Senators Introduce Bipartisan Bill to Make Railroads Safer After East Palestine Train Derailment

Don’t miss it—Congress might actually be doing something to hold railroads accountable and make workers and the broader public safer.

On Wednesday, a group of bipartisan senators (Sherrod Brown, J.D. Vance, Bob Casey, Marco Rubio, John Fetterman, and Josh Hawley) introduced the “Railway Safety Act of 2023” to address some of the concerns about rail safety that resurfaced after the disastrous Norfolk Southern train derailment in East Palestine, Ohio.

The bill calls for stronger safety standards for all trains carrying hazardous materials and also expands those standards to trains not currently subject to high-hazard flammable train, or HHFT, regulations (like the train in East Palestine).

It also mandates a freight train be operated by at least two-person crews, which rail workers have been demanding for some time, and increases penalties for companies that violate any rail safety standards.

Enforcement for many of the bill’s provisions will be key, however, says Railroad Workers United Co-Chair Ross Grooters. “It appears to be a step in the right direction, but we need to pay attention to the details,” Grooters told TNR. “Often railroads are reactionary. They tend to do the minimum and create unintended consequences within the law. Ensuring we have strong enforcement and no loopholes is key.”

The Senate legislation, similar to a House bill introduced Tuesday, directs rail carriers to proactively communicate with local, state, and tribal emergency response commissions when hazardous materials are being transported.

The bill also calls on the transportation secretary to carry out numerous provisions and enact further regulation. So, to Grooters’s point, the execution will still depend on agency will.

Under the legislation, the transportation secretary is responsible for creating new safety standard procedures on an array of items, including how big trains can be and how fast they can go, how frequently trains should be inspected, and to direct audits of the inspection programs themselves.

The bill also directs the transportation secretary to issue new regulations on the equipment used to monitor trains carrying hazardous materials. This measure comes as the National Transportation Safety Board deemed that an overheated wheel bearing was part of what led to the Norfolk Southern train derailing in East Palestine. The bill mandates that trains carrying hazardous materials be scanned by hotbox detectors every 10 miles and that the detectors be equipped to alert rail operators effectively.

The legislation further calls to collect funds from rail operators in order to carry out additional emergency response training. And the bill appropriates $22 million for research and development into detectors and $5 million for developing safer tank cars.

There are some differences between the Senate bill and the separate rail safety bill introduced in the House, including on what gets classified as a high-hazard flammable train.

Of note is that the bill also did not include any specific guidance or directive surrounding the revival of the Obama-era rule to mandate updated braking systems at least for trains carrying hazardous materials.

Nevertheless, it is unmistakably a great step forward for Congress to be pushing the slate of measures, particularly in a bipartisan manner. The words are now officially on paper, and anyone looking to oppose or water down the bill should be put on notice—especially since there’s still much more to be done.

Julie Su is on track to become the first Asian American person to serve as a Cabinet secretary under the current administration.

President Joe Biden announced Tuesday that he was nominating Su, currently the deputy labor secretary, to head the entire Department of Labor.

“Julie knows in her bones … that people who get up every morning and go to work and bust their necks just to make an honest living deserve something, someone to fight at their side to give them an even shot,” Biden said in an official announcement ceremony Wednesday. “Julie has spent her life fighting for that vision.”

He also highlighted Su’s upbringing as the daughter of Chinese immigrants in Wisconsin. “Julie is the American dream,” Biden said.

Su, 54, first made a name for herself almost three decades ago as a young lawyer in California. When she was just 26, she led a legal team representing a group of more than 70 enslaved Thai garment workers in El Monte, near Los Angeles. The workers were undocumented and forced to live and work in an apartment complex that functioned as a sweatshop in order to “earn” their freedom. Many had been trapped there for seven years before the operation was discovered in a police raid.

Su and her team sued the workers’ captors, as well as the manufacturers and retailers of the clothes produced in the sweatshop. The case, which was one of the worst instances of labor exploitation and human rights violation in the United States, helped spur a change in California’s legislation to increase worker protections.

