On November 12, 2021, the U.S. Court of Appeals, D.C. Circuit, overturned an Obama-era emissions rule directed at newly-manufactured trailers.  In order to regulate trailers, either a new regulation will be required, or Congress will need to expressly expand agency authority.   

During the Obama Administration, the Environmental Protection Agency (EPA) promulgated numerous regulations aimed at limiting harmful emissions in various industries and sectors across the country.  One area of emphasis was shipping and trucking, specifically the use of heavy-duty trucks and vans.  In October of 2016, the EPA and the National Highway Traffic Safety Administration (NHTSA) issued a joint final rule, titled “Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles—Phase 2."  81 FR 73478-01 (Oct. 25, 2016). 

On November 4, 2021, the Global Industry Alliance (GIA) for Marine Biosafety, operating under the framework of the GEF-UNDP-IMO GloFouling Partnerships project (www.glofoling.imo.org) released its preliminary results of the study on the Impact of Ship’s Biofouling on Greenhouse Gas Emissions (the “Study”) during the United Nations Climate Change Conference (COP 26). ¹   The final Study is expected to be released in 2022.

On September 2, 2021, the Surface Transportation Board (Board) issued a decision stating that it was seeking comments on issues related to first-mile / last-mile (FMLM) service, which refers to the movement of railcars between a local railroad serving yard and a shipper or receiver facility.  First-Mile / Last Mile Service, EP 767, slip op. at 1 (STB served Sept. 2, 2021).  The Board noted that it is seeking information on FMLM service “[a]fter hearing concerns raised by shippers across numerous industries and requests for transparency of FMLM data.”  Id.

On September 30, 2021, the Surface Transportation Board (Board) issued a decision denying requests to reconsider the Board’s January 5, 2021 decision in Docket No. FD 36284, in which the Board preliminarily concluded, subject to completion of the environmental review, that the proposed construction and operation of approximately 85 miles of rail line in Utah meets the statutory exemption standard.  Seven Cnty. Infrastructure Coal.—Rail Constr. & Operation Exemption—in Utah, Carbon, Duchesne, & Uintah Counties, Utah,FD 36284 (STB served Sept. 30, 2021).

On October 22, 2021, the Surface Transportation Board (Board) issued a decision, denying a petition for declaratory order filed by the Louisville and Jefferson County Riverport Authority, d/b/a Louisville Riverport Authority (LRA), seeking a finding that its lessee, New Albany Main Street Properties, LLC, d/b/a the Port of Louisville (Port of Louisville), is operating as a common carrier on certain track without authority from the Board.  The Louisville and Jefferson County Riverport Authority—Petition for Declaratory Order, FD 36463 (STB served Oct. 22, 2021).  

Two potential merger proceedings involving Kansas City Southern have been pending before the Surface Transportation Board (Board) – Docket No. FD 36500, regarding a potential merger with Canadian Pacific, and Docket No. FD 36514, regarding a potential merger with Canadian National.  On October 20, 2021, the Board granted Canadian National’s request to withdraw its prefiling notification in the proposed CN/KCS merger proceeding.  Canadian Nat’l Ry. Co.—Control—Kansas City S., FD 36514 (STB served Oct. 20, 2021).  On October 29, 2021, Canadian Pacific and Kansas City Southern filed an application seeking approval for the proposed CP/KCS merger.  Canadian Pac. Ry. Ltd.—Control—Kansas City S., FD 36500 (filed Oct. 29, 2021).

In September, the U.S. Department of Justice filed a lawsuit in federal court in Massachusetts seeking to stop the planned alliance between American Airlines and JetBlue. Six state attorneys general and the District of Columbia joined the lawsuit. The complaint contends that JetBlue is a “uniquely disruptive low-cost carrier” and that proposed alliance would undermine competition on routes to and from four major airports: Boston Logan International Airport (“Boston Logan”), John F. Kennedy International Airport (“JFK”), LaGuardia Airport (“LaGuardia”), and Newark Liberty International Airport (“Newark Liberty”).¹

ATLP’s own Allison Ishihara Fultz has been appointed to be the Chief Counsel for the Federal Railroad Administration.  FRA’s Chief Counsel is the principal legal advisor to the Administrator and provides executive direction over two divisions: General Law Division and Safety Law Division.

The Occupational and Safety and Health Administration’s (“OSHA”) proposed final rule to implement a Covid vaccination mandate is entering its administrative review phase before it becomes final.  This article will focus on potential issues OSHA will face as it implements this new rule.

