Throughout the 19th and early 20th centuries, towns in the western United States grew and thrived around the railroad. In fact, the railroad tracks often became a central geographic feature within towns, birthing the colloquial phrase “the other side of the tracks.” But with increasing train traffic, largely due to unit trains transporting Bakken crude oil, many small-town residents complain that traveling to the other side of the tracks now takes considerably more time.[1]

Frustrated with delays caused by idle trains, two North Dakota towns have taken action to limit the time trains may block railroad crossings.[2] One town—Enderlin—passed an ordinance to that effect in October 2014.[3] Last week, the Enderlin City Council repealed its ordinance in response to a lawsuit and pending preliminary injunction motion filed by Canadian Pacific.[4]

The other town—Berthold—chose a different route. Berthold ordered its police chief to ticket railroads for blocking both the town’s crossings for more than 20 minutes.[5] Rather than pass its own ordinance, Berthold relies on a seemingly little enforced provision of the North Dakota Century Code.[6] Now, BNSF Railway engineers face a penalty of up to 30 days in jail and up to a $1,500 fine under state law for blocking railroad crossings in Berthold.[7]

While Enderlin backed down from its ordinance in the face of Canadian Pacific’s lawsuit, Berthold’s action presents a different hurdle. If BNSF files a lawsuit, BNSF will not be suing a small municipality with limited financial means for extraneous litigation costs. Rather, BNSF must challenge the validity of a state statute, which likely requires the North Dakota Attorney General to defend that law.[8] And unlike the Enderlin City Council quickly repealing its ordinance, the North Dakota Legislature is unlikely to take any action related to the lawsuit.

Although the towns’ actions directly target railroads, if validated by a court, similar ordinances and state laws could induce further delay into a railroad infrastructure already overburdened with record traffic. Furthermore, additional North Dakota municipalities—and potentially towns in other states with similar laws—may begin enforcing the railroad crossing prohibition.

Why should anyone but the railroads care? Other industries should take notice because additional railroad delays mean longer transportation times for all commodities, which impacts, for example, crude oil producers, refineries, farmers, coal producers, and power plants.

Conflicts between commodities—generally attributed to increases in crude-by-rail traffic in North Dakota[9]—have already attracted the attention of the Surface Transportation Board and have pitted industries against one another to secure a timely supply chain.[10] Delays related to local and state interference with railroad operations may draw further attention from the federal regulators, with uncertain results for shipping crude oil by rail.

In the near term, BNSF will likely file a lawsuit, challenging Berthold’s enforcement of the North Dakota law on grounds of federal preemption of railroad operations. If that lawsuit proves unsuccessful, however, more North Dakota municipalities—and other towns in states with similar statutes—may begin enforcing the railroad crossing law. Because of the far-reaching implications of increasing local and state interest in control of railroad operations, trade associations and individual companies should increase the priority of this issue.