# Amicus Curiae Brief — Easterwood v. CSX Transportation (No. 91-1206)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991

## Text

Nos. 91-790 and 91-1206 j

~_ . » -
—~ a |

IN THE
Supreme Court of the United Srates
OCTOBER TERM, 1992

CSX TRANSPORTATION, INC.,
Petitioner,
v.
LIZZIE BEATRICE EASTERWOOD,
Respondent.

LIZZIE BEATRICE EASTERWOOD.,
Cross-Petitioner,

V.

CSX TRANSPORTATION, INC.,
Cross-Respondent.

On Writs of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit

BRIEF AMICUS CURIAE OF
NATIONAL RAILROAD PASSENGER CORPORATION
IN SUPPORT OF PETITIONER/CROSS-RESPONDENT
CSX TRANSPORTATION, INC.

Stephen C. Rogers Paul F. Mickey, Jr.*

Charles E. Mandolia Alvin Dunn

National Railroad Passenger Shaw, Pittman, Potts &
Corporation Trowbridge

60 Massachusetts Avenue. N.E. 2300 N Street, N.W.

Washington, D.C. 20002 Washington, D.C. 20037

(202) 906-3995 (202) 663-8000

Counsel for Amicus

August 27, 1992 *Counsel of Record

Balmar Legal Publishing Services, Washington, D.C... (202) 682-9800

TABLE OF CONTENTS

Page
TABLE OF CONTENTS ................. i
TABLE OF AUTHORITIES ................ il
INTEREST OF AMICUS CURIAE ............ l
STATUTORY AND REGULATORY
DE 6-6. Gb ue ned eketaeeaeesien 7
Statutory Framework .......0000cc2208 7
The Secretary’s Railroad Safety Regulations .... . 8
SUMMARY OF ARGUMENT .............. 12
QE 4 EKER KES £848 13
I. FEDERAL LAW PREEMPTS
MRS. EASTERWOOD’S SPEED CLAIM .... 13
A. The Secretary of Transportation Has
Promulgated Regulations That Cover
the Subject Matter of Train Speeds
Through Grade Crossings ........... 15
B. The State Common Law Rule
Mrs. Easterwood Seeks to Enforce
Does Not Fit Within the Savings
Provision of Section434 ........... 17
1. The Rule Mrs. Easterwood
Seeks to Enforce Does Not
Address a “Local Safety
Hazard” Within the
Meaning of Section 434........... 18
2. The Rule Mrs. Easterwood
Seeks to Enforce Would
Be Incompatible with the
Secretary's Speed Regulations ...... 20

CORRES ch hee ee se ee hasnenet 23

TABLE OF AUTHORITIES
Cases Page
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202
er a Gls é bh pp hp 8 ee 8 8 8 13

Central of Georgia Railroad Co. v. Markert,
410 S.E.2d 437 (Ga. App.), cert. denied, 200
a a 21

Chicago & North Western Transportation
Co. v. Kalo Brick & Tile Co., 450

Ts ais SS yo ste ee ee 8 15
Cipollone v. Liggett Group, Inc., 112 §. Ct. 2608

ees sa bs os 6 6 6 8 8 13, 14, 15
Consolidated Rail Corp. v. Smith, 664 F. Supp.

CE EE ea ee 3

Easterwood v. CSX Transportation, Inc., 933 F.2d
1548 (11th Cir. 1991), cert. granted, 112 S. Ct.
EEE ee ee passim

Florida East Coast Railway Co. v. Griffin,
566 So. 2d 1321 (Fla. Dist. Ct.

DP Uhh «ee ses ebb eeccseseces 21
Florida Lime & Avocado Growers, Inc. v. Paul, 373

EE EN ee 16
FMC Corp. v. Holliday, 111 S. Ct. 403 (1990) ...... 13
Hillsborough County v. Automated Medical :

Laboratories, Inc., 471 U.S. 707 (1985) ....... 13
Hines v. Davidowitz, 312 U.S.52 (1941) ......... 13

~ Illinois v. City of Milwaukee, 406 U.S.91 (1972) ..... 14

Ingersoll-Rand Co. v. McClendon, 111 S. Ct.

EE Ce sg sg 5 o's oe ee ec 13
International Paper Co. v. Ouellette, 479 U.S.

Ee Ss pies ops eee ceee 15

eee

Johnson v. Southern Railway Co., 654 F. Supp. 121

EE weccccaesneseeeer

Jones v. Rath Packing Co., 430 U.S. 519

Cc es ae 6 ok 6 as ee 088 6 ows

Lara v. National Railroad Passenger Corp., No.
CIV. H. 85-697, 1986 WL 15725 (N.D. Ind.

I arate ae en
Morales v. TWA, 112 S. Ct. 2031 (1992) ......

Napier v. Atlantic Coast Line Railroad Co., 272

EE 3 esos 6 A bids 6.0 66 06 ¢

National Railroad Passenger Corp. v. City of
Everett, No. C89-834R (W.D. Wash. Oct. 4,

a ee ee

National Railroad Passenger Corp. v. Town of
Broussard, Civ. No. 91-0012 (W.D. La.

| Tank aed pa aegis

National Railroad Passenger Corp. v. Township of
Pennsauken, Civ. No. 89-1552 (D.N.J.

ST +5666 6b ¥.46.0-% © 0 ¢.0 0.8

Norfolk & Western Railway Co. v. American Train
Dispatchers Ass'n, 111 §. Ct. 1156

A een ee ee

TLS i 6 @ 6s. w-6 ee 6 ©6040 00 ¢%

San Diego Building Trades Council v. Garmon, 359

EE 66 bib < 6660.0 6.600 0%

Sisk v. National Railroad Passenger Corp., 647 F.

Supp. 861 (D. Kan. 1986)... .......2..

Southern Pacific Transportation Co. v. St. Charles
Parish Police Jury, 569 F. Supp. 1174 (E.D.
en oe enc ae Oo 6 6 4 G88

iv
Page

Southern Pacific Transportation Co. v. Town of

Baldwin, 685 F. Supp. 601 (W.D.

TN IS eS ays eee ee 3
Constitutions
Fg ge > re ae ee 17
Statutes

Department of Transportation and Related Agencies
Appropriations Act, 1992, Pub. L. No.
102-143, 105 Stat. 917 (1991) 2... 0... .22... 2

Federal Railroad Safety and Hazardous Materials
Transportation Control Act, 45 U.S.C.

