Norfolk & Western Ry. Co. v. Public Utilities Com'n of Ohio

Citation926 F.2d 567
Decision Date12 April 1991
Docket NumberNo. 90-3113,90-3113
PartiesNORFOLK & WESTERN RAILWAY COMPANY, Plaintiff-Appellee, v. The PUBLIC UTILITIES COMMISSION OF OHIO, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Daniel A. Brown (argued), Diane C. Reichwein, Paula J. Lloyd, Porter, Wright, Morris & Arthur, Columbus, Ohio, for plaintiff-appellee.

Robert S. Tongren, James B. Gainer (argued), William L. Wright, Asst. Atty. Gen., Public Utilities Section, Columbus, Ohio, for defendant-appellant.

Charles D. Gray, Washington, D.C., for National Ass'n of Regulatory Utility Comr's, amicus curiae.

Lawrence M. Mann, Alper & Mann, Christopher B. Little, Washington, D.C., for Railway Labor Executives, amicus curiae.

John T. Rich, Shea & Gardner, Washington, D.C., for Ohio R.R. Ass'n and The Ass'n of American Railroads, amicus curiae.

Before JONES, RYAN and BOGGS, Circuit Judges.

RYAN, Circuit Judge.

The Public Utilities Commission of Ohio ("PUCO"), appeals the judgment of the district court enjoining it from requiring the Norfolk & Western Railway Company ("the railroad") to maintain or otherwise provide a walkway upon any of its railroad bridges or trestles.

We are presented with the following issues:

-- Whether the district court correctly held that the Federal Railroad Safety Act, 45 U.S.C. Sec. 421, et seq., preempts Ohio Administrative Rule 4901:3-1-05(D); and

-- Whether the district court properly exercised jurisdiction in this case.

We find that the district court correctly concluded that Rule 4901:3-1-05(D) is preempted by 45 U.S.C. Sec. 434, and properly exercised jurisdiction in this case.

This case presents interesting issues of federal preemption and judicial abstention, in the following context:

I.

Norfolk & Western is an interstate rail carrier which owns and operates railroad bridges in the State of Ohio. In March 1987, PUCO ordered the railroad to provide walkways and railings for trainmen along at least one side of two of its bridges, one located in Medina, Ohio, and the other in Akron, Ohio. This order was based upon Ohio Administrative Code Sec. 4901:3-1-05(D) which provides that: "A suitable walk or railing from which trainmen may walk shall be provided along at least one side of all bridges and coal, ore, or other trestles."

On June 23, 1987, the railroad filed this action requesting declaratory and injunctive relief. The district court found that Rule 4901:3-1-05(D) was subject to federal preemption. It granted the railroad summary judgment and enjoined PUCO from enforcing Administrative Rule 4901:3-1-05(D). Norfolk & W. Ry. v. Public Util. Comm'n of Ohio, 727 F.Supp. 367 (S.D.Ohio 1990).

PUCO appeals the summary judgment claiming that because the Federal Railroad Administration ("FRA") has violated 45 U.S.C. Sec. 431(n) by failing to mandate railroad bridge walkways, the states are permitted to implement policies requiring walkways on bridges. Norfolk & Western contends, however, that the doctrine of negative preemption applies because the FRA has "covered" the subject matter in explicitly and affirmatively choosing not to mandate such walkways. Moreover, the railroad argues, section 431(n) reinforces the FRA's exclusive authority to "cover" the area of walkways on railroad bridges.

II.

A. Preemption

We review a grant of summary judgment de novo. Burkart v. Post-Browning, Inc., 859 F.2d 1245, 1249 (6th Cir.1988). A party moving for summary judgment is "entitled to judgment as a matter of law" when there is "no genuine issue as to any material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

In Louisiana Public Serv. Comm'n v. FCC, 476 U.S. 355, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986), the Supreme Court summarized the various tests for determining whether federal law has preempted state legislation:

The Supremacy Clause of Art VI of the Constitution provides Congress with the power to pre-empt state law. Pre-emption occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, when there is outright or actual conflict between federal and state law, where compliance with both federal and state law is in effect physically impossible, where there is implicit in federal law a barrier to state regulation, where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law, or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress.

Id. at 368-69, 106 S.Ct. at 1898 (citations omitted).

The Court has stated that "[p]re-emption may result not only from action taken by Congress itself; a federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation." Id. at 369, 106 S.Ct. at 1899. "The critical question in any pre-emption analysis is always whether Congress intended that federal regulation supersede state law." Id.

The Federal Railroad Safety Act ("Act"), 45 U.S.C. Sec. 421, et seq., authorizes the Secretary of Transportation to adopt railroad safety regulations. One of the purposes of the Act is "to promote safety in all areas of railroad operations." 45 U.S.C. Sec. 421. The Act includes a broad preemption provision excluding the states from legislating in any area of railroad safety already "covered" by the regulations adopted by the secretary. 45 U.S.C. Sec. 434.

Section 434 mandates that all laws and standards relating to railroad safety must be nationally uniform. It provides:

Sec. 434. National uniformity of laws, rules, regulations, orders, and standards relating to railroad safety; State regulation

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, 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.

Thus, the Act preempts individual state regulation except in two circumstances: 1) a state may regulate railroad safety until the FRA has covered the subject matter, and 2) a state may impose a more stringent safety requirement only when necessary to eliminate an essentially local safety hazard.

1.

PUCO argues that its Rule 4901:3-1-05(D) is within the first exception of section 434 because the FRA has not "covered" the subject matter of walkways on railroad bridges; it has promulgated no regulation mandating bridge walkways and indeed, in 1977, explicitly declined to do so. Relying upon the same 1977 FRA pronouncement, the railroad responds that the agency's explicit refusal to adopt a regulation requiring railroad bridge walkways was a determination that a regulation requiring bridge walkways was not appropriate, and thus amounted to negative preemption. We agree.

The United States Supreme Court has recognized a form of negative preemption when a federal agency has determined that no regulation is appropriate. Ray v. Atlantic Richfield Co., 435 U.S. 151, 178, 98 S.Ct. 988, 1004-05, 55 L.Ed.2d 179 (1978). In Ray, the Court held that " 'where failure of ... federal officials affirmatively to exercise their full authority takes on the character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute,' States are not permitted to use their police power to enact such regulation." Id. (citation omitted).

In the referenced 1977 FRA statement, the FRA directly addressed the issue of railroad bridge walkways and decided that a general bridge walkway requirement was not necessary. The FRA stated:

[T]he issuance of a Federal rule requiring walkways on railroad bridges, trestles, and similar structures cannot be justified at the present time. First, any such rule would impose significant added burdens in terms of the large dollar cost to the railroad industry for construction of the walkways, the added hazard to persons and property and additional liability exposure for the railroads because of increased trespassing, and the possible decrease in overall railroad safety because of the diversion of resources from other maintenance and improvement projects. Secondly, neither the commenters nor the FRA has been able to demonstrate that such a rule would result in a definite or measurable improvement to railroad employee safety. Finally, if an employee safety problem does exist because of the lack of walkways in a particular area or on a particular structure, regulation by a State agency that is in a better position to assess the local need is the more appropriate response....

42 Fed.Reg. 22185 (May 2, 1977).

Moreover, the FRA reiterated these conclusions when it terminated rulemaking proceedings with respect to Railroad Occupational Safety and Health Standards in 1978:

FRA has exercised and continues to exercise its jurisdiction over the safety of railroad operations.... FRA has affirmatively determined that issuance of Federal regulations governing walkways on bridges is not warranted based on the projected cost of installation and the collateral safety problems...

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