STB signals broader protection for rail-served projects against state and local restrictions

The Surface Transportation Board is signaling that state and local restrictions on rail customers’ facilities may face greater scrutiny under federal law, issuing a sweeping policy statement that questions aspects of earlier agency decisions involving privately owned terminals and other rail-served projects. The statement, which becomes final Nov. 9, also lays out arguments for treating government or private efforts to take exclusive possession of railroad rights-of-way as categorically preempted — potentially avoiding a detailed inquiry into how each taking would affect train operations. The document essentially serves as a consolidation of existing law, and suggests potentially stronger federal protection for rail infrastructure and access to freight service, while stopping short of binding decisions or a blanket exemption from state and local oversight. “The Board is not making any binding determinations in this policy statement,” the agency says.