[00:00:02] Speaker 01:
Case number 16-1121, State of Delaware Petitioner versus Surface Transportation Board at L. Mr. Pilsk for the petitioner, Mr. Vance for the respondents.

[00:00:11] Speaker 01:
Good morning.

[00:00:12] Speaker 03:
Good morning, Your Honor, and may it please the Court, Eric Pilsk for the State of Delaware.

[00:00:16] Speaker 03:
In order to address the public health issue of noise from trains idling, Delaware passed SB 135 to impose a fine on trains idling at night in non-industrial areas for non-essential reasons.

[00:00:29] Speaker 03:
SB 135 specifically exempts from the statute idling for legitimate operational reasons.

[00:00:36] Speaker 03:
SB 135 carefully and precisely responds to the case law and the language of the statute of the ICCTA on preemption.

[00:00:45] Speaker 03:
It does not regulate rail transportation and fully accommodates the operational needs of railroads while protecting the residents of Delaware from unnecessary train idling noise at night.

[00:00:58] Speaker 03:
SB 135 may go right up to the line of preemption, but it does not cross over it.

[00:01:03] Speaker 01:
In contrast to SB- And that is because

[00:01:07] Speaker 03:
Because it does not directly regulate rail transportation, Your Honor.

[00:01:13] Speaker 03:
Under the first prong of the preemption analysis, whether it's categorically preempted, the test is whether it directly regulates rail transportation.

[00:01:22] Speaker 00:
Can I ask you a question?

[00:01:25] Speaker 00:
If the law just barred idling at all,

[00:01:28] Speaker 00:
would you be taking the same position?

[00:01:30] Speaker 03:
I think that would go too far, and that's the lesson that you see from the AAR case and more indirectly from other cases.

[00:01:36] Speaker 00:
What's the difference then between that law and this one with respect to the language of the preemption statute?

[00:01:40] Speaker 00:
Because it seems like both of them

[00:01:43] Speaker 00:
either they both pertain to railroad transportation or neither do.

[00:01:47] Speaker 03:
I think the critical distinction is that just because a statute pertains to or touches on rail transportation does not mean that it is categorically preempted.

[00:01:56] Speaker 03:
It may mean that it's preempted as applied if it imposes an undue burden.

[00:02:00] Speaker 03:
But the first question is whether it directly regulates rail transportation, in which case it would be

[00:02:06] Speaker 00:
Why would the one that bars idling period directly pertain and the one that you have does not?

[00:02:15] Speaker 03:
Because the purpose of the statute and the way it's drafted is to exclude from its coverage the operational reasons that a railroad would legitimately or appropriately need to idle to fulfill its transportation mission.

[00:02:28] Speaker 03:
And, you know, it's interesting, both the state, excuse me, below said that the examples that Norfolk Southern and the railroads mentioned fall within the exemptions from SB 135 and wouldn't be covered by it.

[00:02:41] Speaker 03:
Neither the board nor any of the railroads below said that the statute was written too narrowly, that is, that there were reasons to idle that were, that are excluded, that are covered by the statute.

[00:02:52] Speaker 03:
So the state has very carefully tried to say, OK, we understand railroads.

[00:02:57] Speaker 03:
You need to idle at times for legitimate reasons, and we're not trying to.

[00:03:02] Speaker 03:
regulate that in any way.

[00:03:03] Speaker 03:
However, if you're idling for reasons that are remote from or secondary to the primary reason for transportation, for some discretionary reason, then we're saying you can't idle at night in a non-industrial area.

[00:03:16] Speaker 00:
So the language of the preemption statute says the remedies provided under this part with respect to the regulation of rail transportation are exclusive and preempt.

[00:03:23] Speaker 00:
And so are you saying that if the law would bar idling, period, then it is

[00:03:30] Speaker 00:
It is with respect to regulation of rail transportation, but if it regulates idling, then it's not with respect to the regulation of rail transportation.

[00:03:39] Speaker 03:
Because the idling that the statute here regulates is not necessary or a central part of rail transportation.

[00:03:48] Speaker 03:
It's secondary and remote and falls into the kind of the as applied analysis that we see in Susquehanna, in Del Grasso, and the other cases.

[00:03:58] Speaker 03:
So it is – we've – as I said, the statute may go right up to the line, but it doesn't go over it because we're trying to address idling that is not necessary or a central part of rail transportation, but regulate idling that is secondary to.

[00:04:14] Speaker 00:
And some idling is necessary to rail transportation, you think?

[00:04:17] Speaker 03:
Yes.

[00:04:17] Speaker 03:
And the statutory exemptions are designed to address that and exclude that from coverage from the statute.

