Missouri Pacific R. Co. v. Railroad Com'n of Texas, 87-1151

• Decision Date: 10 December 1987
• Docket Number: No. 87-1151,87-1151
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, et al., Plaintiffs-Appellees, v. RAILROAD COMMISSION OF TEXAS, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 570

833 F.2d 570

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

No. 87-1151.

United States Court of Appeals Fifth Circuit.

Dec. 10, 1987.

Douglas Fraser, Jim Mattox, Atty. Gen., Austin, Tex., for defendants-appellants.

Lawrence M. Mann, Washington, D.C., J. Donald Bowen, Houston, Tex., for amicus Railway Labor Executives Ass'n.

Robert B. Burns, Jr., Karl G. Johnson, Wilson, Grosenheider & Burns, Austin, Tex., for all plaintiffs-appellees.

Michael A. Johnson, Hugh L. McCulley, Houston, Tex., for So. Pacific Trans. Co. & St. Louis-SW Railway Co.

Michael E. Roper, Dallas, Tex., for Missouri-Kansas-TX Railroad Co.

Scott R. Craig, Spring, Tex., for Missouri Pacific Railroad.

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

Before REAVLEY, POLITZ, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Several railroads sought declaratory and injunctive relief against the Railroad Commission of Texas ("State" or "Commission") alleging that certain railroad safety regulations recently promulgated by the Commission were preempted by regulations of the Federal Railroad Administration ("FRA"), enforcing the Federal Railroad Safety Act of 1970 ("FRSA"), 45 U.S.C. Sec. 421 et seq. ¹ The railroads alleged federal preemption and asserted inter alia that the Commission's regulations unduly burdened interstate commerce and deprived them of property without due process of law. The district court granted the railroads' motion for partial summary judgment, concluding that the State's safety equipment requirement, 16 T.A.C. 5.617, walkway requirement, 16 T.A.C. 5.619, and vegetation control provision, 16 T.A.C. 5.620(b), were each "specifically preempted by federal regulatory occupation of their subject matter." Missouri Pacific R.R. Co. v. Railroad Comm'n of Texas, 653 F.Supp. 617, 628 (W.D.Tex.1987). Alternatively, the district court concluded that the statewide character of each of the challenged regulations, 16 T.A.C. 5.616-5.620, indicated a failure to respond to "essentially local safety hazards" as required by 45 U.S.C. Sec. 434. Id. at 627-28. The Commission appeals. We affirm in part, reverse in part, and remand.

I.

The Supreme Court has delineated certain principles by which we determine the preemptive scope of federal legislation or regulations under the Supremacy Clause. We "start with the assumption that the historic police powers of the states were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). The first inquiry is "whether Congress explicitly or implicitly declared that the states are prohibited from regulating" precise areas to which state regulations apply. Ray v. Atlantic Richfield Co., 435 U.S. 151, 158, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978). However, "[e]ven if Congress has not completely foreclosed state legislation in a particular area, a state statute is void to the extent that it actually conflicts with a federal statute." Id. "The test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing the superintendence of the field, not whether they are aimed at similar or different objectives." Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963). Finally, " '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, 435 U.S. at 179, 98 S.Ct. at 1004-05. Although on reflection these guides are easier to state than to apply, by their compass we shall try to set our course.

Section 434 of the FRSA provides:

The Congress declares that laws, rules, 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, or standard relating to railroad safety until such time as the Secretary [of Transportation] 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.

By its terms, Sec. 434 mandates national railroad safety standards "to the extent practicable." State regulation may, however, be interposed (1) where no federal standard has yet been adopted "covering the subject matter" of the state regulation or (2) to eliminate or reduce "an essentially local safety hazard." ²

Legislative history does not enlighten our interpretation of how or what FRA regulations "cover the subject matter" of rail safety to the exclusion of continued state efforts. ³ Because the Act specifically preserves a regulatory position for the states, we are reluctant to jump to the conclusion that the Act evinced a "total preemptive intent." Compare National Ass'n of Regulatory Util. Comm'rs v. Coleman, 542 F.2d 11, 13 (3d Cir.1976). Instead, we will attempt pragmatically to reconcile the scope of FRA regulations with the state regulations by considering whether in light of Congressional policy and FRA actions, a national rule, regulation, order or standard has been adopted "covering the subject matter" of the state regulations.

II.

A.

The Commission's walkway requirement poses the most difficult preemption issue. Section 5.619 defines a walkway as "a pathway located alongside a railroad track or railroad switch for the purpose of providing an area for a railroad employee to perform duties associated with that track." The required walkways are intended to provide a surface to support railroad employees working alongside railroad rolling equipment and track. The regulation establishes walkway surface, slope, and width specifications and requires walkways to be constructed along both sides of all tracks within rail yards.

Literally and figuratively, the walkways required by state regulations sit atop and adjoin the roadbed for which FRA has prescribed minimum specifications. The federal regulation governs roadbed, track geometry and track structure and specifically covers areas "adjacent to the roadbed" as well as track gauge, alignment, surface, ballast, drainage and component parts. 49 C.F.R. 213.31-213.143 (1986).

The Commission supports its regulation with a concededly appealing argument that FRA has not "covered the subject matter" of walkways because federal regulations do not mandate walkways. As the FRSA focuses on safety, whether or not a particular state regulation "covers the subject matter" of a federal regulation should be analyzed, according to the Commission, in terms of its precise safety concerns. This argument has found favor with several courts. ⁴ We reject this analysis as overly simplistic.

We have already observed that the Supreme Court in Florida Lime & Avocado Growers, supra, refused to resolve preemption issues by merely comparing the objectives of the federal and state regulations. If the purpose of the state regulation was alone controlling, a state could enact a walkway requirement or other safety regulation that hindered or prevented a railroad from complying simultaneously with an FRA regulation designed to enhance safety in a different area. Federal superintendence of the field would be thwarted by such a mincing construction of whether FRA regulations "cover the subject matter."

Further, the scope of preemption under Sec. 434 is informed by its introductory language directing the establishment of national rail safety standards "to the extent practicable." It would be impracticable and inconsistent with this intent, if, assuming walkways are integrally related to track structure and composition, 50 states could establish individual walkway regulations in addition to the FRA standards.

Consequently, "covering the subject matter" must have a practical as well as a policy dimension under the FRSA. It must be "practicable" to permit some state regulation of railroad walkways consistent with FRA track structure and construction requirements. In drawing this conclusion, we find instructive the Supreme Court's decision in Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978). There, the Court invalidated a Washington state regulation that purported to set minimum safety standards for oil tankers intending to traverse Puget Sound. The Court held that the Federal Tank Vessel Act and its regulatory implementation preempted "state efforts to mandate different or higher design requirements" for oil tankers. Id. at 166, 98 S.Ct. at 998 (footnote omitted). The Court's interpretation of the applicable federal laws led it to conclude that "Congress did not anticipate that a vessel found to be in compliance with the Secretary's design and construction regulations ... would nevertheless be barred by state law from operating in the navigable waters of the United States on the ground that its design characteristics constitute an undue hazard." Id. at 163-64, 98 S.Ct. at 997. The Court distinguished cases in which it had upheld state regulations that affected federally registered vessels, where there was no overlap between federal law and state regulations having a different and non-conflicting purpose and implementation. See, e.g., Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4...