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Federal Agencies and States Pursue New Regulations for Oil Trains, Face Court Challenges

April 8, 2015

The North American oil boom, combined with absent or inadequate pipeline infrastructure, has resulted in an unprecedented increase in transportation of crude oil by rail car. Resulting rail accidents have spawned legislation and regulations designed to address safety concerns. The regulatory response has, in turn, resulted in litigation seeking to define the regulatory turf between federal and state agencies.

The dramatic upswing in crude-by-rail shipping has been accompanied by a number of significant train derailments. Though annual U.S. derailments resulting in a release of crude oil have remained in the single digits throughout this period, these accidents – with their explosions, fires, oil spills, and, at times, tragic loss of life – have captured the public’s attention and moved federal, state, and private parties to act. New federal rules aimed at improving the safety of tanker cars are expected presently, and pending litigation could result in additional federal action. State regulators are also attempting to enter the field, with California having recently enacted oil train legislation and Washington contemplating a similar move. State regulation of railroads, however, raises significant questions with regard to federal preemption. These questions are already being litigated in a federal court in California; should other states follow California’s lead in enacting oil train legislation, further litigation will inevitably ensue.

I. The Oil Boom: Why Rail?

 A. Increased U.S. Crude Oil Production

The advent of hydraulic fracturing (“fracking”) in United States oil production has both increased production and shifted the locus of that production. As shown on Figure 1, United States field production of crude oil, which peaked at 9,637 thousand barrels per day (Mbbl/d) in 1970, and declined to a low of 5,000 Mbbl/d by 2008, rebounded to 8,653 Mbbl/d in 2014.[1] According to the Energy Information Administration, U.S. production reached 9,226 Mbbl/d in December, 2014 for the first time since May, 1973.[2]

The increase in crude oil production has not been evenly distributed among traditional oil-producing states. To the contrary, as shown in Table 1, production in Texas has soared from 1,094 Mbbl/d in 2009 to 3,159 Mbbl/d in 2014, while production in Alaska has decreased from 645 Mbbl/d to 497 Mbbl/d over the same period. North Dakota, with oil production from the Bakken shale, has seen production jump from 172 Mbbl/d in 2008 – ranking sixth among states – to 1,087 Mbbl/d in 2014, second only to Texas. North Dakota’s production of crude oil topped 1,227 Mbbl/d in December 2014.[3] Crude oil production levels in California, the site of the majority of West Coast refinery capacity, have been stagnant.

Figure 1
U.S. Daily Field Production of Crude Oil in Thousand Barrels per Day (Mbbl/d)[4]

Table 1
U.S. Leading Producers of Crude Oil (Mbbl/d)[5]

State200920102011201220132014Rank in 2009Rank in 2014
N. Dakota2183104196668601,08742

B. Pipeline Infrastructure

The combination of the increase in crude oil production and the shift to production in North Dakota has made a significant contribution to the increase in transportation of oil by rail car. As shown on Figure 2, the oil pipeline infrastructure in the upper Midwest is not nearly as extensive as in the South; moreover, the absence of pipeline routes between the Bakken fields and West Coast refineries is obvious.

Figure 2
Oil Refineries and Oil Pipelines

Source: EIA

II. Impacts

A. Rail Traffic

As shown on Figure 3, transportation of crude oil and petroleum products by rail has more than doubled since the beginning of 2011. Transportation of these products in the first seven months of 2014 increased 9 percent over the same period in 2013.[6]

Figure 3
U.S. Oil by Rail

The increase is even more pronounced when only crude oil is considered. As reported by the U.S. Energy Information Administration (EIA):

[The Association of American Railroads] estimates that more than half of the nearly 460,000 carloads tracked in its petroleum and petroleum products category from January through July consisted of crude oil, up from around 3% in 2009. With the average rail tank car holding around 700 barrels of crude oil, about 759,000 barrels of crude oil per day were moved by rail during the first seven months of 2014, equal to 8% of U.S. oil production.[8]

The boom in crude-by-rail requires infrastructure to load and unload tank cars of crude oil. Figure 4 shows the location of existing loading and unloading terminals. Unloading terminals are concentrated along the Northeastern seaboard, the Gulf Coast, and the West Coast.

Figure 4
Crude-by-Rail Infrastructure

B. Accidents

As Figure 5 depicts, the number of annual derailments resulting in spills of crude oil remains in the single digits. A number of high-profile accidents over the past two years, however, have involved trains carrying crude oil.

