Missouri Pacific R.R. v. Railroad Com'n of Texas, 87-1466

• Decision Date: 29 July 1988
• Docket Number: No. 87-1466,87-1466
• Citation: 850 F.2d 264
• Parties: MISSOURI PACIFIC RAILROAD, et al., Plaintiffs-Appellees, v. RAILROAD COMMISSION OF TEXAS, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 264

850 F.2d 264

57 USLW 2091

MISSOURI PACIFIC RAILROAD, et al., Plaintiffs-Appellees, v. RAILROAD COMMISSION OF TEXAS, et al., Defendants-Appellants.

No. 87-1466.

United States Court of Appeals,

Fifth Circuit.

July 29, 1988.

Robert B. Burns, Jr., Karl G. Johnson, Jr., Austin, Tex., for Missouri Pacific R.R. Co., Topeka, Santa Fe R.R., Kansas City Southern R.Y. and Louisiana and Arkansas Ry. Co.

Frank W. Calhoun, Houston, Tex., for Burlington Northern R.R.

Michael E. Roper, Dallas, Tex., for Missouri-Kansas-Texas R.R. Hugh L. McCulley, Houston, Tex., for Southern Pacific Transp. and St. Louis-Southwestern Ry. Co.

Douglas Fraser, Asst. Atty. Gen., Energy Div./Transp., Austin, Tex., for Railroad Com'n of Texas, et al.

Lawrence M. Mann, Washington, D.C., J. Donald Bowen, Houston, Tex., for amicus curiae-Railway Labor Executives Assoc.

Appeal from the United States District Court for the Western District of Texas.

Before THORNBERRY, WILLIAMS and DAVIS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Appellees are various railroads suing the Texas Railroad Commission ("Commission") to enjoin enforcement of 16 TEX. ADMIN. CODE Sec. 5.622, which requires a caboose or alternative safety equipment on most trains travelling through Texas. This Court recently addressed related issues in a companion case involving regulation of rail walkways and visibility at grade crossings. Missouri Pacific Railroad Co. v. Railroad Commission of Texas, 833 F.2d 570 (5th Cir.1987) ("MOPAC I "). As with MOPAC I, this appeal concerns the preemptive scope of federal railroad regulations. ¹ The district court found Texas Sec. 5.622 completely preempted by three federal statutes: the Locomotive Boiler Inspection Act ("LBIA"), 45 U.S.C. Sec. 22 et seq. (1986); the Federal Railroad Safety Act ("FRSA"), 45 U.S.C. Sec. 421 et seq. (1986); and the Hazardous Materials Transportation Act ("HMTA"), 49 U.S.C. Sec. 1801 et seq. (1976). Declaratory and injunctive relief accordingly was awarded to the railroads. We affirm the district court, but based on the clear application of the FRSA and its preemptive effect on Sec. 5.622.

I.

Cabooses once were essential to train operation. Braking and speed were controlled in the caboose, and from it the crew could observe the movement of the train and check for overheating of the brakes, axles, and wheels. Technological advances over the years have greatly diminished the importance of cabooses to safe train operation. Automatic brakes are controlled from the locomotive, advances in wheel bearings decrease the risk of overheating, and monitoring devices simulate rear-car observation. Although manned cabooses may to a de minimus degree continue to enhance train safety, railroads in recent years have objected to the costliness of retaining cabooses since this elimination of significant safety considerations. Major railroads in 1982 executed a collective bargaining agreement with railroad labor unions, eliminating cabooses on 25% of all trains.

In 1986, the Texas Railroad Commission adopted regulation Sec. 5.622, which requires an occupied caboose capable of communicating with the locomotive on all trains carrying certain hazardous materials, and also on trains over 2,000 feet in length which lack certain mechanical devices used to monitor the train and track. ² The details of these devices and conditions which may excuse railroad compliance with the caboose requirement are set out in subsection (d) of the regulation. The district court determined that the FRSA preempted Sec. 5.622 in its entirety. Alternatively, the court found subsections (a), (b), d(2), (4) and (5) preempted by a combination of (1) the FRSA, which addresses flag protection, dragging equipment detectors, and telemetry devices; (2) the LBIA, which covers the subject matter of locomotive equipment, and (3) the HMTA, which deals with the transportation of hazardous materials. Missouri Pacific Railroad Company v. Railroad Commission of Texas, 671 F.Supp. 466 (W.D.Tex.1987). We find we need only consider the FRSA's preemptive effect upon Sec. 5.622.

