Municipal – Ordinance – Aesthetics – Rusty Railroad Bridge – Constitutional – Supremacy Clause – ICCTA

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City of Cayce v. Norfolk Southern Railway Co. (Lawyers Weekly No. 010-023-11, 8 pp.) (Jean Hoefer Toal, Ch.J.) Appealed from Lexington County Circuit Court. (William P. Keesley, J.) S.C. S. Ct. Click here for the full text of the opinion.

Holding: Bridges are expressly considered part of a railroad’s operations under the definitions set out in the Interstate Commerce Commission Termination Act (ICCTA). Enforcement of the appellant-city’s ordinance would require the removal of old (possibly lead) paint and repainting the bridge at a cost of around $250,000. The enforcement of the ordinance would have an effect on the respondent-railroad’s operations that would fall within the scope of the ICCTA.

We affirm the circuit court’s reversal of the municipal court’s finding that the railroad violated Cayce, S.C. Code § 28-251.

The railroad has a bridge crossing over U.S. Highway 321 in the appellant-city. The bridge was built in 1995.

The city asked the railroad to paint the bridge due to the rust and graffiti covering the structure. The railroad declined based on a lack of funds.

The city amended its municipal ordinance such that a privately owned structure extending over a public street or highway is considered a nuisance if its exterior finish is, inter alia, rusted. A municipal judge found the railroad in violation of the ordinance, and the railroad appealed. The circuit reversed, ruling that the ordinance was preempted by the ICCTA.

The ICCTA grants exclusive jurisdiction over almost all matters of rail regulation to the Surface Transportation Board (STB).

Considering the expansive definitions of “railroad” and “transportation” in 49 U.S.C. § 10102, when 49 U.S.C. § 10501(b) grants the STB exclusive jurisdiction over “railroads” and “transportation by rail carriers,” it includes the railroad’s bridges and any operations conducted thereupon for the purpose of transportation.

ICCTA preemption applies, even if there is no direct conflict with a specific regulation, if the ordinance interferes with the railroad’s ability to conduct its operations or otherwise unreasonably burdens interstate commerce. Direct conflict is only one circumstance under which state law is preempted by federal law.

State and local governments may retain certain police powers and may apply non-discriminatory regulation to protect the public health and safety, but under the ICCTA the actions or regulations of those governments may not have the effect of foreclosing or restricting the railroad’s ability to conduct its operation or otherwise unreasonably burden interstate commerce.

James Carter, the Chief Engineer of Bridges and Structures for the railroad, testified that the railroad does not paint bridges for cosmetic purposes, but that the railroad had offered to allow the city to do it, and the railroad would have donated the expense for its employees to provide flagging services, but the city had declined the offer. Carter said the city did not raise any structural concerns about the bridge.

Carter stated maintaining the structural integrity of the bridge and other structures was the railroad’s most important consideration, and that the railroad had to allocate its funds for safety issues rather than for aesthetic concerns. Carter said graffiti on the bridge did not have any impact on the bridge’s structural integrity or safety. Further, there had been no notation on the inspection report that the rust posed a safety hazard.

He stated many of older bridges are covered with lead paint, and any painting would require removal of the old lead paint in an environmentally safe manner. He estimated it could cost approximately $250,000 to paint the entire bridge, including the lead removal.

Carter opined that if the railroad were required to do that for all of its bridges in South Carolina, it would cost millions of dollars, and this would have an impact upon the railroad’s ability to devote its resources to safety-related projects. Carter stated it would be difficult to operate a system of over 20,000 miles of track if the regulations in each community were different, so a uniform set of regulations was “extremely important.”

The circuit court correctly determined the ICCTA preempts enforcement of the nuisance ordinance against the railroad. Bridges are expressly considered part of the railroad’s operations under the definitional section of the ICCTA, and the enforcement of the city’s ordinance against the railroad would have an effect on its railroad operations that falls within the scope of the ICCTA.

Further, although the aesthetic appearance of bridges is not specifically covered in the ICCTA, the challenged provision need not be in direct conflict with the ICCTA for preemption to apply.

The purpose of the ICCTA is to prevent the development of a patchwork of local and state regulations affecting the railroad industry, as the enactment of differing standards and requirements would inevitably be detrimental to the orderly functioning of the industry as a whole.

Where there are nearly 100,000 railroad bridges in the U.S., owned by over 600 different entities, the need for uniformity is readily apparent.

Affirmed.