Perhaps the most notable of these accidents took place in Lac-Mégantic, Quebec in July 2013. The Final Report of the Transportation Safety Board of Canada provides the following summary of the Lac-Mégantic catastrophe:

On 06 July 2013, shortly before 0100 Eastern Daylight Time, eastward Montreal, Maine & Atlantic Railway freight train MMA-002, which was parked unattended for the night at Nantes, Quebec, started to roll. The train travelled approximately 7.2 miles, reaching a speed of 65 mph. At around 0115, when MMA-002 approached the centre of the town of Lac-Mégantic, Quebec, 63 tank cars carrying petroleum crude oil (UN 1267) and 2 box cars derailed. About 6 million litres of petroleum crude oil spilled. There were fires and explosions, which destroyed 40 buildings, 53 vehicles, and the railway tracks at the west end of Megantic Yard. Forty-seven people were fatally injured. There was environmental contamination of the downtown area and of the adjacent river and lake.[9]

The tank cars originated at New Town, North Dakota, and carried Bakken crude oil.[10]

Figure 5
U.S. Derailments with Release of Crude Oil or Ethanol

A number of trains carrying crude oil have derailed since Lac-Mégantic, although none of these derailments has approached the scope of the damage caused by that accident.

On November 7, 2013, an Alabama and Gulf Coast Railway crude oil unit train derailed just south of Aliceville, Alabama. Of its 90 train cars, 26 derailed. Three exploded, setting additional cars ablaze. Approximately 630,000 gallons of crude oil spilled, impacting an adjacent wetland slough. The tank cars were carrying Bakken crude from North Dakota.[12]

Thirteen cars of a westbound BNSF Railway grain train derailed near Casselton, North Dakota on December 30, 2013. One derailed grain car fouled a second track, resulting in a collision with an eastbound BNSF Railway petroleum crude oil unit train. The head end locomotive and first 21 cars of the oil unit train derailed. Twenty of the derailed cars were tank cars. Eighteen of the tank cars were punctured, resulting in explosions and the release of approximately 400,000 gallons of crude oil. [13]

2014 saw only one oil trail derailment of note. On April 30 of that year, seventeen tank cars of a CSX crude oil unit train derailed near Lynchburg, Virginia. Three cars burned, and approximately 30,000 gallons of oil spilled, impacting the adjacent James River. The tank cars were carrying Bakken crude oil.

Two U.S. derailments have already made headlines in 2015. On February 16, 27 cars of a 107-car CSX train carrying over 3,000,000 gallons of Bakken crude derailed in Mt. Carbon, West Virginia, near a tributary of the Kanawha River. Approximately 20 of the derailed cars burned or exploded, destroying a nearby house and requiring nearby residents to evacuate.[14] Most recently, on March 5, 21 cars on a BNSF train derailed near Galena Illinois, near the Galena and Mississippi rivers. Seven tanker cars ruptured, five of which burned. [15]

III. Legal and Regulatory Issues

The combination of the significant increase in shipment of crude oil by rail and a number of high-profile derailments has moved federal agencies, state regulators, and private entities to act.

A. Proposed Federal Rulemaking

A focus of rail car regulatory concern is the nation’s fleet of DOT-111 rail cars. According to the Association of American Railroads,[16] there are approximately 335,000 tank cars in the active fleet, of which 228,000 are “DOT-111” tank cars: “non-pressurized tank cars designed to carry a wide range of products including hazardous and non-hazardous materials.” Of the 92,000 DOT-111 tank cars used to move flammable liquids (including crude oil and ethanol), “approximately 14,000 [are] built to the latest industry safety standards.” The Federal Railroad Administration (FRA) (rail safety) and Pipeline and Hazardous Materials Safety Administration (PHMSA) (hazardous materials) have been exploring regulatory options. A proposed PHMSA rule[17] that would do the following:

  • Require those shipping “mined gases and liquids” to have written sampling and testing plans to determine the classification and characterization of the material being offered for shipment.
  • Require trains carrying more than one million gallons of Bakken crude to notify State Emergency Response Commissions or other appropriate state delegated entity about the operation of the trains through the states.
  • Define a “high-hazard flammable train” (HHFT) as a train comprised of 20 or more carloads of a Class 3 flammable liquid, and establish requirements for HHFTs –
    • A rail routing risk assessment: the carrier must select a route based on findings of an analysis that considers 27 safety and security factors.
    • Reduced operating speeds and enhanced braking systems.
    • Enhanced standards for new and existing tank cars, with mandatory retrofitting of existing tank cars that are part of an HHFT.