[00:04:25] Speaker 03:
And here, unlike the general idling statutes, the statute does not tell the trains when to start and stop.

[00:04:33] Speaker 03:
It doesn't say how long that they can idle, and that's the key distinction with the AAR case from the Ninth Circuit, where the statute said idling for more than 15 minutes is considered unnecessary.

[00:04:45] Speaker 03:
The state here doesn't try to second-guess or dictate to the railroad what is or isn't appropriate.

[00:04:51] Speaker 03:
We have excluded from the scope of the coverage all the reasons that a railroad would legitimately need to idle and not try to regulate those.

[00:04:59] Speaker 03:
And that's really the key distinction here.

[00:05:02] Speaker 00:
But it still seems to me that the potential problem for you is that

[00:05:06] Speaker 00:
The state is the one that's seeking to determine what's essential and non-essential, and you yourself have acknowledged that there's some things that are essential by anybody's estimation.

[00:05:16] Speaker 00:
And the argument would be that the purpose of the law is to remove that kind of line drawing from the state's purview to determine what's essential and non-essential and leave that in federal hands.

[00:05:27] Speaker 03:
Well, to some extent, that's true.

[00:05:29] Speaker 03:
I think that the key point here, and there's two, one, no one below, neither the board nor the railroads,

[00:05:36] Speaker 03:
pointed to anything in the statute that didn't address the legitimate needs for idling.

[00:05:41] Speaker 03:
That is, no one's saying it's too narrowly drawn or over-inclusive in its application that the exemption's too narrowly drawn.

[00:05:47] Speaker 03:
And secondly, and maybe more fundamentally, the board itself didn't engage in the kind of analysis that asks just that kind of question.

[00:05:54] Speaker 03:
does this statute impose too much on, by its specific terms, does it cross the line and regulate any aspect of rail transportation that would legitimately fall within the federal scope where we second-guess?

[00:06:08] Speaker 03:
They say that we're second-guessing, but they never show how and never analyze the statute and don't draw those connections as the

[00:06:17] Speaker 03:
You know, they really don't do what the First Circuit said, which is to relate the activity being regulated here, the idling train at night in non-industrial areas, to the physical transportation of persons or property.

[00:06:29] Speaker 03:
What are we doing here that actually regulates the movement of passengers and property in rail transportation?

[00:06:36] Speaker 03:
The board didn't address that.

[00:06:37] Speaker 03:
I think that's the fundamental flaw.

[00:06:39] Speaker 03:
with the board's analysis here because they simply didn't do the work.

[00:06:43] Speaker 03:
They took the approach of, well, they used the word idling.

[00:06:46] Speaker 03:
This is focused on idling.

[00:06:48] Speaker 03:
And that's almost all we have to do to conclude that it's categorically preempted without looking at the precision with which the statute was drafted, what the actual scope of the statute was, and the extent to which that has the effect of actually regulating rail transportation.

[00:07:03] Speaker 03:
Without that finding, I don't think there's a basis for the board to have made the decision or a basis for the court to sustain it.

[00:07:11] Speaker 01:
What about the evidence that you didn't challenge before the board that was submitted by the railroad in terms of how long it would take it to start up again if it couldn't idle, so that would delay its operations?

[00:07:25] Speaker 03:
Well, two aspects of that, Your Honor.

[00:07:26] Speaker 03:
First, that arose in the state's motion for extension of time to conduct discovery.

[00:07:33] Speaker 03:
In the motion, the state took the position, as we've stated here, that the specific examples that Norfolk Southern offered in support of its opposition were not covered by the statute that has fell within the exemptions.

[00:07:45] Speaker 03:
So there's really nothing to litigate over there because the statute didn't apply to them.

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Second, Norfolk Southern in its opposition specifically said,

[00:07:55] Speaker 03:
Board, you don't need to look at the impacts of the statute on our operations.

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You can decide this as a facial matter.

[00:08:02] Speaker 03:
And therefore, the state decided, well, we don't really need discovery in that case because the impacts are off the table.

[00:08:08] Speaker 03:
And now we can just argue about what the statute itself says and what the ICCTA itself says.

[00:08:16] Speaker 03:
So, and I think that goes to the key to the as applied finding as well is that there's really no evidence for the board to have made any decision about the actual burden of the statute on rail transportation because Norfolk Southern presented nothing that was covered by the statute and presented no evidence of any other burden.

[00:08:39] Speaker 03:
There simply was no basis for the board to have reached a decision on the unreasonable burden prong of the preemption analysis.

[00:08:47] Speaker 01:
Well, the board did talk about the concern about discretion left to local law.