An OSHA Rule Is Not a General Law As Passed By Congress Or Any Legislature And, As Such, For HR Professionals And General Counsel, Does Not Directly Mesh With Existing Law Or Policies 

An OSHA rule is a workplace safety standard, enforceable by citations issued by OSHA inspectors.  This means that the regular process for imposing fines and administrative hearings within the Agency applies.  However, this process only imposes potential liability on employers who do not implement a compliance policy.

Introduction

This edition of the Commuter Rail Update delves into a recent decision issued by the Surface Transportation Board (“STB”) concerning cost allocation between Regional Transportation Authority’s Commuter Rail Division (“Metra”) and the National Railroad Passenger Corporation (“Amtrak”) for use of Amtrak’s Chicago Union Station. We also highlight New Jersey Transit’s award of a $1.6 billion contract to conduct a much-needed replacement of the Portal North Bridge connecting New Jersey to New York City.

Surface Transportation Board Issues Decision in Dispute Between Amtrak and City of Chicago Over Access to the Chicago Union Station

On August 10, the Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) published a Notice of Proposed Rulemaking (NPRM) seeking comments on proposed amendments to the Federal Hazardous Materials Regulations (HMR).  86 Fed. Reg. 43844 (August 10, 2021).  PHMSA coordinated with the Federal Aviation Administration, the Federal Motor Carrier Safety Administration, the Federal Railroad Administration, and the U.S. Coast Guard in the development of the NPRM.

PHMSA states that the proposed amendments are intended to facilitate the transportation of vaccines and other medical materials needed in response to the novel coronavirus disease 2019 (COVID-19) pandemic.  Additionally, the amendments seek to reduce greenhouse gas (GHG) emissions by reducing delays and interruptions of hazardous materials during transportation and by supporting the increased demand for transporting lithium batteries due to electrification of the automobile sector.

In a two-part opinion, the United States District Court for the Eastern District of New York dismissed a lawsuit filed by the family of a deceased Pakistani-American whose remains were not loaded onto a scheduled flight to Pakistan, leading to an unplanned burial in the United States. 

The family members alleged various state law causes of action, including loss of sepulcher, negligence, gross negligence, negligence per se, negligent infliction of emotional distress, fraud, loss of services and breach of contract, against the air carrier, Pakistan International Airlines (“PIA”), its cargo handler Swissport, and the Port Authority of New York and New Jersey.  After pre-trial discovery concluded, the parties cross-moved for summary judgment.  Defendants argued that the human remains were “cargo” for purposes of the Montreal Convention, and that the failure to load such remains onto the scheduled flight constituted a delay under Article 19 of the Convention.  As frequent readers of this blog will recall, the Montreal Convention controls a party’s remedies for injuries arising from international travel between signatory nations (which include those at issue in this case), and therefore as a treaty of the United States, preempts all state law claims.

A Florida state jury recently awarded a $1 billion verdict to the family of a victim of a trucking accident.  Dzion v. AJD Business Services Inc. et al., 2018-CA-000148 (Nassau Cty Fla. 2021).  This is the latest in a trend of “nuclear verdicts” in trucking accident cases over the last decade or more. 

ATLP’s editorial team compiled transportation items in the news that we found of interest:

1. Dr. Fauci supports mandatory coronavirus vaccines for air travel.  Read more by clicking here.
   
   
2. Kansas City Southern Railroad accepts Canadian Pacific Railway offer after the Surface Transportation Board denies the joint request by Canadian National and Kansas City Southern motion to use a voting trust.  Read more by clicking here.
   
   Read more about the Board’s decision at the ATLP’s Blog.
   
   
3. Head of Northeast Corridor Commission Executive Director says that the Biden infrastructure bill could fund significant improvements along the Northeast Corridor.  Read more by clicking here.
   
   
4. UPS will acquire delivery startup Roadie, which relies on gig-economy drivers to handle same-day, oversized, and perishable deliveries that UPS cannot otherwise handle.  Read more by clicking here.
   
   
5. U.S. Customs and Border Protection is in a frozen fish fight over the Jones Act in Alaska.  Read more by clicking here.
   
   
6. Although not directly transportation-related, ATLP Board Member Professor Robin Rotman has a new article in Ecology Law Quarterly, "Realigning the Clean Water Act: Comprehensive Treatment of Nonpoint Source Pollution," in Ecology Law Quarterly.”  Professor Rotman and her co-authors offer an extensive history and analysis of water quality regulation in the United States and propose a holistic framework for controlling nonpoint source pollution under the Clean Water Act and the Safe Drinking Water Act. Of interest to ATLP members may be the discussion of the definition of “navigable waters,” which affects the permitting requirements for many transportation infrastructure projects. Read more by clicking here.