Since then, Su has served as the head of California’s Division of Labor Standards Enforcement and as the state’s labor secretary. In February 2021, Biden nominated her as deputy secretary for the Labor Department. She was seen as a younger, more progressive voice, and her nomination was welcomed by the Congressional Asian Pacific American Caucus, which has called on Biden from the start to nominate more Asian Americans and Pacific Islanders to his Cabinet.

Su’s nomination for deputy passed the Senate 50–47 along party lines. Although Democrats control the Senate, Su may be up for a bit of a fight. Many party members, such as Nancy Pelosi, have backed former New York Representative Sean Patrick Maloney—the man who cost his party several key seats during the 2022 midterms—for labor secretary.

Su could also be unpopular for her role in helping avert a national rail strike in December, which culminated with Biden signing a bill that imposed a contract with no paid sick leave on 115,000 rail workers, the majority of whom had opposed the contract.

Progressive Senators Bernie Sanders and Elizabeth Warren have hailed Su’s nomination, with Warren calling her “terrific.” Sanders, who is chair of the Health, Education, Labor and Pensions Committee, said he thought Su was an “excellent” choice and looked forward to working with her to “protect workers’ rights and build the trade union movement.”

The House of Representatives passed a bill Tuesday blocking the Labor Department from implementing a rule that encourages retirement plans to consider environmental, social, and corporate governance, in Republicans’ latest manufactured culture war.

Representatives voted 216–204 for the measure, mostly along party lines. Only one Democrat, Maine Representative Jared Golden, voted for the measure, which now goes to the Senate. President Joe Biden has said he will veto the bill if it makes it to his desk.

Environmental, social, and corporate governance, or ESG, is a framework that helps investors understand how an organization—in this case, retirement savings plan managers—manages risks and opportunities regarding sustainability. Issues of sustainability include environmental protection, impact on society, and aligning corporate leadership goals with stakeholder ones.

The Labor Department rule makes it easier for retirement plan managers to consider ESG factors such as climate change when making investments or voting on behalf of shareholders. It does not actually require the plans to include these considerations, making it clear Tuesday’s vote was just another Republican attempt to fearmonger over something that’s really not bad.

Republicans have slammed the rule as another facet of “woke capitalism.” The GOP has declared war on “wokeness,” meaning anything that has to do with social equity or change. Last week, Vivek Ramaswamy, a prominent critic of ESG investing, announced he is running for president in 2024. Florida Governor Ron Desantis, another likely Republican presidential candidate, also proposed banning ESG investment in the state earlier this month.

Senate Minority Leader Mitch McConnell said the House bill would make sure retirement plan managers only consider financial returns on investments, instead of “extraneous factors” such as climate change and employment policies.

“Democrats want to let money managers make these unrelated ideological goals a higher priority than getting their clients—ordinary American workers—the best returns for their own retirements,” he said on the Senate floor Tuesday. “I’ll be proud to support this commonsense measure later this week.”

The bill now goes to the Senate for a vote, where all Republicans and Democratic Senator Joe Manchin support it. The measure needs only a simple majority to pass, and with Senator John Fetterman out getting treated for depression, it is likely to get through.

House Democrats, meanwhile, have introduced a competing bill called the Freedom to Invest in a Sustainable Future Act. The bill would codify retirement plan managers’ right to consider ESG factors when making decisions. It is unlikely to get the support it needs to pass the Republican-controlled House.

Republicans have spent weeks criticizing the response to the East Palestine, Ohio, train derailment, lobbing attacks at any target close enough for something to stick. Seldom have they directly confronted the clear-as-day culprit: corporate-bought deregulation. The charade has now hit another milestone, as Republicans line up behind a party-wide push to deregulate water protection in the United States.

On Tuesday, the Republican-led House Transportation and Infrastructure Committee voted to reverse a Biden administration rule on water protection—which could affect communities contaminated by disasters like the one in East Palestine.