The Department of Transportation’s most recent Significant Rulemaking Report[18] indicates that a final rule will be published by May 12, 2015.

Interested parties, however, have not been content to rely solely on the proposed federal agency action. On July 15, 2014 Earthjustice petitioned the Secretary of Transportation for an emergency order banning shipment of Bakken crude oil in so-called “legacy” DOT-111 tank cars – those that lack certain safety improvements adopted by industry in recent years.[19] After the Secretary denied the petition on November 7, 2014, Earthjustice filed a Petition for Review of the Secretary’s decision in the U.S. Court of Appeals for the Ninth Circuit.[20]

B. Legislation in California and Washington

States have also attempted to enter the field of oil train regulation. Responding to the increase in crude-by-rail shipments and the oil train accidents in the United States and Canada, California recently enacted S.B. 861. S.B. 861, among other things, extends certain elements of California’s existing oil-spill law (the Lempert-Keene-Seastrand Oil Spill Prevention and Response Act, or OSPRA) to railroads carrying crude oil.[21] At the heart of S.B. 861’s crude-by-rail provisions is the requirement that oil-transporting railroads prepare the oil spill contingency plans previously required of other facilities:

In accordance with the rules, regulations, and policies established by the [California Administrator for Oil Spill Response (Administrator)] … an owner or operator of a facility … while operating in the waters of the state or where a spill could impact waters of the state, shall have an oil spill contingency plan that has been submitted to, and approved by, the administrator. … An oil spill contingency plan shall ensure the undertaking of prompt and adequate response and removal action in case of a spill, shall be consistent with the California oil spill contingency plan, and shall not conflict with the National Oil and Hazardous Substances Pollution Contingency Plan (NCP).[22]

OSPRA sets certain minimum requirements for these contingency plans. For example, the plan must “[p]rovide for the use of an incident command system to be used during a spill” and “[d]escribe the strategies for the protection of environmentally sensitive areas.”[23] It also directs the Administrator to “adopt and implement regulations governing the adequacy of oil spill contingency plans,” taking into account the contingency plan requirements of “the State Lands Commission, the Office of the State Fire Marshal, the California Coastal Commission, and other state and federal agencies.”[24] In determining whether to approve a contingency plan, the Administrator will consider its compliance with these regulations.[25] The Administrator can bar an oil-carrying railroad without an approved contingency plan from operating in California.[26] S.B. 861 also subjects railroads transporting oil to OSPRA’s requirement that facilities “demonstrate to the satisfaction of the administrator the financial ability to pay for any damages that might arise during a reasonable worst case oil spill into waters of the state that results from the operations of the facility.”[27] Penalties for non-compliance are significant – fines of up to $250,000 per day as well as imprisonment for operating without an approved contingency plan, and fines of up to $50,000 per day and imprisonment for operating without a financial responsibility certification.[28]

In April 2014, the Washington Legislature authorized funds for the Department of Ecology to prepare a study of the public health and safety risks and environmental impacts of rail and marine transportation of oil in Washington. The Department of Ecology’s draft “Marine and Rail Oil Transportation Study” was published in December 2014. The final report, including responses to public comments, was published in March 2015.[29] The study includes an extensive set of recommendations ranging from seeking voluntary limits on the speed of high hazard flammable trains to pursuing new legislation and regulations subjecting oil trains to requirements for oil spill contingency plans and certification of financial responsibility.

Two oil train bills are now pending in Washington State: 1) S.B. 5057,[30] passed by the Senate on March 9, 2015 and currently before the House Committee on Environment, would require facilities receiving shipments of crude oil by rail to provide the Department of Ecology with advanced notice of said shipments[31] and mandate minimum crew sizes for trains carrying hazardous materials.[32] 2) H.B. 1449,[33] which passed the House on March 5, would, like California’s S.B. 861, require railroads to prepare “contingency plan[s] for the containment and cleanup of oil spills” to be approved by the Department of Ecology.[34] It would also require railroads carrying crude oil to demonstrate financial responsibility,[35] and to provide Ecology with advance notice of transfers of crude oil between railroads and other facilities.[36] H.B. 1449 is currently before the Senate Committee on Energy and Environment & Telecommunications.