$§ 421-445 (1988) .................. 7
MUSE OURO .. 2... cc cee 7
45 U.S.C. §431(1988) ................ 7
45 U.S.C. § 433(a) (1988) .......020...., 7
45 U.S.C. § 433(b) (1988) ........... 7, 8,19
MUSC. GCOS ............. passim
Rail Passenger Service Act, 45 U.S.C.
ee
45 U.S.C. § 50la(6) (1988) .............. 2
45 U.S.C. § S0la(8) (1988)... 2.2.0 2
45 U.S.C. § SOl(a) (1988) .............. 2
45 U.S.C. § 541 (1988) ..........0..... 2
45 U.S.C. § 543(a(1(A) (1988) 2... 2
45 U.S.C. § 548 (1988) ................ 5
45 U.S.C. § 561 (1988) .. 2.22.20, 2

45 U.S.C. § 562(e)(1) (1988) .. 2... 2. 2. 2

Page

ee eee 2

PTT CTE ee 2, 16
Regulations and Administrative Notices
ee ee eee eee 20
23 C.F.R. § 646.214(b)(1) (1992) 2... 2.2.0 0222..., 10
23 C.F.R. § 646.214(b)(3)(i) (1992) 2.22. 2. 10
ree RS eee eee 10
23 C.F.R. § 655.603(a) (1992) ............4.. 10
oe | x
Co Rs passim
SOCPR. SSID (IGP) ww wee ce 10, 17, 22
oN ee 20
ol Ne )
Nouce of Proposed Rule Making, 36 Fed. Reg.

IE id ohule Oe aimee cae 6:6. < 9, 12,21
Notice of Proposed Rule Making and Public

Hearing, 37 Fed. Reg. 18,397 (1972) ......... y
Legislative History
H.R. Rep. No. 1194, 91st Cong., 2d Sess. (1970),

reprinted in 1970 U.S.C.C_A.N. 4104 ...... 15, 18
Statement of Rep. Springer, 116 Cong. Rec.

EE ee ee 18
Other Authorities
American Ass'n of State Highway and Transp.

Officials, A Policy on Geometric Design of

Highways and Streets (1990) ............. 20

vi
Page
Federal Highway Admin., U.S. Dep't of Transp..,
Manual on Uniform Traffic Control Devices
for Streets and Highways, adopted as law

at 23 C.F.R. §§ 646.214(b)(1), 655.601 and
PO Ee ay ee passim

Federal Highway Admin., U.S. Dep't of Transp.,
Rail-Highway Crossings Study (1989) .... passim

Federal Highway Admin., U.S. Dep’t of Transp.,
Railroad-Highway Grade Crossing Handbook
SEE cc cpechundwesantacssicrvss wo

Federal R.R. Admin., U.S. Dep't of Transp., Rail-
. Highway Crossing Accident/Incident and In-
ventory BulletinNo.13 (July 1991) ......... 5

Highway Research Bd., Nat'l Coop. Highway Re-
search Program Rep. No. 50, Factors Influenc-
ing Safety at Highway-Rail Grade Crossings
DE 6 6046600804006 648 OS O48 0-8 8 6 20

Interstate Commerce Comm'n, U.S. Dep’t of Com-
merce, Rep. No. 33440, Prevention of Rail-
Highway Grade-Crossing Accidents Involving
Railway Trains and Motor Vehicles, 322 1.C.C.

, SxPrrricey ere ee eee eT eee ee 3,4
National R.R. Passenger Corp., /99/ Annual Report
Sy eee re ee eo Ce eee 5

Nos. 91-790 and 91-1206

IN THE
Supreme Court of the United States
OCTOBER TERM, 1992

CSX TRANSPORTATION, INC.,
Petitioner,

Vv.

LIZZIE BEATRICE EASTER WOOD,
Respondent.

LIZZIE BEATRICE EASTERWOOD,
Cross-Petitioner,

Vv.

CSX TRANSPORTATION, INC.,
Cross-Respondent.

On Writs of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit

BRIEF AMICUS CURIAE OF
NATIONAL RAILROAD PASSENGER CORPORATION
IN SUPPORT OF PETITIONER/CROSS-RESPONDENT
CSX TRANSPORTATION, INC.

INTEREST OF AMICUS CURIAE
The National Railroad Passenger Corporation (“Amtrak”’)
is a government-funded corporation created by Congress in
1970 to assume responsibility for operating the country’s inter-
city passenger trains.! Congress has directed Amtrak “to pro-

' In 1970 Congress enacted the Rail Passenger Service Act, Pub. L. No.
91-518, 84 Stat. 1327 (codified at 45 U.S.C. §§ 501-658 (1988)) ((RPSA”),
authonzing the creation of Amtrak as a for-profit corporation responsible

a)
~

vide intercity and commuter rail passenger service, employing
innovative operating and marketing concepts so as to fully
develop the potential of modern rail service in meeting the
Nation's intercity and commuter passenger transportation re-
quirements.” 45 U.S.C. § 541 (1988).

Speed is critical to Amtrak's success. In order to meet its
congressional mandate, Amtrak must be able to provide reliable
high-speed service that will attract a significant ridership. 45
S.C. § SOl(a). Congress has specifically instructed Amtrak
to strive to achieve a system-wide average speed of at least
() m.p.h., 45 U.S.C. § SO 1a(%), and to operate its trains to all
station stops within fifteen minutes of the time established in
public timetables for such operation. 45 U.S.C. § SOla(6).
Recognizing the importance of speed in Amtrak's effort to
attract passengers, Congress included several provisions in the
RPSA encouraging Amtrak to travel at the highest possible
speeds that are consistent with safe and efficient operations.”

45 1.S.C.® 541 (198%). Amtrak inherited routes, personnel. and equipment
from the passenger services of many of the nation’s freight railroads.
including Petitioner CSX Transportation, Inc. (°CSXT"). 45 U.S.C. § S61.
Although Amtrak is not an agency or establishment of the United States
Government, 45 U.S.C. § 541, its annual operating deficits are federally
funded. Department of Transportation and Related Agencies Appropria-
tions Act, 1992, Pub. L. No. 102-143, 105 Stat. 917 (1991), and by statute
the Secretary of Transportation sits as an ex officio member of Amtrak 's
Board of Directors. 45 U.S.C. § 54Map 1A).

