Senate markup highlights tension in rail safety talks

The Senate Commerce, Science and Transportation Committee voted 16-11 to advance a bill, aimed at improving rail safety, that was born out of the February Norfolk Southern train derailment in East Palestine, Ohio.

Although the bill was touted as a "bipartisan" response — Ohio Democratic Sen. Sherrod Brown introduced it with Ohio Republican Sen. J.D. Vance, and it has since gained support from former President Donald Trump — the markup laid bare the limits of bipartisanship as some Republicans said they doubt the need for more rail regulations.

"I remain concerned this bill is overly and needlessly prescriptive in certain places … I'm very concerned about giving broad authority to the Biden administration," said ranking Republican Ted Cruz of Texas. "President Biden and Secretary Buttigieg would have a free hand to aggressively restrict the movement of coal, oil, natural gas and other essential commodities."

Cruz was referring to provisions to direct the Transportation Department to establish new safety regulations for trains carrying hazardous materials that are not classified as "high-hazard flammable," as well as regulations requiring railroads to notify states when they are passing through, limiting train length and restricting speeds.

The legislation would also require that all trains have a minimum of two crew members aboard — a rule that Norfolk Southern has lobbied against in the past — and would increase the maximum fine DOT can issue a rail company for safety violations from $225,000 to $10 million.

Cruz, who voted against the bill, seemed confident that it would not get the 60 votes necessary to pass the Senate floor, let alone in the Republican-controlled House.

Republicans offered amendments aimed at limiting regulations on the rail industry and tempering the Biden administration's control over new rulemakings. Sen. Cynthia Lummis, R-Wyo., withdrew an amendment to strike minimum crew requirements. Cruz offered two — one, which he withdrew, would have prohibited DOT from restricting LNG transport via rail, and another, which was rejected, would have created a new framework for the cost-benefit analysis of the bill.

Minority Whip John Thune, R-S.D., offered an amendment that would have struck a provision providing "unlimited" authorizations for commuter rail, arguing that it's "not a smart use of taxpayer money."

"I think it's it's crucial that Norfolk Southern be held accountable and that we make what I think are pragmatic reforms that are responsive to what we've learned about the factors contributing to the East Palestine realm," Thune said, adding that he supports provisions in the bill requiring defect detectors and emergency response updates. "Otherwise, there's not much in the proposed legislation that would address the root cause of East Palestine based on what we know so far."

The National Transportation Safety Board has yet to release its final report on the East Palestine derailment, although a preliminary report released in February listed a number of contributing factors.

Vance countered that Cruz has supported "a number of pieces of legislation, even out of this committee, to give plenty of discretion to the Biden administration."

"If we can give the secretary discretion over capital gains tax cuts for CEOs, surely we can give the secretary discretion to make communities like East Palestine safer," he said. "We’ve made a number of concessions to the rail industry."

Panel Chair Maria Cantwell, D-Wash., said she's not certain if the bill will fall short of 60 floor votes. She said Vance has picked up support for it and "you never know what's gonna happen until the day it happens."

"I think there's quite a bit of comfort right now with the provisions in this bill, because the people in the industry think it's the right thing, in addition to people here who were thinking that this is the right level of safety," she said. "So sure, we can have some discussions about the one or two things that some people have opposition to."

It's not clear if the House will take up the legislation. House Transportation and Infrastructure Chairman Sam Graves, R-Mo., has said he intends to wait for the final NTSB report before taking on relevant legislation.

Before voting, the panel adopted a substitute amendment with number of changes, including adding language to expand Hazardous Materials Emergency Preparedness grants for firefighters to purchase gear, empower the DOT secretary to declare a significant hazardous materials transportation incident, and expend up to $10 million to eligible entities responding to such an incident.