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Report: SCOTUS Passes on Ohio Grade Crossing Law Dispute

The case is Ohio, Petitioner v. CSX Transportation Inc., case number 22-459, in the Supreme Court of the United States. CSX is represented by Andrew E. Tauber and Brandon Duke of Winston & Strawn LLP and Terrance K. Davis and Nicholas T. Stack of Shumaker Loop & Kendrick LLP. Ohio is represented by Benjamin M. Flowers and Zachery P. Keller of the Ohio Office of the Solicitor General and Union County Prosecuting Attorney David W. Phillips.

“This legal challenge came about after Ohio hit CSX with charges of violating the state law five times in Union County in 2018, and CSX promptly fought to have the charges dismissed,” Chiem wrote. “CSX has argued in court documents that ‘Ohio’s suggestion that blocked crossings caused by stopped trains constitute a dire public safety crisis is simply wrong … The number of events supposedly attributable to blocked crossings is very low when compared to the large number of grade crossings in the country and the frequency with which they are used … And to the extent that any steps need to be taken to reduce the number and duration of blocked crossings, Congress, the Federal Railroad Administration and the railroads would be the appropriate parties to do so, and indeed, are already taking such steps … Lack of conflict, error and urgency aside, this case is a poor vehicle for addressing the questions presented.’”

SCOTUS “denied Ohio’s petition for certiorari seeking to dismantle an August 2022 ruling from the Ohio Supreme Court siding with [CSX],” Chiem wrote. “The dispute concerned whether states can fill the gaps in federal regulation addressing how long a train may occupy a crossing. As is customary, the justices did not detail their reasoning for denying the petition. Ohio had maintained in court documents that the case was exceptionally important, ‘both because blocked grade crossings threaten public safety and because the lower court consensus has the effect of preempting many different laws in many different states.’”

The Ohio Supreme Court “had different takes on how federal preemption applied to the state’s anti-blocking statute, known as R.C. 5589.21, but they ultimately concluded the state law regulated the movement of railroad equipment and therefore interfered with federal regulations governing railroad switching, operations and routes,” Law360’s Chiem noted. “But that decision was ‘fractured,’ Ohio said in its November 2022 certiorari petition* and demonstrated how courts have “struggled to find a consensus rationale for displacing the states’ traditional authority over grade crossings. R.C. 5589.21 makes it a first-degree misdemeanor to block a railroad crossing with a stopped train for more than five minutes.”

The Ohio Supreme Court ruled that the Marysville, Ohio Municipal Court properly dismissed five charges against CSX. Justice Sharon L. Kennedy (now Chief Justice) wrote the lead opinion, stating that “regulation of railroad transportation is a matter of federal law, and the federal government alone has the power to address the threat to public safety caused by blocked crossings.” Chief Justice Maureen O’Connor and Justices R. Patrick DeWine (son of Ohio Governor Mike DeWine) and Patrick F. Fischer concurred with Kennedy. Justice Melody Stewart concurred in judgment only. In a dissenting opinion, Justices Jennifer Brunner Michael P. Donnelly dissented.

Ohio took issue with the state Supreme Court’s finding that its anti-blocking statute was preempted by the Interstate Commerce Commission Termination Act (ICCTA) of 1995, which created the Surface Transportation Board, and which has “exclusive jurisdiction over railroad rates, service disputes, mergers and other non-safety rail issues,” Chiem wrote. “The Ohio justices had also held that the Federal Railroad Safety Act—which includes a limited exception allowing the U.S. Transportation Secretary and the states to regulate certain aspects of railroad safety—still did not provide a safe harbor for Ohio to enforce its law. Ohio countered that the FRSA leaves room for state regulation. R.C. 5589.21 is a public safety measure meant to ensure the unhindered flow of emergency responders across railroad crossings, Ohio argued.”

Law360 noted that Ohio “found allies in 18 other states that filed an amicus brief** saying that state police powers and public safety are on the line in this case. They said state anti-blocking laws ‘deter railroad carelessness, ensuring local emergency services, such as firefighters and rescue squads, can quickly respond … Critically, no federal statute or regulation addresses blocked crossings, so without state and local intervention, railroads often become roadblocks to life-saving emergency care — a very real, widespread problem.’”

The amicus brief stated that between December 2019 and September 2021, the FRA received 25,374 reports of blocked crossings and 18,801 incidents at 5,773 crossings, but conducted only 906 blocked-crossing investigations. Rail labor and labor attorneys also urge SCOTUS to hear the case.

David W. Phillips said Jan. 8 that Ohio and other states had asked the SCOTUS “to accept this case for review because blocked crossings are a serious safety issue,” Chiem wrote. “’“There are currently no federal statutes or regulations governing how long a train can block a crossing. With the state unable to regulate and the federal government not acting, Ohioans are left to the whim of the railroads,’ Phillips said. ‘Emergency responders’ access to individuals and hospitals is hindered by blocked crossings, individuals are tempted to climb through stopped trains, and drivers may take additional risks trying to beat the train to avoid long delays. This is not a speculative safety issue—citizens needing emergency care have died after ambulances came upon blocked crossings and were unable to reach their patient or to transport the patient to the hospital. The situation has become untenable. We will now turn to Congress to ameliorate this situation by restoring the state’s longstanding police power to regulate the length of time that stopped trains may block roadways,’”

CSX responded with a statement saying the Ohio Supreme Court “correctly found that the state’s anti-blocking statute is preempted by federal law. CSX has and will continue to work with our neighbors in the communities where we operate to minimize the time our trains occupy railroad crossings as we meet ongoing national supply chain demands and serve our customers throughout Ohio and our network.”

The Ohio Supreme Court decision “tracked with several other appellate court rulings that similarly found other state anti-blocking statutes were preempted by federal law,” Law360 noted. “The Tenth Circuit in January 2022 sided with BNSF Railway Co. by ruling Oklahoma could not enforce its Blocked Crossing Statute against railroads because it similarly ran afoul of the ICCTA. Enacted in 2019, Oklahoma’s Blocked Crossing Statute fines railroad operators for occupying grade, or street-level, crossings for more than 10 minutes … Oklahoma petitioned the [SCOTUS] to consider the case, but the high court in 2022 declined to do so.”

*Petition for certiorari refers to a petition that asks an appellate court to grant a writ of certiorari. This type of petition usually argues that a lower court has incorrectly decided an important question of law, and that the mistake should be fixed to prevent confusion in similar cases. Parties who are not satisfied with the decision of a lower court must petition the U.S. Supreme Court to hear their case. The primary means to petition the court for review is to ask it to grant a writ of certiorari. This is a request that the SCOTUS order a lower court to send up the record of the case for review. SCOTUS usually is not under any obligation to hear these cases, and it usually only does so if the case could have national significance, might harmonize conflicting decisions in the federal Circuit courts, and/or could have precedential value. Typically, SCOTUS hears cases that have been decided in either an appropriate U.S. Court of Appeals or the highest Court in a given state (if the state court decided a Constitutional issue). SCOTUS has its own set of rules. According to these rules, four of the nine Justices must vote to accept a case. Five of the nine Justices must vote to grant a stay. Under certain instances, one Justice may grant a stay pending review by the entire Court.