All Aboard! Making the Case For a Comprehensive Rerouting Policy to Reduce the Vulnerability of Hazardous Railcargoes to Terrorist Attack

AuthorRoss C. Paolino
Pages07

144 MILITARY LAW REVIEW [Vol. 193

ALL ABOARD! MAKING THE CASE FOR A COMPREHENSIVE REROUTING POLICY TO REDUCE THE VULNERABILITY OF HAZARDOUS RAILCARGOES TO

TERRORIST ATTACK

ROSS C. PAOLINO*

Graniteville, South Carolina, two a.m. While most of Graniteville's residents are sound asleep in their homes, a Norfolk Southern Railway Company freight train is steadily approaching their small town. Graniteville's residents are oblivious to the abrupt devastation that will rouse them from their sleep within the hour. As three a.m.1 approaches, a deafening explosion rocks Graniteville as the Norfolk Southern train collides with a parked train at a railroad crossing.2 Although the collision derails three locomotives and sixteen railcars, it is the rupturing of a single tank car carrying chlorine gas that results in catastrophe.3 The ruptured chlorine tanker sends an estimated 11,500 gallons of toxic chlorine gas spewing into the air.4 The toxic cloud of chlorine gas ultimately leads to eight deaths, 630 injuries, and the evacuation of 5400 residents.5 After the accident, the neighborhoods surrounding Graniteville are uninhabitable for days.6

Every day, more than one million shipments of hazardous chemicals are transported throughout the nation's infrastructure; a large percentage of these chemicals are transported by rail and are prone to becoming airborne, and potentially deadly, in the event of an accident.7 Although the devastation in Graniteville was accidental, it illustrates the potential catastrophic human and economic losses that could result from a coordinated terrorist strike on a train transporting these chemicals.8

Despite the danger of an attack that could dwarf the fatalities of the September 11th attacks, and the known use of this devastating method of attack by terrorist insurgents in Iraq, the Federal Government has essentially done little to protect Americans from the dangers posed by these toxic chemicals.9

Unwilling to leave their citizens vulnerable while the Federal Government remains stagnant on the issue, state and local lawmakers have begun to consider legislation for rerouting trains carrying toxic

chemicals away from urban population centers.10 The inherent problem with such legislation is the likely invalidation for violating the Commerce Clause of the U.S. Constitution, as well as preemption by existing federal law.11 Despite such invalidation, it is entirely unacceptable to allow the American people to dangle in the cross-hairs of a very real and dangerous terrorist threat until the Federal Government acts decisively.

This article argues for the adoption of a system of petitionary exceptions, whereby a state or local government, through a petition to the Department of Homeland Security (DHS), can receive the authority to reroute trains carrying toxic chemicals away from densely populated urban areas until the Federal Government passes comprehensive legislation to protect the nation's railway infrastructure. Such a system would allow DHS to engage in a risk-based approach12 in granting rerouting authority, thereby minimizing the effects on interstate commerce. Furthermore, DHS could remain consistent with the opinions of security experts in immediately eliminating the potential for a terrorist attack,13 yet still leave open the opportunity for federal action on the issue.

Part I of this article articulates the vulnerability of the Nation's railway infrastructure to terrorist attack and the inadequacies of the protections currently in place. Part II discusses the Washington, D.C. City Council's local efforts to combat the threat posed to hazardous railcargoes. Part III describes the actions of numerous localities in following the D.C. City Council's lead to protect their jurisdictions from terrorist attack, but also predicts the ultimate failure of these efforts on

various grounds. Part IV sets forth a system of petitionary exceptions to reduce the vulnerability of hazardous railcargoes to terrorist attack. Finally, Part V explains how this system of petitionary exceptions should ultimately constitute one layer of a multi-faceted and comprehensive policy to protect the Nation's railway infrastructure from terrorist attack.

  1. The Vulnerability of the Nation's Railway Infrastructure

    This section addresses the vulnerabilities of the U.S. rail infrastructure by examining the reality of the threat posed to the infrastructure by a terrorist attack, as well as the inadequacy of the safeguards currently in place to avert such an attack.

