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The Bipartisan Rail Safety Bill Is A Reasonable Response To East Palestine Crisis

Well-placed anger can create unintended consequences because adding new layers of government control can play right into Big Business’ hands.


The following is a transcript of my monologue on today’s edition of Counter Points.

Today the Senate is holding a hearing on railway safety as a bipartisan group of lawmakers pushes for a bill intended to prevent future derailments like the one in East Palestine, Ohio. To put it bluntly, you’d have to be an industry expert to thoroughly evaluate the merits of this legislation, which is sponsored by Republican Sens. J.D. Vance, Marco Rubio, and Josh Hawley, along with Democratic Sens. Sherrod Brown, John Fetterman, and Bob Casey. It’s deep in the weeds.

Such experts are few and far between in the news media and even in Congress. That’s where lobbyists and unions step in to fill those knowledge gaps. Who do we trust to learn from East Palestine and spare other communities the same fate?

No rail system will ever be 100 percent safe. Transportation of hazardous chemicals will never be without risk. We have to do both, so we have to accept some of that risk and accept we can never fully eliminate it.

The question, then, is whether the risk right now is too high. If so, what would bring it down?

The industry’s latest data finds that, “For all railroads, the derailment rate is down 31% since 2000, but despite that longer-term positive trend, it was up by 5% year-over-year.” A fact sheet being circulated by Ohio Republican Sen. J.D. Vance’s office contends, “Derailments in the United States are much more common than in other countries,” specifically citing numbers from the EU and Japan.

So while we aren’t in an urgent state of national emergency, there’s probably more we can do. Determining whether government regulations would harm or hurt those efforts becomes important here.

The fact sheet being circulated by Vance’s office makes reasonable arguments for each of the provisions in the bill and makes reasonable rebuttals to legitimate points of contention. You can read the full document here. Again, I’m not an industry expert, nor is Vance, nor are the editors of National Review who came out against the bill this week. 

But where the bill empowers the Department of Transportation, the measures appear very modest and within the realistic — if imperfect — scope of federal oversight. 

The bill’s two-person crew requirement is eminently reasonable for obvious reasons, be it mitigation in East Palestine or prevention in other cases. If, as National Review claims, this will stall a transition to safer, automated mechanisms, the industry is welcome to explain why it can’t also pay for those to ensure the interim period is properly staffed. (Maybe they could pause some stock buybacks?)

It’s true, as NR says, should the bill pass “the railroads would adjust their behavior to any new regulatory burden.” The magazine claims that could come at the cost of safety by pushing hazardous chemicals into trucks. But if the regulatory burden is reasonable, that’s not the fault of the government; it’s the fault of an industry being subsidized to the tune of billions for putting profit over people.

There’s a lot going on when it comes to the economics of America’s railroads. The right would correctly point out subsidies abound, distorting true market forces. The left would correctly point out the captive shipper problem that essentially gives companies monopoly power. (Vance himself has noted both of those problems.) Others might argue this is an industry that needs both subsidies and some form of monopolies in order to function at all.

Here’s where the rubber meets the road: In a report on the NTSB’s February findings that an overheated wheel bearing likely caused the derailment, NPR noted, “The spacing of hot-box detectors and the temperatures at which they trigger alarms are not currently regulated by federal law, officials say.”

Norfolk Southern and its crew appear to have followed all the regulations. So both the market and the government failed here.

Norfolk Southern has no incentive to get months of bad PR, and the government has no incentive to take a beating from the public. But if an industry we all agree has safety implications that demand some government oversight needs better oversight? If it’s cutting staff to maximize profits over safety? This isn’t a lemonade stand; it’s a subsidized industry that handles life-and-death situations on a daily basis across the entire country. Hot boxes and crew mandates aren’t going to kill its efficiency.

It boggles the mind that establishment Republicans trust the business executives who’ve spent years ratcheting up cultural tensions by devoting vast resources to stupid virtue signals, like Norfolk Southern or even SVB. At best, they’re surprisingly incompetent. And that’s at best. 

With PSR and the labor negotiations last fall, the industry has already shown an interest in profits over people and safety.  

Earlier this month, Republican Senator John Thune said of the bill, “We’ll take a look at what’s being proposed, but an immediate quick response heavy on regulation needs to be thoughtful and targeted.” 

Tragedies are often exploited by special interests. They abuse the emotions and anger of the public to ram through bad legislation, creating a false sense of catharsis. Tragedies also induce calls for action, for lawmakers to do something — anything — to help.

Again, this well-placed anger can create unintended consequences. Adding new layers of government control is sometimes easy because Big Business has the lobbying money to craft the regulation in their favor, especially over smaller competitors. (For more on that, I recommend Tim Carney’s book The Big Ripoff.)

But none of that means government can’t do better where oversight is actually warranted, where it actually has a duty to check Big Business. The Vance bill might not be perfect right now, even great bills aren’t perfect when they’re introduced. But Thune’s standard of “thoughtful and targeted” appears to be a much more accurate description in this case than claims otherwise.

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