In 2015, the Obama administration announced a rule that expanded the definition of what kinds of bodies of water can be covered under the Clean Water Act, the now 50-year-old law tasked with overseeing water pollution and protecting the integrity of the country’s waterways.

In 2020, the Trump administration rolled back Obama’s changes, letting polluters off the hook and leaving regulators with less jurisdiction over protecting waterways. The approach limited federal protection to cover only “permanent” bodies of water and not other smaller but still impactful waterways, like streams of water that flow only part of the year. As a result, Trump’s rule deferred to states to determine what would and wouldn’t be protected by the Clean Water Act. In a case like Ohio, where the local government has been slow to respond to the contamination of water, such limits could make communities worse off.

In January, the Biden administration issued a rule overturning former President Trump’s limited scope of water protection, instead moving toward Obama’s more inclusive framework. Biden’s rule would allow waterways or wetlands that display a significant connection to more established waterways to be regulated. Biden’s water rule also aims to set a “durable” standard that more concretely defines when a waterway in question “significantly affects the chemical, physical, and biological integrity” of other already-established protected waters.

In East Palestine, the train derailment implicated numerous scales of waterways—some that interlink with adjacent smaller streams and wetlands. Contaminated local stream Sulfur Run flows into nearby stream Leslie Run, which flows into the nearby Bull Creek, which flows into the North Fork Little Beaver Creek, which flows into Little Beaver Creek, which empties, finally, into the Ohio River.

Still, scores of Republicans—lawmakers in Congress, state attorneys general, and Republican-appointed Supreme Court justices—are threatening to make it harder for the federal government to protect waterways.

On February 2, just one day before the East Palestine derailment that polluted numerous community waterways, all 49 Senate Republicans and 152 House Republicans signed on to a challenge against Biden’s rule, clamoring to deregulate water protection. And on February 16, 24 Republican attorneys general—including Ohio’s—announced a lawsuit against the EPA, complaining about federal overreach as the world witnessed Ohio bungling the protection of its own community’s waters and stubbornly refusing to accept federal help.

While Republicans push for the resolution over the coming weeks, they just need to win a simple majority vote. Biden will have the ability to veto the bill, and likely would not face a two-thirds overruling from Congress blocking his veto power. Republicans just aim to dare him to veto it, if they can pass it at all.

Meanwhile, Sackett v. EPA, a concurrent Supreme Court case, deals with the question of assessing waterways’ significance; the case was heard in October 2022 and the opinion is now pending. So the case of water protection is subject to both a conservative-stacked court and a broader Republican Party committed to dulling the government’s ability to act on behalf of its people.

Of note is that Biden’s rule is a self-proclaimed effort to achieve a “middle ground” between the Obama and Trump rules, and in fact mirrors much of the degree of regulatory jurisdiction settled before Obama’s updates. Nevertheless, Republicans still cannot stop themselves from hollowly railing against “federal overreach,” even while their counterparts are operating in a fairly conciliatory manner.

And still, Republicans pretending to care about the people of East Palestine and their waterways have signed on to a party-wide effort to roll back water protections. Their guiding mission to deregulate the economy trumps all sense, welfare of people or the environment be damned. All while companies like Norfolk Southern funnel millions into lobbying and buying favor from politicians, leading to as few as four Republicans collecting almost half a million dollars in less than two presidential election cycles.

The interconnectedness and fluidity of the flow of our water necessitates a granular and careful water protection, not a flippant and relaxed one; Republicans are working yet again to maintain the latter.

Since the East Palestine, Ohio, train derailment, Republicans have continued their campaign of pretending to care about working people, environmental damage, infrastructure, and community welfare generally. But a select group of them—Marco Rubio, Ted Cruz, Josh Hawley, and Ron Johnson—have consistently raked in cash from the top four American railroad companies. Since the 2016 cycle, these four Republicans alone have collected at least $472,000 from rail giants BNSF, CSX, Union Pacific, and Norfolk Southern.