[00:08:52] Speaker 03:
It did.

[00:08:53] Speaker 03:
It rested on discretion and also on the possibility of a patchwork.

[00:08:58] Speaker 03:
I think the court in, excuse me,

[00:09:07] Speaker 03:
And Susquehanna addressed it well when they said that, in essence, you can't take all this.

[00:09:12] Speaker 03:
There's some minimal amount of discretion that has to vest in any law enforcement officer.

[00:09:16] Speaker 03:
Here we're talking about a relatively specific and precise list of activities that fall within the exemption, which is the kind of thing that any police officer would deal with in any kind of traffic stop or almost any kind of other stop.

[00:09:28] Speaker 03:
is isn't the kind of open-ended discretion that a police officer could use to, in an almost open-ended way, stop railroad operations.

[00:09:38] Speaker 03:
That's the focus of the undue discretion prong of the analysis, and that simply isn't present here.

[00:09:44] Speaker 03:
This is really a routine matter of if there's a question, the police officer asks the engineer or the appropriate official, why are you idling?

[00:09:52] Speaker 03:
It gets an answer, can look at the statute, and make a straightforward decision.

[00:09:56] Speaker 03:
Moreover, even if the officer decides that it does fall within the statute, he issues a citation but can't stop the actual operation from continuing.

[00:10:06] Speaker 03:
So it isn't a case where rail transportation in any way would be stopped by application of the statute.

[00:10:13] Speaker 03:
It's simply a subject to a citation, at the worst, which could be litigated after the fact.

[00:10:18] Speaker 01:
So help me here just understand what's going on here.

[00:10:21] Speaker 01:
I gather the zoning requirements don't solve the problem.

[00:10:26] Speaker 01:
And does Delaware have a noise statute?

[00:10:29] Speaker 03:
I don't know, Your Honor, if Delaware has a general noise statute.

[00:10:34] Speaker 01:
How loud is Eidlin?

[00:10:37] Speaker 03:
It depends on where you are, but it is quite loud, and it disturbs people's sleep, and it disrupts their evening activities.

[00:10:43] Speaker 01:
Well, I understand that, but so do airplanes, and so do backfires of trucks.

[00:10:50] Speaker 01:
I was looking at the record to get some sense of what we're talking about.

[00:10:53] Speaker 03:
I don't have a decibel level or precise measurement for you.

[00:10:58] Speaker 03:
All I can say is that it is loud enough to disturb homes.

[00:11:02] Speaker 03:
Often the railroad tracks are very close to the homes, much closer than a runway would be, for example, or even an aircraft on approach for the most case these days.

[00:11:10] Speaker 01:
And I gather that Congress was looking toward a deregulatory scheme.

[00:11:17] Speaker 01:
so that I gather the STB has decided not to enter into this particular area.

[00:11:25] Speaker 01:
In other words, the courts have talked about the fire laws, the general laws that aren't focused, or as they put it, discriminate against railroads.

[00:11:35] Speaker 01:
So if in residential areas, no one could do anything that resulted in noise between

[00:11:43] Speaker 01:
I don't know, 10 p.m.

[00:11:44] Speaker 01:
and 8 a.m., that was five decibels or more.

[00:11:47] Speaker 01:
The railroad presumably would have to comply with that.

[00:11:51] Speaker 03:
Yes.

[00:11:52] Speaker 03:
And I think the difference is, and I guess I suppose the state could have gone that route, I don't think that that changes the basic analysis because, I mean, as you see in the other cases, the nuisance type cases, the courts and the STB are still going to ask the question, does that impose an unreasonable burden on a railroad, even if it doesn't call it out?

[00:12:14] Speaker 03:
The state here decided not to take that particular approach, but instead to be a more precise approach.

[00:12:19] Speaker 03:
which really gets you to the same point.

[00:12:20] Speaker 03:
You're still asking the same questions.

[00:12:22] Speaker 03:
Does this directly regulate rail transportation?

[00:12:25] Speaker 03:
And if not, does it nonetheless impose an undue burden on rail transportation?

[00:12:30] Speaker 01:
So I guess I'm not clear what the court should do then with the railroad's evidence.

[00:12:38] Speaker 01:
well i think uh... frankly the railroad's evidence doesn't help anyone much here because

[00:12:55] Speaker 01:
would create a problem for the railroad.

[00:12:57] Speaker 03:
Well, and I think that's just the point.

[00:12:59] Speaker 03:
When you read the entire declaration, the railroad's primary concern is that the amount of time it takes to restart the engine and do the air checks and the other safety checks.

[00:13:10] Speaker 03:
So their concern isn't so much that idling itself is necessary, but the impact and inconvenience entailed with restarting.