‘Two provisions address Amtrak's rights to use track owned by freight
railroads. Because freight trains operate at slower speeds than Amtrak ‘s
trains, Amtrak has priority over freight trains in the use of any given section
of wack. 45 U.S.C. § 562(e)(1). Where freight railroads refuse to permit
Amtrak to operate at higher speeds over their track, Amtrak may petition
the Secretary for an order permitting higher speeds. 45 U.S.C. § S62(f). A
third provision concems state or local speed restrictions that involve local
safety hazards and that impede Amtrak's ability to provide high-speed rail
passenger service. It directs Amtrak to identify these speed restricuions and
to attempt to persuade state and local officials to dea) with the local safety
hazards through other means. 45 U.S.C. § 656.

an

Amtrak has frequently instituted legal action to eliminate
State and local speed restrictions that impede its ability to
provide high-speed rail passenger service and has consistently
persuaded courts to declare them invalid, most often on the
basis of federal preemption. ° Amtrak has challenged speed
restrictions not merely in order to meet its statutory speed and
service goals, but also because, for at least three reasons, slower
speeds are not necessarily safer speeds.

(1) Unlike a car or truck, a train has a limited ability
to reduce its speed in response to a safety hazard.
Even at a speed of 30 m.p.h., by the time a passenger
train engineer discerns an obstacle on the track ahead.
it is generally too late to stop.

(2) Slower speeds may actually increase the risk that
motorists will cause grade crossing accidents. When

National RR Passenger Corp v Town of Broussard, Civ. No
91-0012 (W.D. La. July 2, 1991); National RR Passenger Corp »
Township of Pennsauken, Civ. No. 89-1552 (D.NJ. Oct. 30, 1989). Nation
al RR Passenger Corp vy. City of Everett, No. C89-834R (WD. Wash
Oct. 4, 1989), Consolidated Rail Corp v. Smith, 664 F. Supp. 122% (N_D.
Ind. 1987): Southern Pac Transp Co v Town of Baldwin, 685 F. Supp.
A401 (WD. La. 1987); Southern Pac Transp Co v St Charles Parish Police
Jury, 59 F. Supp. 1174 (E.D. La. 1983). Amtrak has also successfully
challenged speed restrictions sought to be imposed under state common law.
Sisk v National RR Passenger Corp , 6A7 F. Supp. 861 (D. Kan. 1986):
Lara v National RR Passenger Corp, No. CIV. H. 85-697, 1986 WL
15725 (N.D. Ind. May 27, 19%4).

See, eg. Imerstate Commerce Comm'n, U.S. Dep't of Commerce.
Rep. No. 33440, Prevention of Rail-Highway Grade-Crossing Accidents
Involving Railway Trains and Motor Vehicles, 322 LCC. 1, 77 (1964)
(ICC Rep”) (Due to its extreme weight [approximately 1,000 tons), “a
passenger train consisting of eight cars and three diesel units traveling
hetween 45 and 50 miles per hour would require approximately 2,000 feet
within which to stop under emergency application of the train brakes.” ):
Federal Highway Admin., U.S. Dep't of Transp., Railroad-Highway Grade
Crossing Handbook 44 (24 ed. 1986) (“DOT Grade Crossing Handbook” }
(A typical 100-car freight train traveling 6) m.p.h. would require over one
mile to stop inemergency braking.) In addition, sudden deceleration poses
its Own serous safety nsks. See Federal Highway Admin., U.S. Dep't of

4

trains travel at higher speeds, drivers are more likely
to obey the warning devices at grade crossings.
When trains travel more slowly, drivers are more
likely to ignore warning devices and attempt to drive
through the crossing in front of the train in order to
avoid a lengthy delay.

(3) In some circumstances, particularly involving
curved track, reducing train speeds to 25 m.p.h. or
less may increase the chance of derailment.

In large part because it has succeeded in increasing the
speed of its trains, Amtrak is nearing achievement of its statu-

Transp., Rail-Highway Crossings Study, 5-10 (1989) (“DOT C rossings
Study”) (*A train in an emergency braking situation is subject to derailing,
as well as to injury to passengers, and damage to lading, wheels, and brake
systems.”).

See, e.g.. DOT Grade Crossing Handbook at 41:

[S}ome communities have passed ordinances restnctng train
speed for the purpose of improving safety. However, this
practice directly reduces the level of service for highway
traffic and may also affect safety. Because of the longer period
of time during which the crossing is closed to highway traffic,
a motorist may take risks by passing over the crossing just
ahead of a train. In many cases, risks such as these are not
successful and collisions result.

In addition, numerous studies have concluded that motorists, not railroads.
are largely responsible for grade crossing accidents. See, e.g../CC Rep. at
82 (“Now ites the highway, not the railroad, and the motor vehicle, not the
train which creates the [grade crossing] hazard . .. .”); DOT Crossings Study
at 4-20 (“More than half of all rail-highway crossing accidents are the result
of a motorist driving around lowered gates or proceeding through flashing
red lights without stopping.”).

® St. Charles Parish, 569 F. Supp. at 1177 (Crediting expert testimony.
court found that “due to harmonic roll and track/train dynamics, the effect
of reducing train speed to 25 mph or less actually increases the likelihood
of railroad car derailments.”). This problem affects heavy freight trains
most directly.

5

tory speed goal and has been able to enhance the appeal of its
service to the traveling public.’ Amtrak presently provides
intercity rail passenger service in 45 states and serves over
22,000,000 passengers per year.®

Amtrak submits this brief amicus curiae because it has a
Vital interest in the preemptive scope of federal railroad safety
regulations, particularly those concerning train speed. State or
local requirements that forced Amtrak to lower its operating
speeds would cripple Amtrak’s ability to meet Congress's
specific speed goal and Congress’s broader objective that
Amuwak provide efficient rail passenger service at the lowest
possible cost to the federal taxpayer. A requirement that
Amtrak reduce its speed when approaching a grade crossing
would be particularly disruptive. Amtrak trains travel
through 14,485 grade crossings nationwide.? Slowing down
at these crossings would dramatically increase both travel
times and operating expenses, and would do little or nothing
to increase safety.'°

7 Amtrak's System-wide average speed is approximately 55 m.p.h., and

in 1991 its on-time percentage was 77 percent.

* These statistics are set forth in annual reports Amtrak is directed to
submit to the President and the Congress under 45 U.S.C. § 548. See
National R.R. Passenger Corp., /99/ Annual Report (1992). Amtrak also
provides commuter rail passenger service in six states under contracts with
local ansportation authorities, serving over 18,000,000 passengers per
year. /d. :

* See Federal R.R. Admin., U.S. Dep't of Transp., Rail-Highway
Crossing AccidenttIncident and Inventory Bulletin No. 13 (July 1991).

