Csx Transp., Inc. v. Williams, No. 05-5131.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtPer Curiam
Citation406 F.3d 667
PartiesCSX TRANSPORTATION, INC., Appellant v. Anthony A. WILLIAMS, In his official capacity as Mayor of the District of Columbia, et al., Appellees
Decision Date03 May 2005
Docket NumberNo. 05-5131.

Page 667

406 F.3d 667
CSX TRANSPORTATION, INC., Appellant
v.
Anthony A. WILLIAMS, In his official capacity as Mayor of the District of Columbia, et al., Appellees
No. 05-5131.
United States Court of Appeals, District of Columbia Circuit.
Argued April 27, 2005.
Decided May 3, 2005.

Page 668

On Emergency Motion for Injuction Pending Appeal and for Motion for Summary Reversal.

Carter G. Phillips argued the cause for the appellant. With him on the motion for injunction and summary reversal were Virginia A. Seitz, Irvin B. Nathan, Mary Gabrielle Sprague, Sidney A. Rosenzweig, Kathryn E. Taylor, Peter J. Shudtz and Paul R. Hitchcock.

Douglas N. Letter, Litigation Counsel, United States Department of Justice, argued the cause for amicus curiae United States of America in support of the appellant. With him on the response were Kenneth L. Wainstein, United States Attorney, Gregory G. Katsas, Deputy Assistant Attorney General, Irene M. Solet, Attorney, and Jeffrey A. Rosen, General Counsel, United States Department of Transportation, and Paul Geier, Assistant General Counsel.

G. Paul Moates and Terence M. Hynes were on the response of amicus curiae Norfolk Southern Railway Company in support of the appellant.

Edward E. Schwab, Deputy Attorney General, Office of Attorney General for the District of Columbia, argued the cause for appellees Anthony A. Williams et al. With him on the opposition were Robert J. Spagnoletti, Attorney General, and Mary L. Wilson, Assistant Attorney General.

James R. Wrathall argued the cause for appellee Sierra Club. With him on the opposition were Brian Boynton and James B. Dougherty.

Before: HENDERSON, RANDOLPH and ROBERTS, Circuit Judges.

Opinion for the court filed PER CURIAM.

Concurring opinion filed by Circuit Judge HENDERSON.

Page 669

PER CURIAM.


The District of Columbia City Council (D.C.Council) has passed an ordinance, the Terrorism Prevention in Hazardous Materials Transportation Emergency Act of 2005 (D.C.Act), banning all shipments by rail or truck of certain hazardous materials within 2.2 miles of the United States Capitol. CSX Transportation, Inc. (CSXT) has filed an emergency motion seeking reversal of the district court's denial of a preliminary injunction against enforcement of the D.C. Act. Because we conclude that CSXT has satisfied the standards for a preliminary injunction, we reverse the district court and remand with direction to the district court to enter a preliminary injunction.

I.

The D.C. Council passed the D.C. Act on February 1, 2005 in an effort to reduce the risk of a terrorist attack on shipments of hazardous materials near the United States Capitol. Mayor Anthony Williams signed the D.C. Act on February 15, 2005. The D.C. Act prohibits the shipment by rail or truck of hazardous materials in specified categories, including explosives, flammable gases, poisonous gases and other poisonous materials (Banned Materials), within 2.2 miles of the United States Capitol Building (Capitol Exclusion Zone) without a permit from the D.C. Department of Transportation (DCDOT). See D.C. Act § 4(a).1 Because the D.C. Act is emergency legislation, it was passed on only one reading by the D.C. Council, was not reviewed by the Congress and is effective for only 90 days. See Home Rule Act §§ 412(a) (D.C.Code § 1-204.12); 602(c)(1) (D.C.Code § 1-206.02).2

On February 16, 2005, CSXT sued the District of Columbia (District) and Mayor Williams, in his official capacity, in district court, seeking a declaration that the D.C. Act is invalid and an injunction against its implementation and enforcement. CSXT is a Class I freight railroad that operates a north-south rail line from Florida to Boston and an east-west line from the District of Columbia to Chicago and St. Louis. For decades, CSXT has regularly transported Banned Materials on these two lines, both of which pass through the Capitol Exclusion Zone. CSXT alleges that the D.C. Act would require extensive rerouting of Banned Materials to CSXT's other rail lines, resulting in a significant increase in the total miles over which such materials travel and the total time the materials are in transit. See Amended Complaint ¶¶ 71-73.