[00:13:17] Speaker 01:
On operations.

[00:13:18] Speaker 03:
On operations, so there's two things going on here.

[00:13:21] Speaker 03:
One, the statute does exempt things like idling for traffic or congestion.

[00:13:26] Speaker 03:
So if that amount of time is going to cause a problem, it appears it would be exempt from coverage of the statute.

[00:13:32] Speaker 03:
On the other hand, if the railroad is idling,

[00:13:35] Speaker 03:
in these residential areas at night for its convenience, to save a little bit of money, to not have to work so hard, that falls in the little bit more remote and ancillary to rail transportation where the analysis is under the as applied type of analysis instead of the categorical analysis.

[00:13:51] Speaker 03:
And I think that's really the fundamental problem here is you've got

[00:13:55] Speaker 03:
The railroad saying, excuse me, the state saying that these activities are not covered by the statute.

[00:14:00] Speaker 03:
They fall within the exemption.

[00:14:02] Speaker 03:
And the railroad saying, no, we just got to print it out of the box.

[00:14:05] Speaker 03:
It really should fall into an as applied analysis and look at the specifics in a particular case and analyze the facts carefully to ask the question, did it in application?

[00:14:15] Speaker 03:
Did it go too far?

[00:14:17] Speaker 03:
And in application, did it impose an undue burden?

[00:14:22] Speaker 01:
All right.

[00:14:24] Speaker 01:
Why don't we hear from the board?

[00:14:26] Speaker 01:
Thank you.

[00:14:27] Speaker 03:
Thank you, Your Honor.

[00:14:42] Speaker 04:
Good morning, Your Honors.

[00:14:43] Speaker 04:
May it please the Court.

[00:14:44] Speaker 04:
My name is Charles Vance, here today representing Respondent's Surface Transportation Board and the United States of America.

[00:14:51] Speaker 04:
In the administrative decision under review, the board correctly concluded that Delaware's anti-idling law, which on its face explicitly regulates where, when, and how locomotives may operate, is preempted by 49 U.S.C.

[00:15:04] Speaker 04:
Section 10501B.

[00:15:06] Speaker 04:
This express preemption provision has been described by the board and the courts as the broadest possible statement of Congress's intent to preempt state regulatory authority over railroad operations.

[00:15:17] Speaker 01:
So all of that would argue that those circuits which have found non-preemption were wrong.

[00:15:27] Speaker 01:
I mean, the railroad was tossing its guards into the man's property, tax operation.

[00:15:35] Speaker 04:
Well, those cases and those circuits specifically, I think you're referencing the Emerson case.

[00:15:41] Speaker 04:
I mean, the court in that case found that simply the disposal of railroad ties into public waterways would not fall within the statutory definition of rail transportation.

[00:15:53] Speaker 04:
And the board and the courts have acknowledged that that's absolutely true.

[00:15:59] Speaker 01:
I mean, anything that falls... That's my only point, that the board has drawn a somewhat weighty line.

[00:16:06] Speaker 01:
And Delaware is trying to argue that it's right up against the line, but it's consistent with the board's approach.

[00:16:16] Speaker 04:
Well, I would posit that it's actually not a wavy line.

[00:16:20] Speaker 04:
It's actually a fairly straight line.

[00:16:21] Speaker 04:
I think that anything outside the definition of rail transportation, such as in the Florida East Coast Railway case, the storage of raw materials on railroad property by a third party that was not a rail carrier, that's not rail transportation and can be regulated by states and localities.

[00:16:42] Speaker 04:
such as in the Del Grosso case, which involved whether activities were manufacturing or transloading, anything that would be considered manufacturing activities, even if undertaken by a railroad, that would fall outside the definition of rail transportation.

[00:16:59] Speaker 04:
So, but in contrast to those cases, this case really, I mean, it

[00:17:06] Speaker 04:
It really involves the heart of rail transportation.

[00:17:09] Speaker 01:
Well, let me ask you.

[00:17:10] Speaker 01:
If Delaware's statute had said no idling between 10 p.m.

[00:17:16] Speaker 01:
and 8 a.m., the state has conceded.

[00:17:23] Speaker 01:
That would be a problem.

[00:17:25] Speaker 04:
Correct.

[00:17:25] Speaker 01:
So it passed the statute that says, as I understand Delaware's argument, no idling between those times except

[00:17:36] Speaker 01:
or reasons that the railroad determines?

[00:17:45] Speaker 04:
I would think that would probably not be preempted because it allows the railroads the discretion to operate as they see fit.

[00:17:52] Speaker 01:
So the argument is the railroads haven't identified anything that doesn't fall within the exemptions.