' Amtrak has estimated that reducing its operating speeds at grade
crossings to 30 m.p.h. would lengthen a typical route’s schedule by 36
percent and reduce Amtrak's average speed over that route to 37 m.p.h.
Increases in operating expenses would ultimately be borne by the federal
taxpayer. See supra note 1. As noted above, this serious degradation of
rail passenger service would do little to enhance safety — in all likelihood
a train traveling at 30 m.p.h. still would not be able to stop in time to avoid
a collision with a vehicle that entered the grade crossing — and safety could
well be diminished.

6

Amtrak also has a vital interest in the preemption of state
laws concerning grade crossing safety. Amtrak has been in the
vanguard of efforts to promote safety at grade crossings nation-
wide and has committed substantial resources to Operation
Lifesaver, a national program to educate motorists and
pedestrians about the hazards of grade crossings. As an
operator of passenger service in 45 states, Amtrak has a strong
interest in maintaining a uniform national approach to grade
crossing safety, and in finding solutions that do not needlessly
reduce maximum speeds for passenger trains. !!

This brief deals solely with the preemptive effect of federal
regulations governing train speeds and supports affirmance of
the Court of Appeals in No. 91-1206. Amtrak agrees with the
views of CSXT and amicus curiae Association of American
Railroads (“AAR”) that Respondent Lizzie Beatrice
Easterwood’s grade crossing claim is also preempted, and thus
Amtrak supports reversal of the Court of Appeals in No.
91-720.

'l Even though Amtrak is not responsible for maintaining the vast
majority of the grade crossings it uses, it bears the ultumate financial burden
for any grade crossing accidents involving its trains. Amtrak owns most of
the track over which it operates in the Northeast Corridor (Boston to
Washington, D.C.) and has eliminated nearly all of the grade crossings on
this line. Outside the Northeast Corridor, Amtrak operates over the lines of
private freight railroads, including CSXT, pursuant to agreements entered
into with these railroads when Amtrak commenced operations in 1971.
Under these agreements, Amtrak is required to pay virtually all of the costs
of grade crossing accidents involving its trains, though it has no control over
the protective devices at these grade crossings.

—

STATUTORY AND REGULATORY BACKGROUND

Statutory Framework

| In the late 1960s, Congress became alarmed at the increas-
ing rate and severity of railroad accidents across the nation. In
1970, Congress passed the Federal Railroad Safety and Haz-
ardous Materials Transportation Control Act, Pub. L. No. 91-
458, 84 Stat. 971 (codified as amended at 45 U.S.C. §§ 421-445
( 1988)) (“FRSA”), with the express purpose of substantially
improving railroad safety: “[T]he purpose of [the Act] is to
promote safety in all areas of railroad operations and to reduce
railroad-related accidents, and to reduce deaths and injuries to
persons and to reduce damage to property caused by accidents
involving any carrier of hazardous materials.” 45 U.S.C. § 421.
Congress determined that improving railroad safety required a
comprehensive national approach coordinated by the federal
government. Congress thus directed the Secretary of Transpor-
tation to “(1) prescribe, as necessary, appropriate rules, regula-
tions, orders, and standards for all areas of railroad safety . . ,
and (2) conduct, as necessary, research, development, testing,
evaluation, and training for all areas of railroad Safety.” 45
U.S.C. § 431.

. Congress believed that the grade crossing problem re-
quired particular attention. It directed the Secretary to study
“the problem of eliminating and protecting railroad grade cross-
ings,” 45 U.S.C. § 433(a), and to “undertake a coordinated
effort toward the objective of developing and implementing
solutions to the grade crossing problem... .” 45 U.S.C.
§ 433(b). The Secretary was directed to exercise not only the
authority provided by the FRSA, but also his authority over
highway, traffic, and motor vehicle safety and highway con-
struction. /d.

Congress also determined that the Secretary’s regulations
should have broad preemptive effect. Congress therefore in-

8

cluded in the FRSA an express statement of the Act’s preemp-
tive scope:

The Congress declares that laws, rules, regulations,
orders, and standards relating to railroad safety shall
be nationally uniform to the extent practicable. A
State may adopt or continue in force any law, rule,
regulation, order, or standard relating to railroad
safety until such time as the Secretary has adopted a
rule, regulation, order, or standard covering the sub-
ject matter of such State requirement. A State may
adopt or continue in force an additional or more
Stringent law, rule, regulation, order, or standard
relating to railroad safety when necessary to
eliminate or reduce an essentially local safety hazard,
and when not incompatible with any Federal law,
rule, regulation, order, or standard, and when not
creating an undue burden on interstate commerce.

45 U.S.C. § 434.

The Secretary’s Railroad Safety Regulations

The Secretary has adopted rules that cover virtually every
aspect of railroad operation, address many facets of highway
and street safety, and fill nearly two volumes of the Code of
Federal Regulations.'2 This case concerns only two issues
covered by the Secretary’s regulations — train speed and grade
crossings. As noted above, Amtrak submits this brief solely on
the issue of train speed.

The Secretary’s train speed regulations establish maxi-
mum allowable operating speeds for six separate classes of
track. Passenger trains are subject to one set of speeds (15 to

‘2 The Secretary has delegated to the Federal Railroad Administrator
his authority to carry out his functions under the FRSA, with the exception
of his functions under the Act’s grade crossing provision, 45 U.S.C.
§ 433(b), which concerns highway, traffic, and motor vehicle safety and
highway construction. 49 C.F.R. § 1.49(m) (1991).

9

110 m.p.h.) and freight trains are subject to another (10 to 110
m.p.h.). 49 C.F.R. § 213.9 (1991).” In general, passenger
train speeds are significantly higher than those for freight trains;
for example, on a straight section of Class 4 track, Amtrak is
authorized to operate at 80 m.p.h., while freight trains are
limited to 60 m.p.h. The Secretary has also established a
formula for calculating maximum allowable speeds for both
freight and passenger trains on curved track. 49 CFR.
§ 213.57."

The Secretary considered a broad range of safety data
when setting maximum allowable operating speeds.!5 That he

'° The maximum allowable operating speeds in miles per hour are as

follows:
Over trackthat Themaximum The maximum
meets allofthe allowable allowable
prescribed in speed for freight speed for passenger

this part for— trains is— trains is—
Class 1 track 10 15
Class 2 track 25 30
Class 3 track 40 60
Class 4 track 60 80
Class 5 track 80 90
Class 6 track 110 110

49 CFR. § 213.9.

'* The Secretary originally published speed limits that would apply to
all trains, passenger and freight. Notice of Proposed Rule Making, 36 Fed.
Reg. 11,974, 11,975 (1971). Amtrak petitioned the Secretary to establish
higher speed limits for passenger trains operating over classes 1 through 5
trains can move faster than freight trains over classes 1 through 5 track with
no loss in safety.” Notice of Proposed Rule Making and Public Hearing, 37
Fed. Reg. 18,397, 18,397 (1972).

