East Palestine anniversary calls for careful attention, not rushed legislation

One year ago today, there was a terrible rail accident in East Palestine, Ohio that shocked the nation. Thousands of gallons of hazardous materials were dumped into the environment, with an EPA-directed controlled burn-off resulting.

Amazingly, there were no injuries from the accident itself to humans. So far, at least, there have been no deaths. The National Transportation Safety Board continues its careful investigation and we await its conclusions. But unfortunately, the lack of critical information about what caused the accident has not stopped certain interests from pushing for reforms before we even find out.

Ohio’s U.S. Senators, Sherrod Brown (D) and J.D. Vance (R), moved quickly to propose a bill called the Railway Safety Act, which would require, among other things, two-person crews on all trains and certain trackside detectors.

But this bill would jump the gun on the results of the NTSB investigation. It embodies the wrong approach to rail regulation.

One of the first things NTSB investigators concluded after the accident was that the three-person crew (two regular staff and a trainee) did nothing wrong. So a two-person crew mandate obviously would have done nothing to prevent this accident. A new government crew mandate would only serve as an irrelevant payoff to railroad labor unions, which have been lobbying for this change for years. Unfortunately for the unions, the bulk of research on the effects of crew sizes on safety finds that one-person crews are quite adequate.

On the question of trackside detectors, railroads are installing them of their own accord (with some already present on the railway in question). They will probably improve upon communication from detectors to better, safer technologies as they develop. Accidents of this scale are not conducive to railroads’ business success, to put it mildly, so the companies already have incentives to avoid a repeat. By some accounts, the East Palestine accident has already cost the railroad over a billion dollars.

A prescriptive mandate like the one the Ohio lawmakers have in mind, on the other hand, risks a problem known as technology lock-in, where the technology that was prescribed now becomes the only acceptable technology ever later, when better solutions emerge. Instead of trying to prevent the last accident, a better way to approach the problem would be to set safety targets and allow railroads to develop the best ways to meet them. If one of the targets is something like, “no wheel bearing can be more than X degrees over temperature every so many miles,” for example, safety regulations should allow railroads to look for the most efficient way of keeping that temperature down.

As a coalition of state and national groups said in a letter to Congress last year, the bill “includes far too many prescriptive policies, unduly favors organized labor, and would unduly empower unelected bureaucrats.”

Moreover, in a departure from the generally accepted way that regulation has been conducted for the last half-century or so, the bill excuses regulators from having to conduct a cost-benefit analysis of rules they make under the law. So the regulations do not have to justify the costs they impose on the railroads, which will be reflected in the price shippers have to pay, and therefore the price we all pay for the goods made from the shipped materials. It is simple, good practice for regulators to recognize the costs they are imposing and to ensure that we all see net benefits as a result of the rule.

All of this suggests that we should wait to see what the NTSB says in its final report on the accident. We should not be pushed by an anniversary to prejudge their conclusions with legislation.

At the same time, railroads should already be taking proactive steps to improve their operations. Recall that the infamous Exxon Valdez disaster of 1989 was a one-off catastrophe involving mistakes made by one company, yet it damaged the reputation of all oil shippers. Even if other railroads think what happened at East Palestine couldn’t happen to them, they should be reviewing their engineering and operations for potential vulnerabilities. Safety matters to all of us. It should matter to our elected representatives that we get that right.

Iain Murray is a senior fellow with the Competitive Enterprise Institute, a free market public policy organization based in Washington, D.C.