[00:18:01] Speaker 01:
So therefore, there is no

[00:18:05] Speaker 04:
Well, that is certainly Delaware's argument.

[00:18:08] Speaker 04:
I mean, in the verified statement submitted by a Norfolk Southern superintendent for its Delaware operations, they did specifically include examples of instances of operational situations that would be prohibited by the Delaware statute.

[00:18:26] Speaker 00:
Go ahead.

[00:18:27] Speaker 00:
Why would you, why did you

[00:18:29] Speaker 00:
acquiesce in the proposition that a law that says that the railroad gets to pick would not be preempted, doesn't it still?

[00:18:37] Speaker 00:
It still addresses the subject of rail transportation, doesn't it?

[00:18:40] Speaker 00:
I mean, if you have a categorical preemption argument, the categorical preemption argument would be that a law that pertains to idling pertains to the regulation of rail transportation.

[00:18:49] Speaker 00:
And if it does, then it's preempted.

[00:18:53] Speaker 04:
Right, the question under categorical preemption is whether the state or local regulation has the effect of managing or governing rail transportation.

[00:19:02] Speaker 04:
So if it effectively cedes operational decisions to the railroads, that would not be managing

[00:19:08] Speaker 04:
the operations of the railroad.

[00:19:10] Speaker 04:
That would be allowing the railroad to operate as it sees fit.

[00:19:13] Speaker 04:
So that would not be managing or governing rail transportation.

[00:19:16] Speaker 00:
I still don't understand that.

[00:19:19] Speaker 00:
For one thing, even if you put aside categorical preemption, then you had an argument, if you get to the issue on as applied preemption, that says there's a patchwork problem.

[00:19:27] Speaker 00:
If one state says railroads get to do what they want to, unless all 49 other states say the exact same thing, it seems to me you would still have a patchwork problem.

[00:19:35] Speaker 00:
So I'm not sure why you would acquiesce in the proposition that that law is not preempted, unless I'm missing something, and I might be.

[00:19:41] Speaker 00:
But even as a categorical preemption, the statute speaks in terms of remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt remedies provided under federal state law.

[00:19:55] Speaker 00:
So either a law dealing with idling is with respect to regulation of rail transportation or it's not.

[00:20:04] Speaker 00:
I don't understand how it sometimes is and sometimes it's not.

[00:20:09] Speaker 04:
This is not an issue that the board has addressed, but I would think that something that allows the railroads to operate as they see fit would not constitute regulation, because it doesn't prohibit the railroads from doing anything.

[00:20:26] Speaker 04:
So if you have, for example, if you have one state allowing railroads to operate as they see fit, and all the other states do the exact same thing, in every state you don't have regulation of rail transportation.

[00:20:40] Speaker 04:
But if in one state,

[00:20:42] Speaker 04:
For example, under your hypothetical, if states were allowed, one state allowed a railroad to operate as it sees fit, and in other states railroads are prohibited from certain operations, then the problem would be in those other states.

[00:20:56] Speaker 00:
I see.

[00:20:56] Speaker 00:
So you're considering the hypothetical to be any railroad can do anything that it wants to, which effectively means there's no law.

[00:21:03] Speaker 00:
There's no law.

[00:21:04] Speaker 00:
There's no law at all, which that I understand.

[00:21:06] Speaker 00:
If there's no law, then it's hard to see how

[00:21:08] Speaker 04:
Well, it's not that there's no law, it's that the operational decisions are left to the railroads.

[00:21:13] Speaker 02:
No, there's no law.

[00:21:14] Speaker 02:
I mean, it's like saying, gee, we hope you won't lie.

[00:21:17] Speaker 02:
Right.

[00:21:18] Speaker 02:
Pass the statute.

[00:21:18] Speaker 02:
That's different.

[00:21:19] Speaker 02:
I don't understand your concession either, because there's eventual enforcement in the hypothetical, and maybe we're doing the hypothetical differently.

[00:21:28] Speaker 02:
And so the state presumably could challenge the railroad's exercise of its discretion.

[00:21:33] Speaker 02:
So there's regulation.

[00:21:35] Speaker 02:
Unless you have a state statute that says, gee, don't, I don't, please, but do what you want to do.

[00:21:42] Speaker 02:
That's different.

[00:21:43] Speaker 02:
Is that what you thought the hypothetical was?

[00:21:44] Speaker 04:
Yes, that's exactly what I thought.

[00:21:46] Speaker 04:
I'm sorry.

[00:21:46] Speaker 02:
That's a pretty silly law.

[00:21:48] Speaker 02:
You should have just said it's a silly law.