'S See 36 Fed. Reg. at 11,974. (“[The Secretary] considered informa-
tion available within [the Department] and information as to ‘existing safety
data and standards’ made available to it by representatives of the Association
State regulatory agencies.”).

10

was concerned with numerous safety risks, including grade
crossing accidents as well as derailments, is confirmed by
subsection (c) of 49 C.F.R. § 213.9. That subsection provides
that when the Secretary addresses a railroad’s request for a
maximum operating speed that exceeds 110 m.p.h., he will
consider “performance characteristics of the track, signaling,
grade crossing protection, trespasser control where ap-
propriate,” and other factors in determining whether “the
proposed speed can be sustained in safety.” 49 C.F.R.
§ 213.9(c). In setting maximum speeds, the Secretary was well
aware of prior Department of Transportation and Interstate
Commerce Commission studies suggesting that in many cases
lower speeds could increase the likelihood of grade crossing
accidents and possibly the risk of derailments as well. See
supra note 5.

The Secretary also took into account those accepted prin-
ciples of railroad safety and train dynamics in establishing
comprehensive regulations covering grade crossing safety.
Under the grade crossing regulations, train speed is an impor-
tant consideration in determining what types of warning
devices should be installed at a grade crossing. Federal High-
way Admin., U.S. Dep’t of Transp., Manucl on Uniform Traffic

Control Devices for Streets and Highways 8A-1, adopted as -

law at 23 C.F.R. §§ 646.214(b)(1), 655.601 and .603(a) (1992)
(“MUTCD”’).'© Significantly, the Secretary did not adopt an
approach whereby trains would be required to proceed more
slowly at grade crossings; instead, because that approach was
both impracticable and unlikely to promote safety, the
Secretary chose to allow trains to travel through grade crossings

” Speed is specifically addressed in the Secretary's grade crossing
regulations. For example. the Secretary has concluded that train speed must
be considered when determining whether to install automatic gates with
flashing lights. 23 C.F.R. § 646.214(6)(3)i). See also MUTCD at 8&C-S
(speed considered in setting automatic flashing lights); MUTCD at &B-5
(speed considered in determing appropnate illuminanon).

at speeds deemed safe in light of track characteristics and
configuration, and opted to minimize grade crossing accidents
by prescribing the use of various devices to warn motorists.’
Speed, in other words, was treated as the baseline parameter to
which decisions on other precautions would be accommodated.

The Secretary's determination to take train speed as a
baseline is confirmed by the way his regulations address the
hazard created when different trains traverse a grade crossing
at significantly different speeds. Signals warning motorists of
approaching trains must be timed according to train speed, and
proper timing is critical: too short a warning has obvious
dangers, while too long a warning may encourage motorists to
drive around gates or through signals.'* One way to have
signals timed correctly for all trains would be to require all
trains to travel at the lowest common denominator of authorized
speed. The Secretary adopted quite a different approach: the
regulations allow trains to operate through a grade crossing at
significantly different speeds, and call for the installation of
more sophisticated sensing devices so that faster trains will be
detected and warnings will be given to motorists at the appropri-
ate time. !9 . ;

In adopting regulations on maximum allowable train
speeds, including maximum speeds through grade crossings,
the Secretary made judgments that expressly involved cost-

dd 49 CFR. § 213.9: see also supra note 16.

See DOT Crossings Study at 4-6 (“Care must also be taken to ensure
that the warning ume is not excessive. If the roadway user cannot see the
train approaching . he may attempt to cross the tracks despite the operation
of the flashing light signals — and even lowered gates. if present.”). See

See MUTCD at 8C-5 (“Where the speeds of different trains on a
given track vary considerably under normal operation . Special devices or
curcuits should be installed to provide reasonably uniform nonce in advance
of all rain movements over the crossing.”).

12

benefit calculations. The Secretary recognized specifically that
his speed limit regulations have both costs and benefits:

[E]very safety regulation has a cost factor, either a
direct purchase and operation cost or an indirect cost
resulting from operating at less than maximum ef-
ficiency. Every safety regulation also has a benefit
factor — the increase in safety to the public and
railroad personnel and a benefit to the railroads in
reducing its casualty losses and damage claims. Al-
though the cost of complying with a regulation may
be initially borne by the railroad, it is ulumately paid
by the public. Thus, the cost/benefit determination
to be made by the FRA with respect to a particular
safety requirement is whether the safety benefit to the
public and railroad personnel justifies the ultimate
monetary cost of compliance to the public.
36 Fed. Reg. at 11,974. Recognizing that the public has an
interest in both safety and efficiency, and that train speed is an
important component of efficiency, the Secretary adopted
speed limits that would permit the fastest rate of travel consis-
tent with safe operation. He presumably also recognized that
in setting speeds at the maximum safe level, he was promoting
Congress's statutory goal of allowing intercity passenger trains
to provide enhancec service to the traveling public.

SUMMARY OF ARGUMENT

This case considers whether federal law preempts Mrs.
Easterwood's claim that the CSXT train, though moving well
below the federal maximum track speed, was nevertheless
violating state common law by traveling at an excessive speed
through the Cook Street grade crossing. Amtrak respectfully
submits that her claim is preempted by the FRSA and rules
promulgated by the Secretary of Transportation relating to
railroad safety. Congress has expressly declared in the FRSA
that railroad safety rules should be nationally uniform and that
safety rules promulgated by the Secretary of Transportation

13

shall preempt any state rules covering the same subject matter.
The Secretary has established comprehensive rules for train
speeds, including speeds through grade crossings, and under
the plain language of 45 U.S.C. § 434 those rules preempt
Mrs. Easterwood’s state common law claim.

