The Truth About Torts: Regulatory Preemption at the Federal Railroad Administration

During the Bush II Administration, the Federal Railroad Administration (FRA), the federal agency charged with overseeing railroad safety, aggressively asserted the preemptive authority of its regulations, continuing to write broad preemption language into the preambles to its rules asserting that injured parties have no ability to seek compensation for their injuries or loss of loved ones, and even ignoring Congress’ attempt to amend the Federal Railroad Safety Act, the statute that governs federal railroad safety, to clarify that regulations issued under the statute are not intended to preempt state tort law. The white paper argues that the FRA should discontinue its efforts to preempt state tort law, explaining that a complementary system of federal regulatory standards and state common law is the best way to achieve railroad safety for passengers and railroad employees. In brief, it argues that a complementary tort system should be retained because: 1. The FRA is a resource-starved agency unable to prevent accidents: State common law provides a backstop for the failure of the agency to adequately investigate accidents or enforce its regulations. 2. The FRA is captured by industry: Because the agency has placed so much responsibility with industry to regulate itself, the tort system is needed to serve as an independent monitor of industry’s activities to ensure they are undertaken with safety in mind. 3. The FRA is unable to hold railroads accountable for improving safety: The agency relies on the railroad industry as a partner in doing its job, which hinders its ability to spur the railroad industry into taking appropriate measures to prevent railway accidents. 4. State common law preserves corrective and protective justice: A person’s right to seek redress for harm inflicted on him or her should never be obliterated by federal preemptive power. The white paper concludes by offering various recommendations for how the FRA and Congress can each promote the complementary roles that federal regulation and state common law can play in ensuring greater railroad safety.