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Judge refuses to block D.C. hazmat shipping ban


A federal judge declined to block the District of Columbia yesterday from prohibiting the transport of highly hazardous material through the capital, saying he would not interfere with its efforts to protect its citizens from a "catastrophe."

In a ruling with potential implications for Baltimore, U.S. District Judge Emmet G. Sullivan denied CSX Transportation a preliminary injunction that would have prevented the district from enforcing the law, which was passed by the D.C. council in February.

Sullivan rejected the assertion by the railroad - and the Bush administration - that the D.C. government had intruded on federal turf by banning shipments of materials such as chlorine from a 2.2-mile radius around the Capitol. The judge said that because the federal government had not acted to regulate such traffic, the states and the district could act to protect their citizens.

CSX, the only railroad affected, operates two lines in Washington, one of which runs within four blocks of the Capitol. District of Columbia lawmakers contend that such shipments create an inviting target for terrorists.

The decision, if upheld, could have logistical and political ripple effects in Baltimore, where Mayor Martin O'Malley has been at odds with CSX over the railroad's policy of shipping hazardous materials through the city without advance notice.

Some advocates contend that if CSX is forced to reroute some shipments to the west to avoid Washington, those railcars also might avoid passing through Baltimore.

But the railroad argues that the ban heightens the risk to other jurisdictions by ensuring that hazardous materials will spend more time in transit.

A similar measure has been introduced in the Baltimore City Council by Councilman Kenneth N. Harris Sr., who hailed yesterday's ruling as a recognition that CSX "does not have its act together."

Racquel Guillory, O'Malley's press secretary, praised Sullivan's ruling as "a step forward."

"The locals should have the responsibility, or the feds should take the responsibility," she said. But Guillory said the mayor is neither endorsing the Harris legislation nor ruling it out. She said O'Malley welcomes a debate on the issue.

Saying it would file an appeal as soon as possible, CSX released a statement in which it pointed to the Baltimore legislation as a reason to challenge the ruling.

"The District's law could establish a precedent that could lead to a patchwork of similar laws that could virtually shut down rail transportation of critical commodities in the United States," it said.

Sullivan rejected CSX's contention that the D.C. ordinance violates the Constitution's commerce clause. His ruling indicated that other cities' laws might face more scrutiny because Washington's government is analogous to that of a state.

"A favorable decision for the District of Columbia here would not necessarily support copycat municipal ordinances," he wrote.

But in all other respects, Sullivan's opinion soundly rejected the views of CSX and the Bush administration.

Sullivan, originally named to the Superior Court of the District of Columbia by President Ronald Reagan and promoted to the U.S. District Court by President Bill Clinton, ruled that the federal government has not addressed the threat of a terrorist attack on rail shipments. He found that where the U.S. government has not acted, the states - and by extension, the District of Columbia - may act to protect their citizens.

"Complete preemption of state safety laws would leave the country defenseless until the federal government can discover, study and respond to each and every risk," Sullivan wrote.

During hearings on the CSX motion, the judge received a behind-closed-doors briefing from federal safety experts on the government's approach to rail security.

Without disclosing its contents, he indicated that he was not impressed, calling the government's presentation "untested, uncorroborated and unsubstantiated."

Sullivan rejected CSX's argument that the law puts an undue burden on its operations. "These burdens pale in comparison to the potential devastation predicted to occur in the event of a terrorist attack on a railcar transporting hazmats in the Nation's Capital," he wrote.

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