ARGUMENT

I. FEDERAL LAW PREEMPTS
MRS. EASTERWOOD’S SPEED CLAIM

The Court's preemption principles are well settled.
Whether a federal enactment preempts state law turns on con-
gressional intent, the “‘ultimate touchstone’” of preemption
analysis. Ingersoll-Rand Co. v. McClendon, 111 S. Ct. 478.
482 (1990) (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S.
202, 208 (1985)). To determine congressional intent, the Court
must “begin with the language employed by Congress and the
assumption that the ordinary meaning of that language ac-
curately expresses the legislative purpose.” Morales v. TWA.
112 S. Ct. 2031, 2036 (1992) (quoting FMC Corp. v. Holliday,
111 S. Ct. 403, 407 (1990)).2°

= Congress can indicate its intent to preempt state law in two ways:
(1) expressly. by so stating on the face of the statute. or (2) impliedly, by
enacung rules or regulatons that comprehensively govern an entire field.
such that there is no room for additional regulation by the states. Hillsbor-
ough County v. Automated Medical Labs., Inc., 471 U.S. 707, 713 (1985)
(cating Rice v. Santa Fe Elevator Corp.. 331 U.S. 218, 230 (1947)). Even
if Congress fails to express its intent to displace state law, state law is
preempted to the extent it actually conflicts with federal law. This conflict
often arses when state law “stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.” Hines v.
Davidowitz, 312 U.S. 52.67 (1941). The Coun in Cipollone noted that when
Congress has included m the statute a provision exphcitly addressing
Preempuon. as Congress did in § 434. there 1s no need to look beyond that
Provision to determine the statute's preempuve scope. Cipollone v Ligget:
Group, Inc.. 112 S. Ct. 2608, 2618 (1992).

14

Here Congress's intent is clear. The FRSA expressly
states that the Secretary of Transportation should promulgate
comprehensive rules covering railroad safety and that all rules
“relating to railroad safety” should, if practicable, be nationally
uniform. 45 U.S.C. § 434.2! The FRSA also expressly provides
that once the Secretary adopts a rule covering a particular
subject matter, all state rules covering that subject matter are
preempted. The FRSA provides an exception to its general
declaration of preemption, but a narrow one: a state rule may
survive only if it addresses “an essentially local safety hazard,”
is not incompatible with federal law, and does not unduly
burden interstate commerce. 45 U.S.C. § 434.

There can be no doubt that the FRSA preempts state
common law — such as the common law duty Mrs. Easterwood
seeks to enforce in this action — as well as state statutory law.
Section 434 preempts any state “law, rule, regulation, order, or
standard relating to railroad safety.” The Court has consistently
held that the phrase “state law,” when given its ordinary mean-
ing, includes cormmon law as well as statutes and regulations.
Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608, 2620 (1992)
(The phrase “requirement or prohibition . . . imposed under
State law” includes “obligations that take the form of conimon
law rules.”); Norfolk & W. Ry. Co. v. American Train Dis-
patchers Ass n, 111 S. Ct. 1156, 1163 (1991) (The phrase “all
other law, including State and municipal law” encompasses
state common law.); Illinois v. City of Milwaukee, 406 U.S. 91,
100 (1972) (The term “laws,” when given its “natural mean-
ing,” includes “claims founded upon . . . common law as well
as those of statutory origin.”).

In this case the plain meaning of the FRSA’s preemption
language — “law, rule, regulation, order, or standard” —

= The Court last term interpreted a similar preemption provision and
held that the ordinary meaning of “relating to” is a broad one and that “the
words thus express a broad pre-emptive purpose.” Morales, 112 S. Ct. at
2037.

15

encompasses state common law. The legislative history of the
FRSA strongly suggests that Congress intended to preempt
common law claims as well as those based on legislation or
regulation.*? Congress recognized, as this Court has often
stated, that the effect of allowing state common law claims to
survive would be to regulate train speeds through jury verdicts
and damage awards. Most recently in Cipollone, the Court
reaffirmed the commonsense point that damage actions can
have the same effect as affirmative regulation: ““The obliga-
tion to pay compensation can be, indeed is designed to be, a
potent method of governing conduct and controlling policy.”
Cipollone, 112 S. Ct. at 2620 (quoting San Diego Bldg. Trades
Council v. Garmon, 359 U.S. 236, 247 (1959)). See also
International Paper Co. v. Ouellette, 479 U.S. 481, 495 (1987).

A. The Secretary of Transportation Has Promul-
gated Regulations That Cover the Subject Mat-
ter of Train Speeds Through Grade Crossings

In accordance with Congress's directive in the FRSA, the

Secretary has adopted comprehensive railroad safety rules. In
particular, he has adopted rules covering train speed. These
rules set “maximum allowable operating speeds” for railroad
travel over nearly all of the nation’s track, including the track
at issue in this case and all of the track Amtrak uses. 49 C_F.R.

§ 213.9. Once the Secretary adopts regulations on the subject

*2 See H.R. Rep. No. 1194, 91st Cong., 2d Sess. (1970), reprinted in
1970 U.S.C.C_A.N. 4104, 4110-11 (“To subject a carrier to enforcement
before a number of different State administrative and judicial systems in
several areas of operation could well result in an undue burden on interstate
commerce.”). See also id. at 4109 (“[S)ubjecting the national rail system
to. . 50 different yudicial and administrative systems” would adversely
affect rail safety.). The language of the House Repont is strikingly similar
to that used by this Court in Chicago & North Western Transportation Co
» Kalo Brick & Tile Co..450U.S. 311, 326 (1981): “A system under which
cach State could. through its courts. umpose on railroad carriers its own
version of reasonable service requirements could hardly be more at odds
with the uniformity contemplated by Congress...”

nee

16

of speed — as he now has — no state may continue in force
any speed rule unless it can fit that rule within section 434’s
savings Clause for local safety hazards.*?

Mrs. Easterwood claims that state law imposes a duty on
CSXT to reduce its speed below the federally authorized speed
limit when traveling through a crossing that has the charac-
teristics of the Cook Street crossing. Her claim involves a state
law concerning a subject matter covered by the Secretary's
regulations — train speed — and thus is preempted unless it
fits within section 434’s savings provision.

Mrs. Easterwood attempts to escape the preemptive effect
of the Secretary's speed regulations by arguing that the
Secretary set train speed limits only to prevent derailments, not
to prevent grade crossing accidents. Her point has no ground-
ing in law or in fact. As the Eleventh Circuit noted, this Court
has made clear that preemption analysis is not concerned with
whether the federal law’s purposes are similar to the state law's
purposes. Easterwood v. CSX Transp., Inc., 933 F.2d 1548,
1554 (11th Cir. 1991), cert. granted, 112 S. Ct. 3024 (1992)
(citing Florida Lime & Avocado Growers, Inc. v. Paul, 373
U.S. 132, 142 (1963)). See also Napier v. Atlantic Coast Line
RR. Co., 272 U.S. 605, 612-13 (1926) (State law is preempted
whenever “federal and state statutes are directed to the same
subject... [,] however commendable or however different their
purpose.”). Preemption analysis turns on Congress’s intent to
preempt and the nature of the federal regulations at issue.
Easterwood, 933 F.2d at 1554.