C. Federal Preemption

State regulation of railroads inevitably poses serious preemption problems: the federal role in regulating rail carriers and the shipment of hazardous cargoes is extensive – and largely exclusive.

1. The Federal Railroad Safety Act: Express, but Limited, Preemption

In the Federal Railroad Safety Act (FRSA), Congress directed the Secretary of Transportation to “prescribe and issue orders for every area of railroad safety,” and explicitly stated its preference for national uniformity of railroad regulations:

Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable.[37]

The FRSA also includes a preemption clause:

A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order--

(A) is necessary to eliminate or reduce an essentially local safety or security hazard;

(B) is not incompatible with a law, regulation, or order of the United States Government; and

(C) does not unreasonably burden interstate commerce.[38]

Thus, while the FRSA makes clear that Congress prefers uniform rail safety regulation, it does leave open the door to state regulation where DOT has not issued an order or regulation “covering the subject matter of the State requirement” or where the state rule satisfies the aforementioned three-part test.

2. The Interstate Commerce Commission Termination Act: Broad and Exclusive Jurisdiction for the Surface Transportation Board

The Surface Transportation Board (STB) was created by the Interstate Commerce Commission Termination Act of 1995 (ICCTA).[39] The ICCTA gives the STB exclusive jurisdiction over transportation by rail carrier. Specifically:

(b) The jurisdiction of the Board over—

(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and

(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State, is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.[40]

The courts have found in these provisions of the ICCTA a broad congressional intent to preempt local and state environmental regulation of rail carriers:

[Given] the broad language of § 10501(b)(2), … the distinction between “economic” and “environmental” regulation begins to blur. For if local authorities have the ability to impose “environmental” permitting regulations on the railroad, such power will in fact amount to “economic regulation” if the carrier is prevented from constructing, acquiring, operating, abandoning, or discontinuing a line.

We believe the congressional intent to preempt this kind of state and local regulation of rail lines is explicit in the plain language of the ICCTA and the statutory framework surrounding it.[41]

The ICCTA also codifies the “common carrier” duty of rail carriers under STB jurisdiction: “A rail carrier providing transportation or service subject to the jurisdiction of the Board under this part shall provide the transportation service on reasonable request.”[42] As a result, common carrier railroads cannot simply refuse to handle oil or other such hazardous cargo.

3. Current Litigation

Given the extensive – but not entirely exclusive – federal role in the regulation of railroads, it should come as no surprise that California’s oil train legislation is already being challenged in federal court. Should Washington enact S.B. 5057 or H.B. 1449, similar litigation will likely follow.

In October 2014, the Association of American Railroads, Union Pacific Railroad Company and BNSF Railway Company responded to California S.B. 861 by filing suit against the California Office of Spill Prevention and Response in U.S. District Court in Sacramento.[43] The railroads focus on the FRSA and ICCTA, arguing that these statutes and corresponding regulations preempt S.B. 861’s contingency planning and financial certification requirements.[44] Of the relationship between S.B. 861’s oil spill contingency planning requirements and FRSA and its regulations, plaintiffs argue that “it is hard to imagine a more perfect overlap between federal and state regulations than the one presented here.”[45] In particular, the plaintiffs point to DOT regulations codified at 49 C.F.R. Parts 130, 172 and 174 as “prescribe[ing] detailed rules concerning not just the transportation of crude oil by rail generally, but specifically the written prevention and response plans that railroads must have in place and on file with the federal government.”[46] Similarly, they argue that the ICCTA prohibits states from imposing permitting or pre-clearance requirements on rail transportation, and therefore preempts the California law’s financial-certification and contingency-planning provisions.[47] The plaintiffs also contend that the Locomotive Inspection Act (LIA) and Safety Appliance Act (SAA) preempt S.B. 861.