II.

Congress enacted the FRSA in 1970 "to promote safety in all areas of railroad operations and to reduce railroad-related accidents...." 45 U.S.C. Sec. 421 (1986). The Federal Railroad Administration ("FRA") enforces the FRSA and promulgates railroad safety regulations. The FRSA contains an express preemption provision, which states:

The Congress declares that laws, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce.

45 U.S.C. Sec. 434 (1986).

Thus, Sec. 434 of the FRSA mandates uniform national railroad safety standards, "to the extent practicable." States are precluded from regulating railroad safety in areas already covered by the Secretary of Transportation, unless the state regulation addresses "an essentially local safety hazard." The Commission does not attempt to defend Sec. 5.622 as "necessary to eliminate ... an essentially local safety hazard." Hence, our sole inquiry is whether the FRA has preempted Sec. 5.622 by "covering the subject matter" of cabooses on trains.

A determination of federal preemption under the Supremacy Clause begins with inquiring "whether Congress explicitly or implicitly declared that the states are prohibited from regulating" the subject matter of the state law. Ray v. Atlantic Richfield Co., 435 U.S. 151, 158, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978). Because no federal law directly addresses cabooses, we are concerned with implied, rather than express, preemption. The law of implied preemption provides that " 'where failure of ... federal officials affirmatively to exercise their full authority takes on the character of a ruling that no such [state] regulation is appropriate or approved pursuant to the policy of the statute,' States are not permitted to use their police power to enact such a regulation." Ray, supra, 435 U.S. at 179, 98 S.Ct. at 1004-05, citing Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 774, 67 S.Ct. 1026, 1030, 91 L.Ed. 1234 (1947).

This Court applied Ray in MOPAC I, to determine whether the FRSA impliedly preempted Texas' rail walkway requirements. MOPAC I set out several general conclusions about the preemptive effect of the FRSA. We held that the FRSA does not evince a total preemptive intent because it specifically preserves a regulatory position for the states. MOPAC I, supra at 573. But although MOPAC I rejected implied FRA preemption of rail walkways, we must reach the opposite conclusion with respect to cabooses.

The situation before us differs significantly from that in MOPAC I. There, this Court determined that the FRA had declined certain rail walkway requirements because the proposed rules were vague or otherwise defective--not because the FRA considered walkway requirements unjustified. MOPAC I at 575, quoting Southern Pacific Transportation Co. v. Public Utilities Comm'n of California, 647 F.Supp. 1220 (N.D.Cal.1986). Consequently, we determined in MOPAC I that the FRA had not impliedly preempted state regulation of rail walkways; rather, the FRA appeared to be saying "we haven't looked at walkways yet." Id. at 576.

In the instant case, however, the FRA background information accompanying 49 C.F.R. 232, permitting the use of end-of-train telemetry devices as substitutes for visual brake inspection, demonstrates FRA consideration of safety in cabooseless operations. The 1986 FRA background report states:

The major objection raised by commentors opposed to the proposed rule was the opinion that elimination of a caboose from the end of a train adversely affects safety. For example, the comments of the Railway Labor Executives' association and the United Transportation Union called for new requirements, e.g., overheated bearing/wheel detectors, train length restrictions, and dragging equipment detectors, to counteract the perceived safety detriment of cabooseless trains. FRA does not agree with this line of analysis. First, nothing in any current FRA regulation requires a caboose on any train, nor does anything in the final rule issued in this docket authorize the removal of a caboose. The determination on whether a railroad uses a caboose on any given line is made through the collective bargaining process. Moreover, the FRA does not consider the lack of a caboose to be a safety issue per se. While this final rule may facilitate railroads' obtaining economic benefits from cabooseless operations, it does not in any way determine whether a caboose will or will not be used.

51 Fed.Reg. 17, 300-301 (1986) (emphasis added). We conclude from this background statement that the FRA has fully considered the safety aspect of requiring cabooses and has determined that the issue does not involve safety. It is also clear that the FRA did not intend to leave to the states the matter of requiring cabooses. The FRA has drawn the affirmative conclusion that the use of cabooses is a matter for collective bargaining, not for federal nor state regulation. A finding of implied preemption must follow. MOPAC I made clear that implied preemption under Ray arises when the policymaker appears to be saying "we haven't done anything because we have determined it is appropriate to do nothing." Supra, at 576. The FRA has determined it...