*° In 1980, Congress directed Amtrak to identify and attempt to
eliminate state and local speed restrictions. 45 U.S.C. § 656. Congress
to a speed restriction, it should take into account “the particular local safety
hazard which is the basis for such restriction... .” 45 U.S.C. § 656
(emphasis added). This language plainly was drafted to parallel the terms
of the savings provision: once the Secretary adopted speed regulations. as
he had well before 1980. state and local speed restrictions could survive
under § 434 only if they were directed to “local safety hazards.”

17

Moreover, the Secretary in fact took into account many
considerations — including grade crossing safety — in promul- .
gating his speed regulations. As explained in greater detail
above, there is substantial interplay between the Secretary's
speed and grade crossing regulations. Significantly, speed is
the constant factor, with grade crossing protections tailored to
speeds, instead of speeds reduced to minimize dangers at grade
crossings. See supra pp. 10-11. The Secretary has expressly
stated that in setting higher train speeds, he must be satisfied
“that the proposed speed can be sustained in safety” and that
his safety concerns are not limited to derailment risk but include
grade crossing protection and trespasser control. 49 C.F.R.
§ 213.9%(c). Accordingly, because the Secretary has spoken on
the issue of train speeds through grade crossings, Mrs. Easter-
wood can prevail only if she can fit her claim within section
434’s savings provision.

B. The State Common Law Rule Mrs. Easterwood

Seeks to Enforce Does Not Fit Within the
Savings Provision of Section 434

In order to fall within the savings provision, a state law
must meet each of three separate requirements: (1) it must be
“necessary to eliminate or reduce an essentially local safety
hazard”; (2) it must not be incompatibie with any federal law
or regulation; and (3) it must not create an undue burden on
interstate commerce. On this record, it is plain that the rule of
law Mrs. Easterwood seeks to enforce fails to meet at least the
first two requirements, and probably does not satisfy the third.24

*4 ‘The undue burden issue was not developed in the district court. and
the caselaw does not offer any guidance as to the meaning of “undue burden”
in § 434. Courts examuning challenges to local speed ordinances brought
under the United States Constitution's Commerce Clause, U.S. Const. art. |.
§ 8. cl. 3, rather than § 434 have consistently held that these ordinances
unduly burden interstate commerce. See Johnson v. Southern Ry. Co., 654

18

1. The Rule Mrs. Easterwood Seeks
to Enforce Does Not Address a
“Local Safety Hazard” Within
the Meaning of Section 434
The state common law rule Mrs. Easterwood invokes does
not address “an essentially local safety hazard.” As the House
Report makes clear, Congress intended “‘local safety hazard” to
be narrowly construed:
The purpose of this . . . provision is to enable the
States to respond to local situations not capable of
being adequately encompassed within uniform na-
tional standards. The States will retain authority to
regulate individual local problems where necessary
to eliminate or reduce essentially local railroad safety
hazards. Since these local hazards would not be
Statewide in character, there is no intent to permit a
State to establish Statewide standards superimposed
on national standards covering the same subject
matter.

H.R. Rep. No. 1194, 1970 U.S.C.C.A.N. at 4117 (emphasis
added).*5

The rule of law Mrs. Easterwood seeks to enforce here —
a general duty of reasonable care — is not focused on a
particular, identifiable local safety hazard. Rather, it is a broad
rule of statewide applicability — precisely the sort of “Statewide

F. Supp. 121, 123 (W.D.N.C. 1987); Southern Pac. Transp. Co. v. St.
Charles Parish Police Jury, 569 F. Supp. 1174, 1179 (E.D. La. 1983).

Because it is apparent that restrictions at the grade crossings Amtrak
traverses would substantially hinder its ability to provide fast, reliable
passenger service, and because the evidence indicates that slow train speeds
do not lead to greater safety (and in many cases diminish safety), see supra
pp. 3-4, the rule of law Mrs. Easterwood asserts would appear to constitute
an undue burden under both § 434 and the Commerce Clause.

*5 Additional legislative history supports a narrow interpretation of
“local safety hazard.” See 116 Cong. Rec. 27,612 (1970) (statement of Rep.
Springer that the savings clause was intended to allow a state to “take charge
of purely local hazards *).

19

standard[] superimposed on national standards covering the
same subject matter” that Congress intended to forbid. The
Eleventh Circuit clearly was correct when it held that the
“savings Clause is irrelevant to the case at hand because a state
does not legislate a general duty of care in order to eliminate a
local safety hazard.” Easterwood, 933 F.2d at 1553 n.3.

Moreover, Mrs. Easterwood’s common law claim addres-
ses a hazard — speeds through grade crossings — that is
“capable of being adequately encompassed within uniform
national standards.” Congress so determined when it declared
that grade crossing safety should be dealt with on a national
level and specifically directed the Secretary to “undertake a
coordinated effort toward the objective of developing and
implementing solutions to the grade crossing problem... .” 45
U.S.C. § 433(b).

In addition, all of the individual elements underlying Mrs.
Easterwood’s speed claim are capable of being adequately
encompassed within uniform national standards, and most in
fact are covered by existing standards.26 Most of the elements
— the curve in the tracks, the vegetation, and the hump —
chiefly concern a motorist’s ability to see an approaching train.
Under the Secretary’s regulations the motorist’s line of sight at
a crossing is an express and significant consideration in deter-
mining what grade crossing protection is appropriate for safe
operation in light of specified train speeds.27 Sight distance

= According to Mrs. Easterwood’s certiorari petition, trains have a

common law duty to slow down at the Cook Street crossing due to “the
numerous hazards at [the] crossing and the large number of motorists who
traverse the crossing ....” The hazards include “a curve in the tracks just
north of Cook Street which allows only 150 feet of sight distance for a
motorist looking up the track . . . [,] the amount of vegetation allowed to
grow along the side of the track, frequently malfunctioning signals which
produce false warnings, and a hump in the crossing which make the tracks
difficult for drivers of large trucks to maneuver.” Easterwood Cert. Pet. at
4.

>

See, e.g., MUTCD at 8B-9 (Whether to use Stop signs at grade
crossings depends, in part, on motorists’ line of sight to an approaching train

20

analysis takes into account not only curves in the track but also
vegetation that hinders visibility and the level of the track
relative to that of the road.?® Accordingly, it is clear that even
the individual elements of Mrs. Easterwood’s speed clair are
capable of being dealt with through uniform national standards.
and thus her claim does not fit within the narrow definition of
“local safety hazard” Congress intended for the Savings
provision.”
2. The Rule Mrs. Easterwood Seeks to
Enforce Would Be Incompatible with
the Secretary’s Speed Regulations
Mrs. Easterwood’s speed claim also fails to meet the

Savings provision’s second requirement: the rule of law she
posits 1s incompatible with the Secretary’s speed regulations.
Mrs. Easterwood’s claim is that CSXT violated its state com-
mon law duty to slow down to a speed that is “reasonable and

and sight distance down the track while at the stop bar.); MUTCD at 8B-5
(Whether to illuminate grade crossing depends, in part, on motorists’ ability
to see trains during hours of darkness.). See also Highway Research Bd.,
Nat'l Coop. Highway Research Program. Rep. No. 50, Factors Influencing
Safety at Highway-Rail Grade Crossings 25 (1968) ( importance of sight
distance in the design and improvement of grade crossings); DOT Crossings
Study at 5-9, 5-10 (same).