    A. The Reality of the Threat

    The greatest threat to the security of the American people is a terrorist armed with a chemical, biological, radiological, or nuclear weapon.14 History is riddled with examples of chemical catastrophes that, although accidental, provide a riveting example of the potential devastation of a chemical terrorist attack on American soil.15 Within only the past few years, accidents involving chemical railcars have killed several people and prompted the evacuation of thousands more.16 Rail

    shipments of toxic chemicals often pass through highly-populated urban areas and represent an extremely attractive target for terrorists.17

    Although opponents to rerouting maintain that it only transfers the risk to other jurisdictions, the transferred risk would no longer be that of a terrorist attack, but rather the pre-existing risk of non-terrorist related transportation accidents.18

    The U.S. Naval Research Laboratory estimates that nearly 100,000 deaths or injuries could result, within only thirty minutes, from an attack on a chemical railcar during a populated event on the National Mall.19

    Terrorist insurgents in Iraq have taken advantage of this potential for devastation by using explosives to weaponize chlorine tankers, killing, injuring, and sickening scores of innocent civilians.20 American and Iraqi officials have stated that the use of weaponized chlorine gas as "dirty bombs" has brought fears of a new and deadly insurgent tactic with the potential to create mass casualties and large-scale panic.21

    The recognition of using a railcar loaded with toxic chemicals as a weapon of mass destruction (WMD)22 is not new. In fact, the U.S. intelligence community recognizes that al-Qa'ida23 is focused on targeting the U.S. rail infrastructure for an attack, particularly by using "hazardous material containers" to carry out the attack.24 These concerns are further heightened by the FBI's seizure of al-Qa'ida photographs of U.S. railroad engines, cars, and crossings.25

    Deadly attacks on rail systems throughout the world present the troubling reality that America's rail infrastructure is a vulnerable terrorist target. Since September 11th, al-Qa'ida has orchestrated attacks on the rail systems in Madrid, killing 191 people and wounding more than 1500; in London, killing fifty-two people and injuring 700; and in Mumbai, India, killing nearly 200 people and injuring hundreds more.26

    In the first few months of 2007 in New York City alone, "there have been [twenty-two] bomb threats and [thirty-one] intelligence leads related to subway attack plots."27 The terrorist threat to the nation's rail infrastructure is obviously real-an attack using a weaponized chemical railcar would not only result in mass casualties, but also cripple the infrastructure. Given the reality of the threat, why is the attention and funding afforded to the nation's rail system equivalent to what one expert equates to "an embarrassment?"28

    B. The Inadequate Efforts to Combat the Threat

    After the September 11th attacks, the Federal Government developed standardized and heightened security measures to protect U.S. airlines, airports, and maritime ports, yet did not afford proportional protection to the U.S. rail system.29 Given the fact that attacks on the rail system are far more likely than attacks on the aviation infrastructure, largely because rail security has lagged behind other transportation infrastructures, the vulnerability of the U.S. rail system is particularly troubling.30 A federal civil action brought by the State of Nevada in June of 2002 highlighted the problem.31 Nevada sued "the Department of

    Energy for failing to 'address the environmental impacts and terrorism risks from tens of thousands of . . . rail . . . shipments of high-level radioactive waste through 44 states, 109 major cities and 703 counties with a combined population of 123 million.'"32

    On 11 March 2004, terrorists attacked commuter trains in Madrid, Spain, killing 191 people.33 The attack on public commuter trains seemed to provide an impetus for the U.S. Congress finally to take the security of the nation's rail infrastructure seriously. Shortly after the attacks in Madrid, the Senate Commerce, Science, and Transportation Committee approved the Rail Security Act of 2004.34 Unfortunately, the legislation never left the Senate and never became law.35 Recent efforts to reintroduce similar legislation, particularly the Rail Security Act of 2005, never advanced.36 Legislation aimed at rerouting hazardous railcargoes away from highly populated areas has been introduced in the past two Congresses to no avail, and present motivations by Congress to enact greater security to the Nation's transportation infrastructures, namely The Improving America's Security Act of 200737 (which incorporates the Surface Transportation & Rail Security Act of 200738)

    will likely run aground by a veto by President Bush.39 As it currently stands, the Nation's rail system is the last major transportation

    infrastructure without comprehensive legislation addressing the vulnerability to a catastrophic terrorist attack.40

    If unsuccessful congressional action were not enough, the Bush Administration has made no material effort to reduce the risk to trains carrying hazardous chemicals and continues to defend the status quo.41

    As evidence of the current state of rail insecurity in the United States, Pittsburgh Tribune journalist Carl Prine...

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