- The Washington Times - Wednesday, March 23, 2005

A federal judge is expected to rule in the next couple of weeks on whether the D.C. government has the authority to ban trains carrying hazardous chemicals through the city.

Rail operator CSX Corp. is suing the city and argued repeatedly in court yesterday that the D.C. Council has no authority to pass the law, scheduled to take effect April 11.

“The District of Columbia government is a scofflaw,” said CSX attorney Irvin Nathan. He apologized for the remark after a reprimand from U.S. District Judge Emmett G. Sullivan.

During the four-hour hearing, which grew contentious at times, Judge Sullivan repeatedly questioned whether CSX or the federal government had a security plan to protect city residents if terrorists attacked a rail car containing chlorine gas.

The council passed the legislation Feb. 1, citing statistics showing that 100,000 people could die in an attack on a train containing such a chemical.

The judge also pointed to congressional testimony in which President Bush’s liaison to the Homeland Security Department said little has been done since the September 11 terrorist attacks to improve rail security.

“D.C. is saying the federal government isn’t doing anything. They’re saying we’re concerned, and we’re doing something about it,” Judge Sullivan said. “I need to determine as a matter of fact and law what the federal government is doing to determine if the actions of the city council are appropriate.”

Attorneys for the Justice Department said the federal government delegated security plans to the railroad companies and that the details are not classified, but confidential.

Carolyn McKee said she will ask the Transportation Security Administration to quickly decide whether the plans can be shared with attorneys for the D.C. government. She volunteered to give them to the judge to consider in his ruling.

Mr. Nathan, however, argued that even if the federal government and CSX were doing nothing to protect the rails, it would be up to Congress or Homeland Security officials to address — not the city.

Mr. Nathan said the ban on hazardous materials would cause irreparable harm and the cost of rerouting 11,000 rail cars a year would be up to $3 million. He also warned the judge that other cities such as Baltimore and Philadelphia are lining up to pass similar legislation, which could cripple the rail industry.

“All eyes are on this court,” Mr. Nathan said.

The judge pressed defense attorneys on whether the D.C. government merely was exporting the problem and putting at risk the lives of people in other parts of the country.

Robert Utiger, an attorney for the city, argued that the District is in a unique position because it is more likely to be a terrorist target because it is home to Congress, the White House and the Supreme Court.

He pointed to Federal Aviation Administration regulations on flights around the city as proof.

“This country is at war,” Mr. Utiger said. “In war, you take casualties, but you attempt to minimize them.”

The judge said he likely will issue an order on CSX’s request for an injunction a few days before the city’s ban is scheduled to take effect.

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