The Washington Legal Foundation (WLF) is urging the U.S. Environmental Protection Agency (EPA) to reject California’s request for authorization under section 209 of the Clean Air Act to implement the California Air Resources Board’s (CARB’s) In-Use Locomotive Regulation. WLF joined Steven G. Bradbury, a Distinguished Fellow at The Heritage Foundation, who authored the comment.

The comment explains why EPA must deny California’s request. Despite its deceptive title as a regulation of locomotive “use,” CARB’s rule would require rail operators in California to buy or lease new locomotives or locomotive engines that meet CARB’s emissions limits. Under Supreme Court precedent, that is a regulation relating to emissions controls for new locomotives and engines that is barred under the plain language of section 209 of the Clean Air Act.

As the comment also shows, CARB’s rule is likewise barred by the ICC Termination Act because it would directly affect the management of railroads and would impose severe economic burdens on the business of railroads in contravention of Congress’s comprehensive system of federal regulation. And it is partially barred to the extent it trenches on the federal government’s exclusive responsibility for the safety of railroad equipment and operations. Although EPA is not the agency empowered to regulate the economics or safety of railroads, EPA must consider these preemption issues when reviewing CARB’s request.