Shelburne residents continue to be concerned about Vermont Railway’s plan to erect an intermodal facility on the parcel west of Harbor Industries.
Vermont Railway claims federal preemption regarding local permits, but that is very much a matter of contention. At the March 7 hearing of Vermont Railway, Inc. v. The Town of Shelburne, the court held that the railroad’s assertion of preemption was premature. Judge William Sessions ordered a full evidentiary hearing which is scheduled for May 3, 4 and 5.
Matt Krogh, forest ethics director of extreme oil from the Stand environmental advocacy group said, “In virtually every conflict that I’ve seen between railroads and communities over facility siting, the federal preemption issue–even when it doesn’t apply–is used by the railroads to create a sense of inevitability around a project. ‘There’s nothing you can do.’”
In a legal analysis document authored by Legislative Counsel and Records Officer Helena Gardner, some of what governs preemption and exceptions to it are laid out. In it, Gardner states, “Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable.”
However, that does not mean that states and localities have no say. “A State may adopt or continue in force a law, regulations, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security…” the document goes on to state.
“[A railroad] would have to comply with general state and local permits as long as they’re not trying to regulate the activities of the railway itself,” said Professor Ken Rumelt from the Environmental and Natural Resources Law Clinic at Vermont Law School.
Rumelt noted that it is hard to determine what does and does not fall within the scope of preemption. While Congress intended for broad preemptive powers, there are still many things such as clean air that do not fall under that umbrella. Rumelt said that states and municipalities are not preempted from imposing safety standards on rail projects.
The discussion about permitting, however, is just a small part of a larger one about rail safety.
“The problem for many of us on these issues is that rail really is a great solution in terms of freight efficiency, but once facilities are built, there are few to no restrictions on the railroads bringing in toxic, explosive cargoes,” Krogh said.
“My constant refrain is that this is not one or two towns’ issue. This is an issue that the entire state of Vermont needs to get a handle on ASAP. Vermont must be proactive and learn from what has been happening with the recent events and dialogue on rail safety and federal regulations right next door to us in Albany and in Canada…and take action before it’s too late to do anything,” Lydia Clemmons, member of Citizens for Responsible Railroads, said.
What lies ahead depends on a number of factors. On March 17, Selectboard Chair Gary von Stange again reached out to David Wulfson, president of Vermont Rail System, to request a meeting between the board and the railway. One item von Stange would like to see on the agenda would be talks for the purchase of the parcel “at a price reflective of the $675k purchase price and the $729k assessed valuation.” He also said the town wants to discuss “staying the litigation in its entirety if VRS would simply agree to Agency Review [and] go before the Shelburne DRB and the Act 250 panel.”
What comes next will be dependent on the outcome of the evidentiary hearing; a final decision will come within weeks or months afterward. It could be that the railway will need permits it did not obtain, or the claims of preemption may be held. Either way, the losing party may appeal.