Outcome Of Water Pollution Trial Against BNSF Could Reach Beyond Lakes, Streams

Nov 7, 2016
Originally published on November 7, 2016 2:10 pm

Seven environmental groups want to prove coal being hauled by rail is polluting Washington’s waterways. If they are successful, the outcome could have huge implications for the way trains are regulated going forward.

The case is scheduled to go to trial in Seattle Monday.

Rick Eichstaedt is an attorney who does some of the legal work for Spokane Riverkeeper -- a program run by the Center for Justice that works to protect local waterways. The group is one of seven -- including the Sierra Club -- that have brought a case against Burlington Northern-Sante Fe Railway.

His office is a stone’s throw from the Spokane River to the north. To the south, there are raised railroad tracks that carry controversial coal and oil trains through the heart of the city.

“When I see a coal train, I’m concerned about the impacts it has one our environment,” Eichstaedt said.

A precedent-setting pollution case?

“Coal is mined in the Powder River Basin in Wyoming and as it travels west to depots, along the way some of this coal and coal dust falls into rivers,” Eichstaedt said. “And really this lawsuit is seeking a remedy that would force Burlington Northern to cover these trains so we don’t see coal and coal dust polluting our lakes and rivers anymore.”

Last month, U.S. District Court Judge John Coughenhour agreed with the environmental groups’ argument that BNSF’s trains are “point sources” of coal pollution under the federal Clean Water Act. But the judge also said the plaintiffs have to prove BNSF’s trains are dropping chunks of coal and releasing dust into 75 cited waterways in Washington, along with their tributaries.

BNSF declined to comment on tape “given ongoing litigation.” But in an email statement, Spokeswoman Courtney Wallace said the company is “confident in [its] legal arguments.”

Wallace also said years of testing show the company’s method of spraying surfactant over the coal once cars are loaded is “effectively controlling dust.”

Eichstaedt said the outcome of this case could be precedent setting.

“It may not be a legal precedent per se, but I think it would set a precedent for other communities who are trying to think creatively on how to deal with coal and oil trains going through their community,” he said.

“Thousands of people would die”

That’s exactly why Spokane City Councilman Breean Beggs said he’ll be watching the case closely. He wants to keep coal and oil trains from traveling straight through the heart of Washington’s second largest city.

“The danger to Spokane of an oil train exploding would be so horrendous,” Beggs said. “Thousands of people would die. Estimated at close to $1 billion in property damage.”

Beggs, also an attorney, relied on the Federal Railway Safety Act to pen the language for a proposed ballot initiative that would impose a civil infraction on any person or entity that ships uncontained coal and a certain kind of oil by rail through the city or within 2,000 feet of a school, hospital, or the Spokane River, which also runs through the heart of town.

But according to a non-binding legal review, the initiative would likely be preempted by federal law -- specifically, the Intrastate Commerce Commission Termination Act.

BNSF said in its defense that act also preempts the federal Clean Water Act. But, according to the Act, a conflict with any other federal law has to be resolved in court.

“So, Congress passes different laws and sometimes they might contradict each other,” Beggs said. “And so the question always is which law prevails?”

Beggs believes if the judge rules in favor of the Clean Water Act, it could mean Spokane’s proposal could hold up in court too.

One solution in the case against BNSF would be to cover the trains to keep coal, in all its forms, from entering Washington’s waterways. The outcome might also bring some clarity to who might be able to regulate those trains in the future.

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