerable risk. NBC News reported,”Nearly 450,000 tankers of crude moved through North America last year, up from just 9,500 in 2009.”

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."