[00:21:51] Speaker 02:
Well, it is a silly law.

[00:21:52] Speaker 02:
You're absolutely correct.

[00:21:53] Speaker 02:
I'm sorry.

[00:21:53] Speaker 04:
What was the hypothetical you were trying to get at if it wasn't that situation?

[00:21:57] Speaker 04:
I apologize if I misinterpreted.

[00:21:59] Speaker 00:
Well, Judge Rogers is hypothetical.

[00:22:01] Speaker 00:
I didn't mean to steal the hypothetical.

[00:22:03] Speaker 00:
But I thought it was a law that would do something more than just say, do whatever you want at all times in any situation.

[00:22:11] Speaker 00:
There's no enforcement.

[00:22:13] Speaker 00:
Because why pass that law?

[00:22:15] Speaker 00:
That's a law that actually does nothing.

[00:22:17] Speaker 00:
Right.

[00:22:17] Speaker 00:
No, I completely agree.

[00:22:19] Speaker 01:
In other words, if the railroad comes to the state legislature and says, we need to do idling for the following 10 reasons,

[00:22:28] Speaker 01:
State passes a law that says no idling, except for the following 10 reasons.

[00:22:40] Speaker 01:
That's my hypothetical.

[00:22:42] Speaker 02:
That's hard?

[00:22:44] Speaker 02:
Well, who?

[00:22:45] Speaker 01:
Well, I'm just asking.

[00:22:46] Speaker 02:
I mean, I'm curious.

[00:22:47] Speaker 02:
I don't know what's hard about that.

[00:22:49] Speaker 01:
What argument?

[00:22:51] Speaker 04:
I doubt you would get all of the railroads across the country to agree to any single set of ten conditions.

[00:22:57] Speaker 02:
The question isn't preempted.

[00:23:01] Speaker 04:
It absolutely would be preempted, because it would be purporting to... It took you 23 seconds to say that.

[00:23:08] Speaker 02:
How could that be hard on your argument?

[00:23:10] Speaker 04:
No, it absolutely isn't.

[00:23:12] Speaker 01:
But see, that's the problem, I think, with the laws.

[00:23:14] Speaker 01:
It's written, even, whether, in Judge Edwards' view, it's really any law.

[00:23:22] Speaker 01:
That's why I was pushing it a little harder on this.

[00:23:26] Speaker 01:
So if Delaware has a noise statute, between 10 p.m.

[00:23:31] Speaker 01:
and 8 a.m., nothing that makes noise, up to five decibels.

[00:23:43] Speaker 04:
The problem with that, just with, you know, the same with any nuisance claim regarding railroad operations, is that if, when applied against a railroad, that would have the effect of managing or governing rail operations, because it would be effectively preventing, it would be effectively... Well, so would, you know, the fire laws, some of the zoning laws.

[00:24:06] Speaker 01:
It does affect, I mean, the railroads are not operating willy-nilly.

[00:24:11] Speaker 04:
No, they certainly are.

[00:24:13] Speaker 04:
The building codes and the fire codes and the electrical codes, those are generally applicable local regulations that require railroads to comply.

[00:24:23] Speaker 01:
Cost of money may affect how they operate.

[00:24:30] Speaker 04:
Well, if building fire or electrical codes actually did affect how railroads conducted their operations, then yes, they would be preempted.

[00:24:38] Speaker 00:
So I'm a little confused.

[00:24:39] Speaker 00:
In answer to all these questions, I take it your argument is on an as-applied basis rather than categorical when you have a generally applicable law.

[00:24:49] Speaker 00:
And then on an as-applied basis, there's a question about the degree of burden.

[00:24:53] Speaker 00:
Correct.

[00:24:53] Speaker 00:
Or are you saying that with the noise ordinance, that it's actually categorically preempted?

[00:24:58] Speaker 04:
Well, generally speaking, generally applicable laws will be examined under an as-applied challenge.

[00:25:07] Speaker 00:
Isn't a noise ordinance a generally applicable law, or is it?

[00:25:09] Speaker 00:
It is.

[00:25:10] Speaker 00:
It is, absolutely.

[00:25:10] Speaker 04:
But in the PACE and the Guggenberg cases, even generally applicable laws, if applied against a railroad in, say, a nuisance claim or a common law tort claim, if it would have the effect of prohibiting railroads from operating in certain ways,

[00:25:26] Speaker 04:
That would have the effect of managing or governing their rail operations and would be preempted categorically.

[00:25:31] Speaker 01:
So has anybody asked the STB to develop a noise code?

[00:25:39] Speaker 04:
No one ever has.

