HomeMy WebLinkAboutCAP 2011-04-25 Item 2C - Resolution - Oppose Federal Preemption Relating to Railroads city of Tukwila
Jim Haggerton, Mayor
INFORMATIONAL MEMORANDUM
TO: Mayor Haggerton
Community Affairs and Parks Committee
FROM: Steve Lancaster
DATE: April 20, 2011
SUBJECT: Resolution Opposing Federal Preemption re: Railroads
ISSUE
BNSF Railway asserts that federal law preempts the City's authority to enforce its land use
regulations with regard to railroad activities. The attached draft Resolution would urge the U.S.
Congress to take steps to ensure local jurisdictions have reasonable control over such activities
(Attachment A).
BACKGROUND
BNSF operates an intermodal freight yard in the Allentown neighborhood of Tukwila. BNSF has
recently acquired adjacent property designated by Tukwila's Comprehensive Plan and Zoning
Code for Low Density Residential use. BNSF applied for a Comprehensive Plan amendment
and a rezone to designate the newly acquired property for manufacturing and industrial use.
Upon learning that the City Administration would recommend that the City Council deny this
request, BNSF withdrew its application and asserted that federal law preempts the City from
enforcing its land use and environmental regulations with regard to railroad activities (see
Attachment B).
DISCUSSION
As interpreted by the Ninth U.S. Circuit Court of Appeals, the Interstate Commerce Commission
Termination Act (ICCTA) grants to the Surface Transportation Board (STB) "exclusive
jurisdiction" over various railroad related construction projects, and states that the legal
remedies contained in the United States Code (40 U.S.C. 10501(b)) "are exclusive and preempt
the remedies provided under Federal or State Law" (City of Auburn v. United States
Government). The Court also noted that federal law provides that rail carriers are "exempt from
the antitrust laws and from all other laws, including state and municipal law, as necessary to let
that rail carrier hold, maintain, and operate property" (49 U.S.C. 11323 -25).
Whether it was the intent of Congress to completely preempt local land use and environmental
authority has been questioned in the past, but never definitively resolved. For example, the
U.S. Conference of Mayors in 1998 adopted a resolution opposing federal preemption of local
authority and requesting that the U.S. Congress enact clarifying legislation (Attachment C).
The attached draft City of Tukwila Resolution (Attachment A) would urge Congress to
1. Hold hearings on the existing federal law; and
2. Direct the Surface Transportation Board to investigate the power exercised by the
railroads over local environmental and land use planning authority, and take steps to
remedy the imbalance of power; and
3. Enact legislation clarifying that federal law does not preempt local law as it relates to the
expansion of rail yards in urbanized areas.
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INFORMATIONAL MEMO
Page 2
RECOMMENDATION
That the Community Affairs and Parks Committee recommend City Council review and adoption
of the proposed resolution opposing federal preemption of local land use authority related to
railroads and urging Congress to clarify its intent regarding local authority.
The Council is being asked to consider this item at the May 9, 2011 Committee of the Whole
meeting and subsequent May 16, 2011 Regular Meeting.
ATTACHMENTS
A. Draft Resolution of the City of Tukwila
B. Letter from BNSF dated March 21, 2011
C. Resolution of the 66 Annual Conference of Mayors opposing federal preemption
WA2011 Info Memos\BNSF Resolution Info Memo.doc
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Attachment A
DRAFT
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TUKWILA, WASHINGTON, OPPOSING FEDERAL PREEMPTION
OF LOCAL LAND USE AUTHORITY RELATED TO RAILROADS,
AND URGING THE UNITED STATES CONGRESS TO CLARIFY
ITS INTENT REGARDING LOCAL AUTHORITY.
WHEREAS, the City of Tukwila recognizes the important role played by intermodal
freight transport in the regional and national economies; and
WHEREAS, freight rail intermodal yard operations generate noise, vibration, dust,
air pollutants, heavy truck traffic, risk of explosion and hazardous substance release,
and other significant adverse environmental and land use impacts; and
WHEREAS, these adverse environmental and land use impacts negatively affect the
quality of life and economic value of established residential neighborhoods in Tukwila
and across the nation; and
WHEREAS, Tukwila's Comprehensive Plan, adopted in 1995 and reviewed
annually, includes as its top priority "to improve and sustain residential neighborhood
quality and livability and
WHEREAS, the City of Tukwila has relied on its Comprehensive Plan and invested
extensively in public facilities and infrastructure in the Allentown neighborhood in order
to preserve and enhance its residential quality and livability; and
WHEREAS, property owners have responded by investing in the construction of 65
new single family homes in the Allentown neighborhood since adoption of the City's
Comprehensive Plan; and
WHEREAS, the BNSF Railway Company (BNSF) has recently purchased land in the
Allentown neighborhood of Tukwila that is designated by Tukwila's Comprehensive Plan
and by Tukwila's Zoning Ordinance exclusively for Low Density Residential use; and
WHEREAS, BNSF has indicated its intention to expand its adjacent multimodal
freight yard facility and activities onto these newly acquired residential properties, and
has claimed a right to do so under the preemptive effect of federal law; and
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WHEREAS, such expansion of the BNSF multimodal rail yard into an established
residential neighborhood would violate Tukwila's Comprehensive Plan and Zoning
Ordinance, and would increase the negative effects of its current operation upon
residents and on residential property values; and
WHEREAS, heavy truck traffic associated with the existing BNSF operation causes
excessive wear and damage to residential streets and bridges, which wear and damage
will only be increased by the expansion of the multimodal rail yard; and
WHEREAS, the United States Court of Appeals, Ninth Circuit, has ruled in City of
Auburn v. U.S. Government that all state and local permitting laws and environmental
regulations are explicitly preempted by the Interstate Commerce Commission
Termination Act; and
WHEREAS, many of the federal laws concerning railroads in the United States are
derived from laws adopted in the 19th century and do not reflect the societal, land use
and environmental values and priorities of today; and
WHEREAS, the legislative history of the Interstate Commerce Commission
Termination Act indicates it was Congress' intent to preempt only economic regulation
of rail transportation, and to reserve for the states the essential police powers required
to protect the health and safety of citizens; and
WHEREAS, the U.S. Conference of Mayors has adopted a resolution opposing the
federal preemption of local authority related to railroads; and
WHEREAS, the City of Tukwila does not seek to interfere with interstate commerce,
but believes that railroads should be subject to the same federal, state and local laws
and regulations that other private businesses and transportation facilities must meet in
order to protect the public health, safety and welfare;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY RESOLVES AS FOLLOWS:
The City of Tukwila urges the United States Congress to
1 Hold hearings on existing federal law governing railroads; and
2. Direct the Surface Transportation Board to immediately open an investigation into
the inordinate power exercised by the railroads over local environmental and land
use planning laws and take immediate steps to remedy an imbalance of power
through regulatory action if possible; and
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3. Enact legislation clarifying that federal law does not preempt state and local
environmental and land use planning laws in terms of the expansion of rail yards in
urbanized areas when such expansion is inconsistent with locally adopted
Comprehensive Land Use Plans.
PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at
a Regular Meeting thereof this day of 2011.
ATTEST /AUTHENTICATED:
Christy O'Flaherty, CMC, City Clerk Allan Ekberg, Council President
APPROVED AS TO FORM BY:
Filed with the City Clerk:
Passed by the City Council:
Resolution Number:
Shelley M. Kerslake, City Attorney
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Attachment B
Richard P. Chamberlain BNSF Railway Company
s�
Senior Genera! Attorney P.O. Box 9610.39
RA /Z WA Y Fort Worth, TX 76161
2500 Lou Menk Drive, AOB-3
Fort Worth, TX 76131 -2828
(G 17) 352 -2308 Phone
(817) 352 -2398 Fax
richard.chaiiiberlain@bnsf.com
Via B -Mail and Fax
March 21, 2011
Mr. Steve Lancaster
City Manager
Tukwila City Ball
6200 Soutlicenter Blvd.
Tukwila, WA 981.88
Re: BNSF Comprehensive Plan and Zoning Mali Amendments
File Nos. L10 -073, LIM74, L10 -075 and Ll0 -076
Dear Mr. Lancaster:
1 am writing on behalf of BNSF to withdraw its request for the comprehensive plan and zoning map
amendments that the City has been considering and that are the subject of tonight's City Council .meeting.
Please re iiiove these items from the Council's agenda this evening.
BNSF remains interested in working with the City to identify landscaping and buffering measures that
may be taken in connection with our planned construction project, which measures BNSF would
voluntarily iniplenle.nt Without Nvaiving the preemptive effect of applicable federal law. BNSF's Project
representatives will contact the City in the near future to discuss this topic fiti
Thank you for your attention to this request,
Yours truly,
.BNSF RAILWAY COMPANY
A
Richard P. Chamberlain
Senior General Attorney
cc: City Clerk
Mr. Tack face, Director Community De.velopinent
Ms. Rebeca Fox, Senior Planner
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Resolutions Adopted at the 66th Annual Conference of Mayors I OPPOSING FEDERAL Page 1 of 1
Attachment C
mk-
y
TRANSPORTATION AND COMMUNICATIONS
OPPOSING FEDERAL PREEMPTION OF LOCAL AUTHORITY RELATED TO
RAILROADS
WHEREAS, freight rail operations in the United States are expanding through mergers,
increased intermodal freight transport, addition of new routes and new or expanded rail
yards, and longer and higher speed trains, as well as abandonment of some smaller
operations; and
WHEREAS, cities throughout the United States are adversely affected by these freight rail
operations; and
WHEREAS, many of the federal laws concerning railroads in the United States stem from
laws adopted in the 19th century and do not reflect the societal and land use or
environmental changes which have occurred since the time; and
WHEREAS, the U.S. Surface Transportation Board "STB in 1996 and 1997 issued
decisions (STB Finance Docket No. 33095 and No. 33200) upholding a national railroad
corporation's contention that the Interstate Commerce Commission Termination Act of
1995 "ICCTA preempts all local and state environmental review and requirements for
permitting and mitigation of railroad activities that normally would be applied by local and
state jurisdictions, thereby burdening local and state jurisdictions with the costs of
environmental mitigation while allowing private railroad companies to reap additional
profits from expanded freight rail services; and
WHEREAS, railroads have cited the STB decisions to avoid compliance with state and
federal environmental law and local permitting requirements; and
WHEREAS, local jurisdictions do not seek to interfere with interstate commerce, but
believe that railroads should be subject to the same federal, state and local environmental
laws under which interstate highways and airports must abide, said laws providing
opportunity for mitigation of negative impacts of new or enhanced facilities, operations, or
both,
NOW, THEREFORE, BE IT RESOLVED that The U.S. Conference of Mayors urges the
United States Congress to hold hearings on existing federal law governing railroads and
enact legislation clarifying that current federal law does not preempt state and local
environmental and land use planning laws.
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