CSXT asserts the D.C. Act is preempted by the Federal Railroad Safety Act (FRSA), 49 U.S.C. §§ 20101-20153.3 See id. ¶ 98. Accordingly, on February 22, 2005

Page 670

CSXT moved for a preliminary injunction, seeking to enjoin enforcement of the D.C. Act. In a Statement of Interest filed on February 25, 2005, the United States made clear that it also believes the D.C. Act is preempted by the FRSA. See Statement of Interest at 9-15. The Sierra Club intervened to defend the validity of the D.C. Act. On April 18, 2005 the district court denied the preliminary injunction. Acknowledging that CSXT's legal arguments are "not trivial," the court determined that on the record before it CSXT is not likely to succeed on the merits. Id. at 61-63. It also determined that the balance of equities favors the District in light of the potential devastation that could occur in the event of a terrorist attack on a railcar transporting Banned Materials within the Capitol Exclusion Zone. Id. at 75. The same day the district court denied preliminary injunctive relief, CSXT filed an emergency motion in this court, seeking reversal of the district court's order.4 This court held a hearing on the emergency motion on April 27, 2005.

II.

In considering whether to grant preliminary injunctive relief, the court must consider whether: (1) the party seeking the injunction has a substantial likelihood of success on the merits; (2) the party seeking the injunction will be irreparably injured if relief is withheld; (3) an injunction will not substantially harm other parties; and (4) an injunction would further the public interest. See Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C.Cir.1998); Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977). The test is a flexible one. "If the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak." CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.Cir.1995). We have often recognized that injunctive relief may be justified, for example, "where there is a particularly strong likelihood of success on the merits even if there is a relatively slight showing of irreparable injury." Id. We review the district court's weighing of the four factors under the abuse of discretion standard and its findings of fact under the clearly erroneous standard. Serono, 158 F.3d at 1318. To the extent the district court's decision turns on questions of law, however, our review is de novo. Id.

CSXT and the United States contend that CSXT has a substantial likelihood of success on the merits of the argument that the D.C. Act is preempted by the FRSA. The Congress enacted the FRSA to "promote safety in every area of railroad operations and to reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. Section 434 of the FRSA mandates that throughout the United States "[l]aws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable." Id. § 20106. Section 20106 of the FRSA delineates the circumstances under which a State may nonetheless act. A State is permitted to enact a law "related to railroad safety or security" until the United States Department of Transportation (DOT) or the United States Department of Homeland Security (DHS) issues a regulation "covering the subject matter of the State requirement." Id.5 Even after such

Page 671

a federal regulation issues, a State may adopt a more stringent law when "necessary to eliminate or reduce an essentially local safety or security hazard" if it "is not incompatible" with the federal regulation and "does not unreasonably burden interstate commerce." Id.

CSXT and the United States argue that DOT has "covered the subject matter" addressed in the D.C. Act, i.e., the en route security of hazardous materials transportation by rail, by issuing a final rule, known as HM-232, addressing "Security Requirements for Offerors and Transporters of Hazardous Materials."6 68 Fed. Reg. 14,510 (Mar. 25, 2003). HM-232 was enacted in response to security concerns arising from the terrorist attacks of September 11, 2001 and subsequent threats related to hazardous materials. See Notice of Proposed Rulemaking, 67 Fed. Reg. 22,028, 22,028 (May 2, 2002); see also 68 Fed. Reg. at 14,511 ("We believe that the new requirements in this final rule will enhance the security of hazardous materials in transportation and, thus, help to deter and prevent terrorists from using hazardous materials in the transportation system as weapons of destruction or intimidation."). Under HM-232, rail carriers (as well as motor carriers) are required to develop and implement security plans for transporting hazardous materials. See 49 C.F.R. § 172.800-04. The security plans must address personnel security (such as background checks), unauthorized access to hazardous materials, and, most importantly, "the security risks of shipments of hazardous materials ... en route from origin to destination." Id. § 172.802 (emphasis added). The regulations are enforced through civil penalties. See 49 U.S.C. § 5123; 49 C.F.R. §§ 1.49(s), 1.53(b); 49 C.F.R. pt. 107, subpt. D, app. A.

To "cover the subject matter," HM-232 must "substantially subsume" the subject matter of the state law, not merely "touch upon" or "relate to" it. See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). In asserting that HM-232 substantially subsumes the subject matter of the D.C. Act, the United States points out that DOT specifically considered and rejected imposing particular security requirements, such as routing restrictions in...

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