[00:25:40] Speaker 01:
Has the STB ever spoken on this subject?

[00:25:45] Speaker 04:
I don't believe so.

[00:25:47] Speaker 04:
I'm not entirely sure about that.

[00:25:51] Speaker 04:
Section 10.501B gives the board exclusive jurisdiction over rail transportation.

[00:25:56] Speaker 04:
But in accordance with Congress's general deregulatory effort with regards when it passed the ICC Termination Act, the board has not found that micromanaging railroad operations is appropriate.

[00:26:14] Speaker 00:
I don't understand what the difference is between a generally applicable noise law and a generally applicable building codes law or fire codes law.

[00:26:21] Speaker 00:
Why does the one beget categorical preemption in every instance and the other one begets as applied analysis in every instance?

[00:26:29] Speaker 00:
Aren't they both just generally applicable laws?

[00:26:32] Speaker 04:
They are both generally applicable laws, but I think with

[00:26:36] Speaker 04:
With the noise code, if liability was found against a railroad, they would be effectively prevented from conducting operations.

[00:26:45] Speaker 04:
Whereas if you apply a building or a fire code to railroad facilities, that would not prevent them from conducting operations.

[00:26:54] Speaker 00:
So it's the effect of the law?

[00:26:57] Speaker 00:
It's the potential effect of the law, if it's enforced, that determines whether there's categorical preemption?

[00:27:02] Speaker 04:
Correct.

[00:27:03] Speaker 04:
It's whether the regulation would have the effect of managing or governing rail transportation.

[00:27:10] Speaker 04:
And when you have direct regulation of locomotive operations, such as with the Delaware statute, that's clearly managing or governing rail operations.

[00:27:20] Speaker 04:
When you have a generally applicable law, like a noise code or something of that nature, that even though it's generally applicable, it could still have the effect of managing or governing rail operations and would be categorically granted.

[00:27:34] Speaker 01:
Not necessarily.

[00:27:34] Speaker 01:
That's the point I was trying to make with my electrical code.

[00:27:38] Speaker 01:
You know, the state code requires some very fancy hookups.

[00:27:43] Speaker 01:
It costs the railroad a lot of money.

[00:27:45] Speaker 01:
They don't think it's necessary.

[00:27:47] Speaker 01:
The state does.

[00:27:49] Speaker 01:
So the railroad has to make some adjustments to its operations in order to comply with state law.

[00:27:56] Speaker 01:
Here, a noise law, I don't know what it would say, but it could say if you're within, I don't know, 500 feet of a residentially zoned area, you can't idle between 10

[00:28:08] Speaker 01:
and eight.

[00:28:10] Speaker 01:
And so the railroad says, fine.

[00:28:12] Speaker 01:
We'll move down a couple of miles and idle there.

[00:28:15] Speaker 01:
I mean, it's not as though it's an either-or situation.

[00:28:20] Speaker 01:
And that's the way you're positing it, it seems to me.

[00:28:24] Speaker 04:
Well, the courts and the board have drawn a fairly clear line between building electoral codes, which the courts and the board do not believe would prohibit or govern rail operations.

[00:28:38] Speaker 04:
And anything that involves operational decisions of the railroads, that clearly manages or governs rail operations.

[00:28:47] Speaker 01:
The railroads want to blow their whistles all night long at an extraordinary pitch, such that it drives everybody crazy, whether it's sleep or not.

[00:29:03] Speaker 01:
State has no recourse.

[00:29:06] Speaker 01:
Well, if, if... And the STB won't do anything?

[00:29:09] Speaker 01:
So the only option is to go to Congress?

[00:29:13] Speaker 01:
I mean, states and localities always have the option to go to Congress and argue that the particular concerns that they have should... So your understanding of the STB's authorization is that it has no obligation regarding police powers, because those are still

[00:29:38] Speaker 01:
within the state's control.

[00:29:41] Speaker 01:
But when the state exercises those powers, anything touching upon operations, even if it's just a matter of inconvenience or spending some more money, is categorically preemptive.

[00:30:00] Speaker 04:
The test is whether it would have the effect of managing or governing rail operations.

[00:30:06] Speaker 04:
Yes.

[00:30:07] Speaker 04:
So anything that meets that test would be categorically preempted.

[00:30:10] Speaker 01:
Well, I gave you my electrical hypothetical.

[00:30:14] Speaker 01:
That has the effect.

[00:30:18] Speaker 01:
That's why I said I think the line is wavier than you.

[00:30:20] Speaker 01:
At least the circuits seem to think it's a little wavier than you're suggesting.

[00:30:26] Speaker 04:
And to get back to your point earlier, I mean, anything.