California offers several merits arguments in response. With regard to the FRSA, the state claims that while that act preempts state rules “related to railroad safety and … railroad security,” S.B. 861 “is unrelated to railroad safety and security … because it has nothing to do with either rail operations or reducing rail accidents.”[48] Instead, the state claims, S.B. 861 pertains only to “water quality after an accident.”[49] California also claims that “preemption under the FRSA is extremely difficult to establish,”[50] and that the railroads have not met the FRSA bar of demonstrating that DOT has issued regulations or orders “covering the subject matter of the State requirement.”[51] With regard to the DOT regulations cited by plaintiffs, California states that 49 C.F.R. Parts 172 and 174 “have nothing to do with oil spill plans.”[52] The state then argues that the regulations in Part 130 were not issued pursuant to authority the agency possessed at the time the FRSA was enacted, and therefore have no preemptive effect.[53] In opposing the railroads’ claims that the ICCTA preempts S.B. 861, California argues that this act “only preempts state laws that regulate rail ‘transportation’ as defined by statute,” and that S.B. 861 does no such thing.[54] Moreover, according to the state, the ICCTA “does not preempt generally applicable, non-discriminatory state laws … so long as such laws do not directly impede rail transportation,” and S.B. 861’s contingency planning and financial certification provisions do not have this effect.[55] Lastly, California argues that neither the LIA nor the SAA contains an express preemption clause, and that neither “conflict” nor “field” preemption applies.[56]

The plaintiff railroads sharply dispute the state’s arguments. Pointing to S.B. 861 requirements such as “safety training … for all personnel likely to be engaged in oil spill response,” the railroads claim that S.B. 861 is indeed “related to railroad safety.”[57] They further argue that “there is no legal or logical basis” for California’s claim that post-spill regulations cannot be related to railroad safety.[58] The railroads also argue that 49 C.F.R. Part 172 addresses spill response, and that, with regard to California’s position on Part 130 regulations, the Supreme Court in CSX Transp. v. Easterwood[59] “expressly rejected the argument that preemptive force attaches to regulations issued by DOT only when they are promulgated under certain statutes, not others.”[60] With regard to the state’s arguments relating to the ICCTA, the plaintiffs cite the Supreme Court’s decision in Railroad Transfer Service, Inc. v. City of Chicago[61] as foreclosing any contention that S.B. 861’s criminal and civil penalties will not impede rail operations.[62] The railroads also argue that S.B. 861 is not a “generally applicable” law, and even if it were, it would be preempted under the rule that state laws or regulations imposing permitting or pre-clearance obligations are categorically preempted.[63]

It is possible that the court will not even reach these questions – California has argued that because S.B. 861’s implementing regulations have not yet been promulgated, the railroad’s challenge is not ripe. But in any event, these arguments will likely resurface should Washington or other states follow in California’s footsteps.

For more information please contact Richard Allan at Marten Law.

[1] http://www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=PET&s=MCRFPUS2&f=A.

[2] http://www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=PET&s=MCRFPUS1&f=M

[3] http://www.eia.gov/dnav/pet/pet_crd_crpdn_adc_mbblpd_m.htm

[4] http://www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=PET&s=MCRFPUS1&f=M

[5] http://www.eia.gov/dnav/pet/pet_crd_crpdn_adc_mbblpd_m.htm

[6] http://www.eia.gov/todayinenergy/detail.cfm?id=19331

[7] Id.

[8] Id.

[9] Transportation Safety Board of Canada, “Railway Investigation Report R13D0054,” available at http://www.tsb.gc.ca/eng/rapports-reports/rail/2013/r13d0054/r13d0054.pdf

[10] Id. at 8.

[11] Source: U.S. Department of Transportation, Pipeline and Hazardous Materials Safety Administration, at http://app.ntsb.gov/news/events/2014/railsafetyforum/presentations/Panel%204_B_Magdy%20El-Sibaie.pdf

[12] U.S. Environmental Protection Agency, Region 4 Emergency Response, “Aliceville Train Derailment,” http://www.nrt.org/production/nrt/RRTHomeResources.nsf/resources/RRT4Feb2014Meeting/$File/Aliceville_EPA_Presentation_Garrard.pdf

[13] National Transportation Safety Bureau, “Preliminary Report, Accident No. DCA14MR004, at http://www.scribd.com/doc/199367474/Casselton-ND-Preliminary-Report

[14] U.S. Environmental Protection Agency, “EPA Orders CSX to Clean up Areas Impacted by West Virginia Train Derailment,” http://yosemite.epa.gov/opa/admpress.nsf/0/d095aece58bea08385257df9007c782d. See also Administrative Order on Consent between EPA and CSX (Docket No. CWA-03-2015-0105CW), https://www.epaosc.org/sites/9762/files/Mt.%20Carbon%20AOC.pdf.