°°

See, ex. MUTCD at 8B-5 (Illumination at a crossing may be
required “where the gradient of the vehicular approaches is such that the
headlights of an oncoming vehicle shine under or over the [train] cars.”).
Vegetation at or near the tracks has also been addressed separately by the
Secretary in regulations concerning track maintenance. 49 C_.F.R. § 213.37
(track Owners must contain vegetation so that it does not pose a fire hazard,
obstruct visibility, or create other safety hazards). With regard to Mrs.
Easterwood’s claim conceming the hump in the crossing, standards con-
cerning vertical alignment of the railroad tracks in relation to the roadway
are set forth in American Ass'n of State Highway and Transp. Officials, A
Policy on Geometric Design of Highways and Streets 842-51 ( 1990)
(“AASHTO Policy”). In establishing standards to govern federal aid high-
way projects, the Secretary has adopted the AASHTO Policy as law. 23
CF.R. pt. 625.

°9 With respect to the final “hazard” of Mrs. Easterwood’s speed clairn
— frequenudy malfunctioning signals — the legal analysis is clear. As both

2]

prudent under the circumstances.” The circumstances for
which CSXT allegedly failed to slow down involve no extraor-
dinary conditions that existed on the morning of February 24,
1988; they are present every day at the Cook Street crossing
and, most likely, at hundreds of other crossings in Georgia and
throughout the United States. *° Therefore, the thrust of her state
law Claim is to force trains routinely to pass through the Cook
Street crossing at a speed that is lower than the speed limit set
by the Secretary.

That rule of law plainly is incompatible with the Secre-
tary s regulations. In setting maximum operating speeds the
Secretary expressly engaged in cost-benefit analysis. 36 Fed.
Reg. at 11,974. One of his goals was to authorize the highest
possible speeds consistent with Congress's safety goals. He
thus set speeds as high as he deemed safe in order to authorize

CSXT and AAR note in their briefs, the Savings provision leaves room for
State common law claims alleging violations of federal Safety standards.
including those the Secretary has issued concerning signals. However, Mrs
Easterwood's approach — a legal rule that would effectively require trains
(0 operate at slower speeds — is incompatible with the Secretary's approach
to speeds at grade crossings: moreover, it is undul y burdensome. effectively
requiring all carriers using a line to become familiar with the status of the
home railroad’s maintenance efforts.

*0 A few cases have addressed claims brought under state law that a
railroad failed to reduce its speed when faced with a sudden ané extraordi-
nary dangerous condition or event. Central of Ga.RR. Co. v. Markert, 410
S.E.2d 437, 439 (Ga App. 1991) (claim that railroad employees failed to
take precautions after it was apparent that vehicle was about to cross the
track not preempted), cer’. denied, 200 Ga. App. 895 (1991): Florida E
Coast Ry. v. Griffin, 566 So. 2d 1321, 1324 (Fla. Dist. Ct App. 1990) (claim
that railroad employees failed to issue a Stop order when it became apparent
that children were about to cross the track not preempted). These cases stand
for the proposition that federal !aw will not absolve a railroad of its duty to
act with reasonable care when faced with an extraordinary circumstance or
event such as persons. animals, vehicles, or other obstacles sudden! y appear -
ing in plain view on the roadbed. Because Mrs. Easterwood has not raised
such a claim, the Court need not reach this issue.

a

—

>

trains to operate at those speeds. The Secretary was explicit
that he was establishing speeds that could be safely sustained,
not maximum speeds that were to be reduced routinely based
on recurring operational considerations. See, e.g= 49 C.F.R.
§ 213.9(c). Setting a lower maximum speed is inconsistent
with the purposes of the Secretary’s rules.

Incompatibility is all the more apparent in light of the
Secretary's decision to authorize prescribed speeds through
grade crossings. As Amtrak noted above in response to
Mrs. Easterwood’s arguments that the Secretary’s speed
regulations deal only with the risk of derailment, the Secretary
in fact squarely faced the problem of grade crossings and opted
to build other precautions around prescribed speed limits rather
than to vary speed based on the hazardous characteristics of
each crossing.>! He has adopted speed limits that can be sus-
tained in crossings, with the safety of those crossings assured
through careful review of potential hazards, such as limited
visibility, and the subsequent installation of appropriate warn-
ing devices. A common law rule prescribing lower speeds in
crossings would conflict directly with the Secretary’s chosen
approach.>*

‘1 Asnoted above, one of the precautions that is built around prescribed

speed limits is properly timed warning signals. This element of the
Secretary's regulations highlights a risk of imposing acommon law duty on
railroads to slow down based on varying perceptions of hazards at specific
grade crossings: as tains slow down to promote safety, they may be
traveling at speeds that render the timing of signal circuits inappropriate and
even dangerous. See supra p. 11.

32

Because of this fundamental incompatibility, even in the absence of
§ 434, Mrs. Easterwood’s common law rule wou!d be preempted on the
theory of conflict preemption. Jones v. Rath Packing Co., 430 U.S. 519,
525-26 (1977).

|

23

CONCLUSION

This case presents a clear instance of express federal
preemption. The Secretary’s regulations deal squarely with the
issue of train speeds through grade crossings, and thus there is
no room for Mrs. Easterwood’s claim under section 434. Ac-
cordingly, Amtrak supports affirmance of the Court of Appeals
in No. 91-1206, as well as reversal in No. 91-790.

Respectfully submitted,

Stephen C. Rogers Paul F. Mickey, Jr.*

Charles E. Mandolia Alvin Dunn
National Railroad Passenger Shaw, Pittman, Potts &
Corporation Trowbridge

60 Massachusetts Avenue, N.E. 2300 N Street, N.W.
Washington, D.C. 20002 Washington, D.C. 20037
(202) 906-3995 (202) 663-8000

Counsel for Amicus

August 27, 1992 *Counsel of Record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0239%3A12. Public record. Not legal advice.