Chances dim for Senate vote on rail safety bill: Consultant

November 29, 2023

Prospects for rail safety legislation in Congress to move forward in the waning weeks of 2023 appear dim, given other pressing national issues and even “mental exhaustion” among politicians, according to a former U.S. Department of Transportation official who now heads a consulting firm.

“I think the bottom line is that it’s probably unlikely at this point that we’re gonna see any legislation this year. And next year — being an election year — is also looking pretty grim as far as prospects for the bill,” said Loren A. Smith Jr., president of Skyline Policy Risk Group, a research and consulting firm focused on the supply chain. Smith previously served as deputy assistant secretary for policy at DOT.

Following the Feb. 3 derailment of a Norfolk Southern train in East Palestine, Ohio, members of Congress rallied to produce legislation that could prevent similar derailments.

While no injuries occurred as a result of that derailment, about 20 cars involved in the derailment contained hazardous materials. Several days after the incident, public officials and NS decided to vent five tank cars containing vinyl chloride out of concern that the cars could explode because of chemical reactions happening inside the rail cars. The large plume of smoke from the venting rattled the community and raised concerns about local air quality.

Among the bills in Congress that appeared to have some momentum initially was the Railway Safety Act, which was introduced by the Senate delegation representing Ohio and Pennsylvania as well as senators from several other states. That bill passed a Senate committee vote in May, although mostly along party lines, with Republican senators expressing reservations about the potential costs of regulatory compliance, as well as the inclusion of a provision in the bill that would require a minimum train crew size.

However, since then, the bill has seen neither debate nor a vote on the Senate floor. Besides requiring a minimum train crew size, which may have been one of the more controversial elements of the bill, other provisions included protecting and better equipping local emergency responders; requiring increased deployment of wayside defect detectors; expanding the types of chemicals that would trigger specific safety requirements; restricting speeds of trains that are carrying large amounts of flammable liquids and passing through urban areas; notifying states about the types and frequency of trains transporting hazardous materials through the state; prohibiting the railroads from imposing time restrictions on those inspecting trains; and raising fines for violating rail safety regulations from $100,000 to $10 million.

Senate Majority Leader Chuck Schumer decides when the bill will get a floor vote, according to Senate Commerce Committee spokesperson Maurie Mueller.

Schumer’s office didn’t return a request for comment, but the chances that a vote will occur in the last three weeks that Congress is in session appear slim, according to Smith. Congress is in session from after the week after Thanksgiving to Dec. 15, and then it will be in recess until January.

A full Senate vote in December is unlikely for several reasons, Smith said. For starters, Congress tends to move forward with legislation when there’s a deadline attached, like a fiscal cliff or a government shutdown that “forces the two sides to evaluate the risk of nothing happening,” he told FreightWaves.

“When you have one or both of the sides decide the risk of inaction is too high to tolerate, a deal ends up getting cut,” Smith said.

“Because you don’t have a deadline for action, there’s not really sort of a lever there — a third force that [compels action from] the two sides. And I think that’s a real challenge here.”

Also, “there are a couple of things that have forced the two sides back to the standard corners: The [Biden] administration is moving ahead with regulatory changes on their own side, on things like the minimum crew size rule. So, that lowers the urgency from the administration side on getting a bill though,” Smith said. Labor-aligned provisions in the bill might also potentially be affecting the number of Senate votes the bill could receive, he added.

Ensuring that the bill can receive 60 votes in the Senate is important so that the bill can get past a possible filibuster. While bill co-sponsor and Republican Sen. J.D. Vance of Ohio has argued that his bill is within striking distance of 60 votes, Smith says support appears to have been “stuck at 58” votes for some time.

Another challenge is that any rail safety bill moving forward in the Republican-majority House of Representatives is likely to look a lot different from the Senate bill, so “there’s a question of what’s left in the Venn diagram between the two legislative proposals that would be worth moving forward” in the House and the Senate, Smith said.

“It doesn’t seem right now like there’s any real appetite to dial back to some sort of least common denominator between the two bills. So I think that’s probably where things stand,” Smith said.

Other issues are also affecting the rail safety bill’s ability to move forward.

The National Transportation Safety Board’s final investigation report on the train derailment in East Palestine has not yet been released, and some House members have indicated they are waiting to move on rail safety legislation until that report and its recommendations to the industry come out, Smith said.

Another is that Congress has been busy with other matters, including passing a continuing resolution in November to keep the federal government open, fighting over who should be the next speaker of the House, debating how to respond to the conflicts in Israel and Ukraine and working on passing the National Defense Authorization Act, according to Smith.

“The floor of the House and the floor of the Senate can only handle one thing at a time,” he said.

Indeed, in light of all that’s happened in Congress since this summer, “there’s probably a little bit of mental exhaustion too on all sides in terms of what you do next. That’s definitely pushing the rail issue down the radar screen,” Smith said.

Despite these hindrances, the Senate should still consider putting the rail safety bill to a vote as a means to pressure lawmakers to move forward with the issue, Greg Regan, president of the Transportation Trades Department (TTD), told FreightWaves. TTD is affiliated with the AFL-CIO.

“Our contention is, put it on the floor. Make people vote against it. I think there’s a lot of stuff in there — there’s not everything we would like to see in terms of reforms in the industry — but there’s a lot of commonsense stuff in here, and I’d love to make somebody vote no on some of the basic safety reforms in there. At the very least, to show where people [stand] on this stuff. So that’s what we’re really pushing for at the moment,” Regan said.

He continued, “I think that if and once the Senate acts and if they pass something, it will put a lot more pressure on the House to follow suit. It’s going to be tough in this environment right now to get across the finish line. But that doesn’t mean we’re going to stop trying.”

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