[15] U.S. Environmental Protection Agency, “Galena Train Derailment,” http://www2.epa.gov/il/galena-train-derailment

[16] https://www.aar.org/Fact%20Sheets/Safety/Railroad%20Tank%20Cars%20Fact%20Sheet.pdf

[17] 79 Fed. Reg. 45016 (Aug. 1, 2014).

[18] http://www.dot.gov/regulations/report-on-significant-rulemakings

[19] http://earthjustice.org/sites/default/files/files/PetitionforEmergencyOrderReBakkenCrudeRailCars.pdf

[20] http://earthjustice.org/sites/default/files/files/Petition%20for%20Review%20DOT-111.pdf

[21] Cal. Gov't Code § 8670, et seq. See also http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB861

[22] See Cal. Gov’t Code § 8670.29(a).

[23] Cal. Gov’t Code § 8670.29(b).

[24] Cal. Gov’t Code § 8670.28(a).

[25] Cal. Gov’t Code § 8670.21(b).

[26] Cal. Gov’t Code § 8670.69.4.

[27] Cal. Gov’t Code § 8670.37.51-55.

[28] See Cal. Gov’t Code §§ 8670.64-65.

[29] https://fortress.wa.gov/ecy/publications/SummaryPages/1508010.html

[30] http://lawfilesext.leg.wa.gov/biennium/2015-16/Pdf/Bills/Senate%20Bills/5057-S2.E.pdf.

[31] S.B. 5057 § 6.

[32] S.B. 5057 §§ 24-26.

[33] http://lawfilesext.leg.wa.gov/biennium/2015-16/Pdf/Bills/House%20Bills/1449-S.E.pdf.

[34] H.B. 1449 § 5.

[35] H.B. 1449 § 12.

[36] H.B. 1449 § 8.

[37] 49 U.S.C. § 20106(a)(1).

[38] 49 U.S.C. § 20106(a)(2).

[39] 49 U.S.C. §§ 10101-11908.

[40] 49 U.S.C. § 10501(b).

[41] City of Auburn v. United States Government, 154 F.3d 1025, 1031 (9th Cir. 1998); see also Ass’n American Railroads v. S. Coast Air Quality, Case No. 07-55804 (9th Cir., Sept. 15, 2010) (air quality management district’s rules regulating emissions from idling trains are plainly preempted by the ICCTA when the rules have not been approved by EPA as part California’s State Implementation Plan).

[42] 49 U.S.C. § 11101(a).

[43] Complaint for Injunctive and Declaratory Relief, Association of American Railroads v. California Office of Spill Prevention and Response (E.D. Cal., October 7, 2014) (No. 2:14-cv-02345-TLN-CKD).

[44] See id. at 16-18.

[45] Plaintiff’s Brief in Support of Motion for Preliminary Injunction at 14, Association of American Railroads v. California Office of Spill Prevention and Response (E.D. Cal., October 10, 2014) (Case 2:14-cv-02345-TLN-CKD).

[46] Id. at 14-15.

[47] Id. at 19-21.

[48] Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiff’s Motion for Preliminary Injunction at 11, Association of American Railroads v. California Office of Spill Prevention and Response (E.D. Cal., December 5, 2014) (Case 2:14-cv-02345-TLN-CKD) (emphasis in original).

[49] Id.

[50] Id. at 15 (citing Glow v. Union Pac. R. Co., 652 F. Supp. 2d 1135, 1145 (E.D. Cal. 2009)).

[51] See id. at 14-15.

[52] Id. at 15-16.

[53] Id. at 16-17.

[54] Id. at 18.

[55] Id. at 20.

[56] Id. at 23-24.

[57] Plaintiff’s Reply Brief in Support of Motion for Preliminary Injunction at 7, Association of American Railroads v. California Office of Spill Prevention and Response (E.D. Cal., December 19, 2014) (Case 2:14-cv-02345-TLN-CKD).

[58] Id. at 8.

[59] 507 U.S. 658 (1993).

[60] Plaintiff’s Reply Brief in Support of Motion for Preliminary Injunction at 11, Association of American Railroads v. California Office of Spill Prevention and Response (E.D. Cal., December 19, 2014) (Case 2:14-cv-02345-TLN-CKD).

[61] 386 U.S. 351 (1967)

[62] Plaintiff’s Reply Brief in Support of Motion for Preliminary Injunction at 15-16, Association of American Railroads v. California Office of Spill Prevention and Response (E.D. Cal., December 19, 2014) (Case 2:14-cv-02345-TLN-CKD).

[63] Id. at 16.


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