OPINION:
It seemed like good politics that both of Ohio’s senators jumped into action after the train derailment and subsequent release of toxic smoke this past February in the village of East Palestine.
J.D. Vance, the Republican, was new to the Senate. He had an opportunity to look effective by getting legislation across the finish line early in his first term, bipartisan for co-sponsoring the legislation with a Democrat and attentive for addressing a measure of critical importance to his constituents and the nation at large.
Sherrod Brown, the Democrat, is up for reelection in 2024 and is considered one of the nation’s most vulnerable incumbents because of the sharp right turn in Ohio politics. The legislation, and his weekly visits back to East Palestine, gave him an opportunity to look bipartisan, effective and statesmanlike as well.
But the legislation that resulted from this partnership — the Railway Safety Act of 2023 — might be good politics but has not proved to be good policy. Instead, it has become a ploy by Mr. Brown to appease labor unions in advance of the next election.
Mr. Brown is building a formidable war chest: He collected $5 million in the most recent quarter and now has $8.7 million cash on hand. But no Democrat has carried Ohio for president since 2012, and no Democrat other than Mr. Brown currently holds statewide office.
The legislation would require that railroads have two crew members on all trains, a sop to unions to save jobs. Most trains now have two crew members, and there were three aboard the train that crashed in East Palestine.
Almost all trains in Europe run with a single crew member, and research has shown that larger crews are no safer.
It is this provision that Sen. John Thune, South Dakota Republican, referenced when he called the bill “a stalking horse for onerous regulatory mandates and union giveaways.”
The Washington Post says this isn’t even the most important part of the bill. The bill has a job-padding provision that would require all trains to go through a second inspection even though crews inspect trains before departure.
Trains could be required to go beyond their final destinations to reach the inspection site, then double back — an added expense, a scheduling nightmare and an increase in hazard — all to obtain an inspection for a trip they’d already completed.
Then there’s concern about hotbox detectors. These are devices that tell when ball bearings on train wheels overheat, which can lead to accidents. Mr. Brown acknowledged that in two recent accidents — East Palestine and one just months later in New Castle, Ohio — hotbox detectors were present but did not prevent the accidents.
But The Washington Post, in its infinite wisdom, has decided that one every 10 miles is the proper distribution.
The legislation calls for expanding oversight on hazardous materials, which might seem like a good idea considering the East Palestine accident. But the language of the bill gives wide latitude to the secretary of transportation to make rules to implement this provision, with no regard for cost-benefit analysis, even though the expense could be devastating and the number of hazmat accidents remains small.
Indeed, they are down 78% since 2000, and mainline railroad accidents are down 44%, thanks in large part to the kind of automation and use of technology the legislation designed to avert what happened in East Palestine seeks to undermine.
In 1980, the Staggers Rail Act reduced economic regulations on the railroad industry, and the industry responded by spending big on technology and safety to become more efficient.
The legislation passed out of the Senate Committee on Commerce, Science and Transportation on May 4. All 51 Democratic and Democrat-adjacent senators are expected to support it for final passage. Mr. Vance’s job is to deliver 10 Republican votes to get it over the 60-vote filibuster threshold, and he is believed to be at least two votes short.
Lawmakers on the House side are expected to take a more measured view, one that wouldn’t mandate crew sizes, for instance, and their legislation is even farther from having enough votes to pass.
A few lawmakers have said they could support the bill if amended to decrease the amount of regulatory power granted to the Biden administration, and Mr. Vance says it can pass as is. But Sen. Ted Cruz, Texas Republican, says it has no chance to pass in anything close to its current form.
It’s important to keep an eye on this. Sherrod Brown has a huge problem on his hands, and if the rail industry must take a hit to help his electoral chances, he’s fine with that. He says the railroads have a “history of putting profits over safety.”
With this legislation, Mr. Brown now has a history of putting his electoral prospects over safety.
• Brian McNicoll is a former director of communications at the House Oversight Committee who has worked at The Heritage Foundation, the Competitive Enterprise Institute and other policy groups. He lives in Reston, Virginia.
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