The rail companies have contributed to other Republicans of course, and to Democrats as well. But Senators Rubio, Cruz, Johnson, and Hawley have gone above and beyond in pretending to care about rail workers and the people of East Palestine.

Rubio, Hawley, and Cruz were among a handful of Republicans last December who signed on to Bernie Sanders’s bill that would have added seven days of paid sick leave to the rail workers’ contract. The bill fell short, which may explain the famously anti-labor Republican senators’ willingness to support it.

Since the East Palestine train derailment, Rubio has spent a significant amount of time calling for Pete Buttiegieg’s resignation. But since 2016, Rubio himself received at least $54,500 from the big four rail giants, while his PAC has received at least $107,000.

Cruz has said he hopes that after Ohio, policymakers will “address the derailment’s root causes rather than simply advance narrow political interests.” (He issued this statement one day after posting a Twitter video celebrating low regulation.) But you don’t have to look far to determine which Cruz is which: Since 2016, Cruz has received at least $32,500 from the big four rail giants, while his PAC has received nearly $100,000 from them.

And Cruz has done his best to earn the corporate cash. In 2021, he co-sponsored legislation narrowing the amount of time agencies have to complete environmental reviews of proposed federal action, and assigning penalties to agencies that don’t comply with those timelines. Cruz also pushed a bill in the same Congress, alongside Senators John Kennedy and Kevin Cramer, to prohibit the Department of Transportation from issuing any regulation to limit the transportation of liquefied natural gas by rail.

Nearly two weeks after the East Palestine train derailment, Hawley sent a letter to the Environmental Protection Agency expressing his supposed concern for “the health, safety, and well-being” of those affected. He has since complained about corporations, the EPA, and Buttigieg. Meanwhile, his Fighting for Missouri PAC received $3,000 from the aptly named Norfolk Southern Corporation Good Government Fund and $10,000 from BNSF before the 2020 election. Hawley also received a personal $2,000 donation from Norfolk Southern board member Thomas D. Bell Jr., during the 2018 cycle. As Missouri attorney general, Hawley was among the Republican officials who helped weaken Obama-era water protections.

Johnson has sent out multiple fundraising emails about the East Palestine derailment, feigning concern for the community before shamelessly asking voters to pay off his campaign debts. And again, since 2016, Johnson received at least $53,500 from the big four companies, while his PAC pulled in $114,000 from them.

One of the few rail-related bills Johnson co-sponsored was backed by the Association of American Railroads and sought to delay the industry-wide implementation of a monitoring system to help prevent train collisions and derailments.

Again, these Republicans aren’t alone. Ohio Governor Mike DeWine, who has still refused to declare a statewide emergency or disaster, has received at least $29,000 from Norfolk Southern since 2018, as well as another $2,000 from CSX.

And as TNR has reported, rail corporations’ influence is also cross-partisan. Hakeem Jeffries, the conservative Democratic Blue Dog Coalition’s PAC, Joe Manchin, Jim Clyburn, and Sean Patrick Maloney were among the many 2022 election recipients of funds from Norfolk Southern’s “Good Government Fund.”

But Republicans’ guilt is particular, insofar as their purported concern for the derailment lies in direct opposition to their fundamental ideology of cutting regulation. While corporate greed pervades both parties, conservative regulation-cutting ideology is much more foundational to the Republican political project.

Accordingly, if Democratic leadership wants to genuinely present the party as an alternative to Republicans beset by the ills of regulatory capture, they ought to prove which party is more interested in carrying out governance.

And the contrast is already on display. Representatives Ro Khanna and Chris Deluzio have introduced legislation to expand the definition of “high-hazard flammable trains” and ensure reforms like Obama-era braking updates would apply to trains like the derailed one in East Palestine. Meanwhile, conservatives are by and large offering no solutions beyond lip service to the people, and favors to the corporations lining their pockets.