A joint legislative committee on Monday urged the state Transportation Department to withdraw a proposed rule requiring railroads operating in Kansas to have at least two crew members in the cab of the lead locomotive.
The rule, intended to promote rail safety in Kansas, ran into opposition from Republican lawmakers who argued that Gov. Laura Kelly’s administration was going around the Legislature to make policy into law.
The proposal was intended to keep the current practice of two crew members on a train with the advent of technology that could allow trains to run autonomously.
The proposed rule is part of a national debate over train crew sizes in a new era of technology that has pitted the railroads against labor unions over rail safety that is now playing out in court and at the national level.
Earlier this year, a bill backed by a bipartisan group of U.S. senators, including Roger Marshall of Kansas and Josh Hawley of Missouri, was introduced in Congress calling for new rail safety rules including two-person rail crews after a high-profile derailment in Ohio.
Lawmakers in at least a dozen states have debated rail-safety measures this year, including in Kansas where the state Senate passed a bill limiting the length of train sizes.
The bill was not acted on in the House but could be debated again next year, although its future could be decided if the U.S. Supreme Court takes up a train regulation case out of Ohio later this year.
The joint rules and regulations committee can’t stop the Kelly administration’s proposed train crew rule, although its vote sends a message to the rest of the Kansas Legislature about how it views the proposed regulation.
“I know there are some individuals that believe they are above the law,” said Republican state Sen. Caryn Tyson of Parker. “In this case, the process is being disregarded and blatantly trying to proceed.”
Tyson said she wasn’t targeting the governor nor her chief of staff, who made an unplanned appearance before the committee to explain the rule in the face of snowballing opposition from skeptical Republican legislators.
But Tyson and other lawmakers said they thought the administration was trying to make policy without going through the Legislature.
Some said they didn’t think the Transportation Department had thoroughly vetted the proposal before bringing it to the committee, sometimes growing irritated with transportation officials’ inability to answer questions.
Lawmakers questioned whether the state can implement the rule under federal law, although at least nine other states – California, Nevada, Washington, Arizona, Ohio, Illinois, Colorado, Wisconsin and West Virginia – already have two-person train crews on the books.
BNSF Railway told the committee that the regulations would be preempted by federal law and lead to litigation.
Just last week, the railroad industry sued to stop a new minimum crew-size requirement imposed in Ohio after a train derailment in East Palestine in February.
The Association of American Railroads argued that federal law prohibited Ohio from adopting statutes requiring any railroad in the state to impose a crew size.
The new rule enacted last March was part of a $13.5 billion state transportation plan that Republican Ohio Gov. Mike DeWine signed into law after the East Palestine wreck.
The law required two-person crews for freight trains and required that wayside detectors used to help spot problems be installed in shorter intervals.
Jason Pinder, general director of network development for Union Pacific Railroad, told lawmakers that the rule lacked any safety justification.
He said the rule would disrupt collective bargaining and hinder the rail industry’s ability to compete with “less climate-friendly transportation methods, while also impeding innovation and harming Kansas businesses.”
The railroads say technology and modern staffing models make freight railroads safer, more efficient and more productive.
Limiting railroad innovation would make it hard for railroads to invest in new safety technologies, adapt to changing customer needs and compete with commercial trucking, which is moving to autonomous operations, the industry has argued over the years.
The labor unions say technology doesn’t always work and the train crews are often the first to respond to an incident where a train might need to be cut in two to allow emergency vehicles through a crossing.
They say the technology can’t perform the functions of an onboard conductor, and it cannot provide the benefits of two people working together on a locomotive.
Working together, conductors and engineers can pull cars carrying hazardous material away from other cars that have already derailed in emergency situations, they say.
Lawmakers pressed supporters of the rule to explain how the difference between crew sizes makes a difference in safety and whether they contribute to derailments.
But Ty Dragoo, the Kansas state legislative director for transportation workers, said crew size matters when there’s a rail emergency.
“When trains derail, are we going to have people there to respond to the emergency that derailment has caused?” he asked.
“Many times, one of our primary responsibilities is when the local communities, the local agencies, the fire departments come up, they have no idea what they’re coming to,” Dragoo said, adding that the spilled chemicals could be more volatile than gasoline.
“We have to have people there to talk to the emergency responders. We have to have people there to get bodies away from the disaster.”
Republican Attorney General Kris Kobach supported the new rule proposed by the Kelly administration, although an earlier version put forward by the governor was halted by his predecessor, Derek Schmidt.
Tyson said Schmidt and Kobach looked at the rule differently.
Schmidt didn’t approve the rule – over the strenuous objections of the Kelly administration – because he believed it was preempted by federal law and the state did not have the statutory authority to impose the regulation.
The former attorney general relied partly on a 2018 state appeals court ruling that said the state could not regulate how long a train can block a railroad crossing because it’s preempted by federal law.
Kobach looked at the issue more narrowly, focusing on whether the Transportation Department could issue the rule.
“I think this can be well debated,” Tyson said. “I would hate to see it go any further.”
Tyson said she hoped the agency would pull the regulation until more documentation and evidence was available to justify the rule.
The Kelly administration said it is acting within the scope of the law, both in allowing the Department of Transportation to promulgate the regulation and within the framework of what would be allowed under federal law.
The governor’s administration has argued that the U.S. 9th Circuit Court of Appeals ruled in February 2021 that states could impose crew staffing levels for safety.
The court ruled that a 2019 Trump administration order requiring only one-person crews was arbitrary and did not “implicitly preempt state safety rules.”
President Joe Biden’s administration has started a new attempt at the federal level to impose a rule requiring a two-person train crew rules, an initiative backed by the governor.
Kelly submitted comments to the Federal Railroad Administration supporting its proposed rule for two-person train crews.
The governor told the FRA that she had pushed for a similar rule at the state level, saying she thought it was needed to preserve safe rail operations in the state.
Kelly said there had been 225 train derailments in Kansas since 2018, including two in June 2022 — one involving 25 cars carrying hazardous materials near Bonner Springs.
Kelly said in her letter that having two-person train crews can be the “difference between life and death” as local emergency crews race to the scene of a derailment.
The governor’s chief of staff, Will Lawrence, said the governor discussed the proposed rule with the top executives at BNSF and Union Pacific before pursuing it in 2020.
Lawrence said he only discussed with Kobach whether the Transportation Department had the authority to issue the regulation and not whether the rule would be allowed under federal law.
Lawrence said he believes there is no current preemption under federal law and that states can pursue the safety regulation.
He pointed out that last session, the state Senate passed a bill with a two-thirds majority that would limit train lengths.
“We certainly would welcome the Legislature, if it wanted to, to put this provision into statute,” he said. “But we certainly believe at this time, absent that, it is appropriate as a regulation and there’s full authority to do so.”
Republican state Sen. Kellie Warren of Leawood told Lawrence that the governor’s office doesn’t have the final say over what’s legal under federal law.
“It may be your sincerely held belief, it may be the governor’s as well, that the opinion that this isn’t preempted by federal law is not the final say so if it is or it isn’t,” she said.
The issue could ultimately be settled by the U.S. Supreme Court, which has been asked to decide whether states can limit the amount of time trains are allowed to block railroad crossings.
Before leaving office, Schmidt joined a friend-of-the-court brief along with other states supporting Ohio’s appeal of a lower-court ruling that struck down a state law limiting how long a train could block a railroad crossing.
