March 9, 2023
By Greg Coleridge
The Norfolk Southern Corporation train derailment and subsequent hazardous chemical release into the air, water and land in and beyond East Palestine, Ohio are the inevitable result of multiple anti-democratic realities in the U.S. Many are interconnected and are the same for the roughly 1000 train derailments per year, most recently in Michigan.
Private ownership of railroads
Norfolk Southern Corporation's record earnings in 2022 led to huge salaries for its top managers and stock buybacks and dividend payouts benefiting speculators and investors. Necessary investments have not been made in technology upgrades and worker safety as the corporation prioritizes maximizing profits over public safety and sustainable business practices. "Since the North American private rail industry has shown itself incapable of doing the job, it is time for this invaluable transportation infrastructure - like the other transport modes - to be brought under public ownership," concludes the Railroad Workers United. Interstate highways are publicly owned. Railroads were under federal control during WWI. Railroads in many other nations are publicly owned and, therefore, publicly accountable.
No community rights
Local public officials have few legal tools to protect the health, safety and welfare of their residents - especially conditions in any way related to interstate commerce. Communities possess little authority to control material - including trash, chemicals, nuclear waste - coming into or even passing through their jurisdictions by trains or trucks if that material can be defined as "commerce." The Constitution's Commerce Clause (Article I, Section 8) gives power to Congress and the President to "regulate commerce"among the several states." While states have at least some ability under certain conditions to push back against "commercial material" in their states if they can redefine it as dangerous, localities have no rights. East Palestine officials weren't even notified the derailed Norfolk Southern train was carrying vinyl chloride, ethylhexyl acrylate and other highly toxic chemicals since federal law doesn't classify those chemicals as "high hazardous."
Lack of worker power
Strikes are powerful tactics of workers to exert leverage against management. It's different for railroad workers given the importance of railroads in the nation's commerce. Unions representing rail workers have been virtually unable to strike since passage of the Railway Labor Act in 1926, which gives the government, specifically the President and Congress, vast powers to force workers to accept alternative means of resolving disputes - including mediation, arbitration and a Presidentially-appointed panel to make a recommendation. Without the legitimate threat to strike, rail workers, including those of Norfolk Southern, lack the power to press for ending dangerous working conditions.
Corporate campaign contributions
Railroad corporations are major political donors/investors to federal and state political races. The industry has poured $85 million into federal candidate campaigns, political parties and outside spending groups since 2002 with Republicans historically being the preferred recipients until recent years. Norfolk Southern - along with BNSF, Union Pacific Corp. and CSX Corp. - are the major industry contributors/investors. Norfolk Southern's political investments have been $17 million since 1990. At the state level, Norfolk Southern has invested $98,000 into Ohio political races since 2018, with Gov. Mike DeWine (who at first didn't call for federal assistance following the E. Palestine disaster since he didn't see a problem) being the largest recipient. Another recipient, Rep. Bill Seitz, supports his home city of Cincinnati selling its publicly owned rail line to none other than Norfolk Southern. At the very least, political campaign contributions buy access to public officials; at worst, buys favors.
The railroad industry invested $24.6 million to employee 265 reported lobbyists to influence the federal government in 2022. Norfolk Southern's portion was $1.8 million. The combination of corporate campaign contributions and lobbying by Norfolk Southern and other railroads results in legislation and regulations favorable to the industry, harmful to workers and threatening to communities. Rail lobbyists and $6 million from the rail industry to GOP campaigns in 2017, backed by President Trump, were effective in reversing requirements that rail cars carrying hazardous flammable materials install modern electronic braking systems to replace Civil War-era systems. Lobbyists have pressed for fewer workers on trains, longer and heavier trains, and reduced fines for penalties - as well as against paid sick leave for workers and having to define trains carrying hazardous chemicals like the Norfolk Southern that derailed in East Palestine as "high hazard," which would increase additional safety requirements, costs and public notification. Lobbyists are already working to prevent "burdensome regulations" that, no doubt, include provisions of the proposed Rail Safety Act of 2023, supported by Democratic and Republican Senators in Ohio and Pennsylvania.
Supreme Court decisions
Courts have granted corporate entities with a long list of constitutional rights which were intended exclusively to human beings. This includes corporate entities having the "right" to contribute to political campaigns. This has permitted all corporations, including Norfolk Southern, to corrupt the political process favorable to their interests, such as the previously mentioned laws and regulations profitable for railroads, but harmful to persons without the means to spend large sums of money to have their voices heard, communities helped and environment protected. Supreme Court-granted corporate Fourth Amendment search and seizure rights prevent surprise inspections of corporate property intended to protect workers and communities.
Ineffective and/or captured regulatory agencies
Railroads were the first federal government regulated corporations with the creation of the Interstate Commerce Commission in 1887 in response to widespread public rage over railroad abuses and malpractices. The railroads preferred government regulation over direct public ownership, which was a growing public call over many natural monopolies. Railroad executives felt they could have influence over agencies through appointments of regulators and limiting the scope of their oversight, which has proven true. Public safety inspections are also limited by regulatory agency funding, which impacts technology needs and human inspectors. The Federal Railroad Administration, the major railroad regulatory agency, has only 400 inspectors to inspect the nation's rail system covering 140,000 miles. This has forced the FHA to increasingly allow railroad corporations to inspect their own trains, tracks and signals, an increasingly common practice across all regulatory agencies. The EPA recently announced that it's requiring Norfolk Southern to directly test for dioxins in East Palestine. Where's the public accountability when, in effect, an entity charged with a crime gets to be the prosecutor, judge and jury?
Criminalization of protest
The response by the state, supported by corporations, to public protests and organizing responding to corporate assaults has been to pass laws criminalizing such activities to punish and smear individuals who exercise their right to peaceful assembly. Forty-five states have considered 265 bills, 39 of which have already passed in 20 states since 2017. Penalties of felonies serve as a deterrent to individuals to attend public events where they might be arrested and plant the message that those who protest must be extremists. This mindset is reflected in the reaction by federal and Ohio "law enforcement" agencies to the recent visit of whistleblower Erin Brockovich to East Palestine. A report by the agencies "assesses that special interest extremist groups will continue to call for changes in governmental policy, which may lead to protests in/around East Palestine and/or at the Statehouse in Columbus." Clearly, even a public meeting that Brockovich was planning was deemed as dangerous.
The East Palestine tragedy, while dramatic and horrific in its hardships to those who live nearby, wildlife and the environment, is sadly merely a symptom of current political realities. Essential is fundamental systemic change to address not only all the above mentioned conditions, but also to structurally increase the power of people to have legitimate influence over decisions affecting their lives, communities and beyond.
Enacting the We the People Amendment, HJR48 that would abolish all corporate constitutional rights and political money defined as free speech, is urgent. But fundamental self-governance goes beyond the amendment. Independent people's movements led by individuals who've been historically treated unjustly is a prerequisite for how to get real democracy on track - for the very first time.
Authors Website: https://www.movetoamend.org/
Authors Bio: Greg Coleridge is Co-Director of Move to Amend.