Michael expresses concern over our editorial yesterday urging Congress to reject the Railway Safety Act.
He writes, “It’s uncontroversial for conservatives to regulate private industry to prevent industry from imposing on the public.” Indeed, that is uncontroversial. Numerous safety regulations for trains already exist, and the editorial in no way argues that they are illegitimate or should be reduced. A common misconception that has permeated this debate over the past few months is that rail deregulation has allowed safety to fall off. It isn’t true. Freight rail was economically deregulated with the Staggers Act in 1980. That reformed the Interstate Commerce Commission (which has since been replaced by the Surface Transportation Board) and removed government’s ability to set freight rates. Safety regulation is done by the Federal Railroad Administration (FRA).
The Staggers Act has been a success for safety. Because it allowed freight rates to drop, it made trains more competitive with trucks, their rival for land transportation, which made railroads financially self-sustaining. In the late ’70s, freight rail was going the way of passenger rail: strangled in economic regulation and soon to be taken over by government. The Staggers Act prevented that outcome, and newly financially sound railroads could invest in infrastructure improvements and safety devices above and beyond what regulators require. Trains are much safer today than they were before the Staggers Act was passed, and the industry continues to invent new technology to prevent accidents.
As for derailments, it is true that there are about three per day, but since the accident in East Palestine, the media have been waging a scare campaign by reporting on them as national events. You didn’t often hear about train derailments before because, unlike East Palestine, most of them are insignificant. Railroads are required to report derailments to the FRA if they cause over $12,000 in damage, which is not hard to do considering that locomotives cost over $3 million. Most of the derailments reported occur in rail yards at very slow speeds, not on main lines. It’s very rare for anyone to be hurt by them, let alone killed. Derailments caused zero deaths in 2019 and 2020, and three in 2021.
The preferability of trains over trucks for safety is not really in dispute, and I was surprised to see Michael question it. As I wrote last month:
Between 1990 and 2021, there were 519,118 hazardous-materials incidents in the U.S., resulting in 462 total fatalities. Eighty-eight percent of those incidents were on highways, as were 328 of those fatalities. Only 21 fatalities were on railroads. Roughly twice as many people were injured in hazardous-materials accidents on highways than in accidents on rail in that same period, and property damage was over 2.5 times higher.
Trains always have the right of way, operate on fixed tracks, and don’t have to worry about crashing into other random vehicles. That’s especially true since the adoption of positive train control, which maintains proper speed and spacing between trains. Every freight main line in the U.S. has positive train control, a project that railroads completed in 2020.
The stubborn fact remains that the top cause of train accidents is human error. That’s why automation is so promising, and it’s important that government stay out of the way so as not to forestall technological progress. As the editorial mentions, we’ve seen what can happen when government prioritizes union jobs over safety with the example of automated track inspection (ATI). The FRA under Biden appointees halted a program testing ATI after receiving complaints from the maintenance-of-way workers’ union, despite the data showing that it improved safety. A federal court of appeals has since ruled that the FRA’s pause was arbitrary and capricious.
The Railway Safety Act wouldn’t prevent the development of ATI, but it could discourage the development of other automated safety technology by legally requiring railcar inspections by humans and two-man train crews. Michael finds this argument absurd. He writes, “Either the two-man crew is a sop to organized labor, or it is industry standard that has little effect. It can’t really be both.” It can, though, when you consider time. Right now, a two-man-crew mandate would have little effect, since that is currently the standard. In the future, a two-man-crew mandate would prevent the automation of trains. We know how hard it is to repeal laws once they are passed. If railroads know that they are legally required to have two crewmen in the cab, they have less reason to pursue automation, since it won’t save on labor costs. Freezing current levels of labor productivity by statute is a sop to organized labor, as I’ve argued before.
The crew-size mandate is not a new issue, and it has little to do with safety. Unions have been demanding it for years. Passenger trains and some short-line freight railroads in the U.S. have long operated with one man in the cab. The FRA has struggled over this question numerous times across multiple administrations and has yet to find conclusive evidence that a crew-size mandate would enhance safety.
Michael points to the Lac-Mégantic accident in Canada from 2013, but that’s a bad example. Canada could have required 50 men to pile in the cab like a clown car, but the fact is the train that crashed in Lac-Mégantic was a runaway with zero people on board. It was parked on an incline and left unattended overnight on a main line with a faulty locomotive that experienced an air-brake failure with insufficient handbrakes applied, leading it to accelerate downhill and crash at 65 miles per hour, killing 47 people in the town. The FRA responded to the accident by strengthening regulations on securing unattended trains, which was sensible. The Canadian investigation considered whether the train’s one-man crew contributed to the accident and was unable to conclude that having another crew member would have made a difference.
The railroad responsible for the Lac-Mégantic disaster went out of business, which is a good reminder of why railroads have strong incentive to prevent accidents. The East Palestine accident has been terrible for Norfolk Southern. They don’t want more train accidents. Railroads have developed technology such as wayside hotbox detectors on their own, without government requiring them. Michael overstates the current average interval between hotbox detectors (“every 40 miles”). They are currently 25 miles apart, on average, according to the FRA. The hotbox detectors near East Palestine were spaced closer than that (at ten miles and at 20 miles), driving home just how unusual that accident was.
“The bill enhances train safety without onerous costs,” Michael writes, but the point of the editorial is that just because it’s called the ‘Railway Safety Act’ doesn’t mean it enhances railway safety. He never considers the perverse incentives of the bill that would encourage railroads to put more hazmat cars together on the same train, or the vast expansion of power that the bill gives to the secretary of transportation. His puzzling rejection of the safety of trains over trucks, contrary to the evidence, means he misses the danger of incentivizing more truck transport of hazardous materials.
As a political matter, it remains unclear why Republican senators should team up with Democrats to make Pete Buttigieg more powerful by supporting a bill with safety implications that are unclear at best for an industry that is already extremely safe. We just got done with the Covid pandemic’s demonstration that there’s a difference between safety and safetyism and that safetyism can have deleterious unintended consequences. Yet, as we see with this bill, policy-makers can still put the word “safety” on something and receive uncritical support.