[00:30:30] Speaker 04:
beyond going to Congress and seeking to change the law, anything that would really fall outside the definitions of rail transportation.

[00:30:43] Speaker 04:
Any occurrences that would, like in the Smith case, anything that was done for the sole purpose of harassment, so idling or horn blowing or anything of that nature that were done for the sole purpose of harassment would fall outside the definition of rail transportation and would be the subject of a proper nuisance complaint.

[00:31:06] Speaker 04:
potentially, even though the board has never addressed that.

[00:31:08] Speaker 04:
I see that I'm over my time.

[00:31:10] Speaker 04:
Unless there are any other questions.

[00:31:12] Speaker 01:
Thank you.

[00:31:13] Speaker 04:
Thank you.

[00:31:14] Speaker 04:
The board and the United States request that the petition for review be denied.

[00:31:17] Speaker 04:
Thank you very much.

[00:31:23] Speaker 03:
Thank you, Your Honor.

[00:31:25] Speaker 03:
Two points.

[00:31:26] Speaker 03:
One, the line between categorical preemption and non-categorical preemption isn't as either bold or as far over as counsel suggests.

[00:31:39] Speaker 03:
And I think that the First Circuit in Del Grasso made it clear that the analysis requires the board to relate the activity being regulated to, quote, the physical movement of passengers or property as opposed to cost efficiency.

[00:31:53] Speaker 02:
And that's exactly what we have here.

[00:31:55] Speaker 02:
Then it's fairly easy.

[00:31:56] Speaker 02:
I mean, you have a very direct regulation.

[00:31:58] Speaker 02:
It's about as direct as you can get.

[00:32:01] Speaker 02:
It has to do with the operation movement.

[00:32:03] Speaker 02:
It's not whimsical.

[00:32:04] Speaker 02:
It's not like blowing a whistle on light to be mean spirits.

[00:32:08] Speaker 02:
This is about how the train runs.

[00:32:12] Speaker 02:
Stops, runs, stops, runs.

[00:32:13] Speaker 02:
It isn't really, quite frankly, the effects test seems to me to reach unnecessarily.

[00:32:18] Speaker 02:
We don't have to worry about whether it has an effect.

[00:32:21] Speaker 02:
It is direct.

[00:32:22] Speaker 03:
Well, two things, Your Honor.

[00:32:23] Speaker 03:
First, of course, we're not telling them when to start and stop.

[00:32:26] Speaker 03:
It's only whether the engine is idling or not.

[00:32:29] Speaker 02:
No, I understand.

[00:32:30] Speaker 00:
I'm using it.

[00:32:31] Speaker 00:
I'm sorry.

[00:32:32] Speaker 00:
Go ahead.

[00:32:32] Speaker 00:
Well, if that were true, we started off by asking whether a law that just bars idling, period, would be categorically preempted.

[00:32:39] Speaker 00:
You said yes.

[00:32:39] Speaker 00:
But your answer to Judge Edwards was that we're not talking about starting or stopping.

[00:32:43] Speaker 00:
We're talking about idling.

[00:32:44] Speaker 00:
But if that were true, then the law that vans idling altogether would be OK.

[00:32:48] Speaker 00:
So that can't be an answer.

[00:32:48] Speaker 03:
Fair enough.

[00:32:49] Speaker 03:
Fair enough, and I'm trying to move down the line.

[00:32:51] Speaker 03:
So first of all, we're not talking about the direct regulation of the actual movement.

[00:32:55] Speaker 03:
Secondly, the way the statute is drafted, as we've discussed, is to exclude the legitimate reasons, the operational reasons that a railroad would need to idle, and only tries to focus on the times when a railroad is idling for cost efficiency or its own convenience reasons that are not necessary

[00:33:12] Speaker 03:
for rail transportation, but really for the railroad's own convenience.

[00:33:16] Speaker 03:
And that's the key aspect of the regulation of the state statute that the board didn't address, that the railroads didn't address.

[00:33:24] Speaker 03:
Instead, the board simply relied on the notion because there are sometimes

[00:33:28] Speaker 03:
when idling is necessary, any regulation that prevents any idling is preempted.

[00:33:35] Speaker 03:
And that's too broad and not a specific analysis as required by the ICCTA.

[00:33:43] Speaker 03:
And for that reason, and for the similar reason that the board did not address the actual impacts of the statute on the railroad with any supported findings,

[00:33:53] Speaker 03:
that the decision simply lacks support, isn't supported as a reasoned decision under the APA and should be vacated.

[00:34:00] Speaker 01:
Thank you.

[00:34:01] Speaker 01:
We'll take the case under advisement.