On August 19, 2021, a panel of the Eleventh Circuit affirmed a district court dismissal of a putative class action filed by a cruise ship passenger against cruise ship operators for the alleged negligent failure to warn passengers of the danger of COVID-19, misleading advertisement, negligent infliction of emotional distress, and the intentional dismissal of emotional distress based upon the forum selection clause in the cruise contract. In Turner, on his own behalf  and on behalf of others similarly situated passengers aboard the Costa Luminosa v. Costa Crociere S.P.A., Costa Cruise Lines, Inc., 2021 WL 3673727,   __F.3d__ (11^th Cir. 2021), the Panel held that Section 2(a) of the General Conditions of Passage Ticket Contract (the “Contract”) required all passengers to file any suit arising out of the cruise in Genoa, Italy.

On July 26, 2021, the North America Freight Car Association, The National Grain and Feed Association, The Chlorine Institute, and The National Oilseed Processors Association (collectively, Petitioners) filed a petition for rulemaking requesting that the Surface Transportation Board (Board) exercise its authority under 49 U.S.C. §§ 1312 and 11122(a)(2) “to promulgate regulations governing the use by the Nation’s Class I railroads of freight railcars supplied to them by rail car owners, shippers, and other non-railroad entities (‘Private Railcars’).”  Petition for Rulemaking to Adopt Rules Governing Private Railcar Use by Railroads, EP 768 at 1 (filed July 26, 2021).

On July 30, 2021, the Surface Transportation Board (Board) issued a decision accepting for consideration the revised application seeking approval for: (1) CSX Corporation (CSXC), CSX Transportation, Inc. (CSXT), and 747 Merger Sub 2, Inc. (747 Merger Sub 2) to control the railroads controlled by Pan Am Systems, Inc. (Systems) and Pan Am Railways, Inc. (PAR); and (2) CSXT to merge certain PAR subsidiaries into CSXT (the Proposed Transaction).  CSX Corp.—Control and Merger—Pan Am Systems, Inc., FD 36472 (STB served July 30, 2021).  The Board had previously rejected as incomplete a prior version of the application.  CSX Corp.—Control and Merger—Pan Am Systems, Inc., FD 36472 (STB served May 26, 2021). 

On August 6, 2021, the Surface Transportation Board (Board) issued a decision instituting a proceeding on an application filed by the National Passenger Railroad Corporation (Amtrak) regarding Amtrak’s operation of additional passenger trains over CSX Transportation, Inc. (CSXT) and Norfolk Southern Railway Company (NSR) lines between New Orleans, LA, and Mobile, AL.  Application of the Nat’l Passenger R.R. Corp. Under 49 U.S.C. § 24308(E)—CSX Transp., Inc. & Norfolk S. Ry. Co., FD 36496 (STB served Aug. 6, 2021).  In the decision, the Board also denied CSXT and NSR’s motion to dismiss the application.

Pending before the Surface Transportation Board (Board) are two potential merger proceedings involving Kansas City Southern – Docket No. FD 36500, regarding a potential merger with Canadian Pacific, and Docket No. FD 36514, regarding a potential merger with Canadian National.  On August 2, 2021, the Board issued a decision in Docket No. FD 36500, granting in part and denying in part Canadian Pacific’s petition for declaratory relief, addressing whether Kansas City Southern has a continuing obligation to provide Canadian Pacific with information Canadian Pacific needs to prepare its application, and whether Canadian Pacific has a continuing right to access the information that Kansas City Southern has already provided.  Canadian Pac. Ry. Ltd.—Control—Kansas City S., FD 36500 (STB served Aug. 2, 2021).  On August 31, 2021, the Board issued a decision in Docket No. FD 36514, rejecting Canadian National and Kansas City Southern’s joint motion for approval of a voting trust agreement.   Canadian Nat’l Ry. Co.—Control—Kansas City S., FD 36514 (STB served Aug. 31, 2021).

On July 9, 2021, President Biden signed a major executive order titled “Promoting Competition in the American Economy.”¹ The executive order targets conduct in nearly every sector of the United States economy, including various transportation industries. The executive order noted that Congress has passed a number of laws directed at promoting competition across all sectors of the economy, including the Sherman Act and the Clayton Act, as well as industry-specific fair competition and anti-monopolization laws, including the Shipping Act of 1984² and the ICC Termination Act of 1995.³ Those industry-specific laws are in turn overseen by agencies including the Department of Transportation, the Surface Transportation Board, and the Federal Maritime Commission.