In a recent preemption decision, the Surface Transportation Board (“STB”) rejected a city’s attempt to mandate that a railroad reinstall a grade crossing. The STB’s order appears to call into question the enforceability of state grade crossing removal laws. Yet, the exceptional circumstances involved with this removal indicate that railroads will not be able to rely on this decision to violate state crossing laws with impunity.

In 2017, the City of Ozark, Arkansas (“City”) petitioned the STB for an order declaring that the City could require the Union Pacific Railroad Company (“UP”) to reinstall an at-grade rail crossing UP had removed in 2001.1 The City asserted that UP violated state law when it removed the crossing because the City itself did not follow the appropriate approval process for granting crossing removal authority. Further, the City argued that because the crossing had existed for 85 years before the UP removed it, its reinstallation would not interfere with railroad operations and therefore the City’s order was not preempted by federal law.2 UP argued that reinstallation would unreasonably interfere with rail operations and use of a siding it had installed where the crossing had been located.3 UP also argued that reinstalling the crossing would have a negative impact on safety.

The STB has jurisdiction over “transportation by rail carrier.”5 Federal law specifies that “remedies provided under [the law] with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.” The STB determined that allowing the City to force UP to reinstall the crossing is preempted because it “would unreasonably interfere with UP’s present and future railroad operations and cause undue safety risks.”6 In its decision, the STB noted that the proposed crossing location “would restrict UP’s use of the side tracks, causing trains and equipment that otherwise would have been cleared onto the side tracks to block the mainline and create train delays and inefficiencies in UP’s rail operations.”7

In its preemption analysis, the STB did not address the City’s argument that UP violated state law when it removed the crossing in 2001. The STB noted that it “was not presented with, and does not decide, the separate question of whether reliance on state law to prevent removal of the crossing a decade and a half ago would have been preempted.”8 Therefore, the STB limited its preemption analysis to the remedy sought by the City and not the action taken by the UP.

Although this decision seemingly casts doubt on the enforceability of state laws regulating crossing removal, because the Board did not address the lawfulness of UP’s 2001 crossing removal. STB Commissioner Miller, a former state transportation official, made it clear that railroads may not violate state crossing removal law with impunity. In her concurrence, she stated, “railroads should not conclude that this decision creates a precedent that allows rail carriers to violate state or local laws and then use preemption to escape the consequences.”9 Commissioner Miller concluded that a railroad’s “past conduct would have bearing on whether preemption is applicable – particularly where a railroad’s claim of present and future unreasonable interference is purely the result of its own improper conduct.”10 Here, Commissioner Miller did not believe that UP acted improperly because it had asked for permission to remove the crossing from the City’s mayor at the time and the city council did not object.