A federal appeals court on Friday appeared highly skeptical that the Trump administration had adequately weighed the safety and environmental risks of a rule authorizing rail transport of liquefied natural gas — even as judges questioned whether they should issue a decision yet on the suspended regulation.
During oral arguments Friday, two judges of the U.S. Court of Appeals for the District of Columbia Circuit expressed dismay about the potential danger of transporting the supercooled gas and questioned why the Pipeline and Hazardous Materials Safety Administration had opted not to complete a more rigorous National Environmental Policy Act review.
The PHMSA rule is temporarily blocked by the Biden administration, as it considers amending the Trump-era standards. The regulation is set to go into effect for the first time next summer, after a new president takes office.
That leaves an open question as to whether a new Harris administration would continue to pursue modifications to the rule on a similar timeline. A second Trump administration may abandon plans to alter its own rule altogether.
“This seems like an unprecedented amount of hazardous material being moved by rail,” said Judge Florence Pan.
The judge, a Biden appointee, referred to claims brought by 14 states and the District of Columbia that PHMSA’s environmental impact statement had not grappled with what would happen if a train carrying 50 to 100 tank cars derails.
While oil trains of that length are not unusual, challengers pointed out that trains that carry super-cooled ethylene — the closest substance to LNG — usually have just one to three cars.
Pan noted that one of the statements in the court record compared the effect of 22 tank cars carrying LNG igniting to a “Hiroshima bomb.” At least one permit application suggests allowing 80 cars.
“It seems there is this risk of cascading consequences,” she said. “It just seems extraordinarily dangerous.”
Judge Patricia Millett also grilled Justice Department attorney Rebecca Jaffe on what measures PHMSA had taken at the local level to ensure that rural — often volunteer — fire departments are prepared to handle a potential LNG train derailment.
Firefighters have to extinguish fires from the tank cars with foam, not water. Evacuations for derailment encompass a one-mile radius from the accident.
“Those are things you need to know,” said Millett, an Obama pick. “How are you supposed to respond to this in a timely manner?”
A question of timing
At the same time, the court appeared to wrestle with whether it could address its concerns with the rule just yet.
Senior Judge A. Raymond Randolph, who was overall the most skeptical of the case against PHMSA throughout oral arguments, questioned Jaffe on the status of potential changes the agency planned to make.
The Biden administration suspended the 2020 PHMSA LNG rule shortly after the president took office. The rule is on hold until June 2025.
Jaffe told the court that a proposal to modify the suspended rule would not be complete until next April, according to the federal government’s unified agenda.
“So there is no way you will have a final rule by June 2025,” said Randolph, a George H. W. Bush appointee.
Jaffe replied that the anticipated timeline had been shifted back multiple times.
Randolph and Millett asked Jaffe for an update from PHMSA of the timing of a new suspension of ruling or a notice of proposed rulemaking and to state if there is no plan for either a new suspension or rulemaking.
Enviros and tribes
While Millett and Pan questioned the quality of PHMSA’s risk analysis supporting the rule, they joined Randolph in challenging some of the claims made by environmental groups and the Puyallup Tribe of Indians in the consolidated case.
Millett and Randolph pushed back on environmental groups’ claims that they had lacked the opportunity to comment on a brand-new, thicker tank hull design for LNG cars adopted by the agency in the final rule. PHMSA changed the type of tank after receiving comments warning that the thickness of existing tankers the agency had proposed using was inadequate.
Environmental challengers claimed that the shift to a new tank design was not a logical next step for the agency to take, based on the comments it solicited.
“We didn’t know that potentially altering the tank car was on the table,” said Bradley Marshall, who represented the Center for Biological Diversity and other environmental groups.
Millett said she had “trouble understanding” how PHMSA hadn’t provided notice, and she warned of the broader implications if the court did side with environmental groups on that part of their argument.
“We worry about a world where it creates perverse incentives,” she said. “The whole point [of public comments] is for the agency to incorporate well-made suggestions.”
Aaron Riensche — a member of the firm Ogden Murphy Wallace, representing the Puyallup Tribe of Indians — similarly struggled to show that his client had been injured by the PHMSA rule.
Pan questioned whether recognizing standing for the tribe would mean that anyone who goes near a railroad track would have the power to sue PHMSA.
“That can’t be right, can it?” she asked.
Millett also appeared skeptical of arguments that PHMSA had not done enough to consult with the tribe, when a number of the agency’s emails to the tribe had remained unanswered.
“You can’t complain about the lack of robust exchange if you didn’t respond to their efforts to schedule a meeting,” Millett said. “It can’t be every single thing an agency does, they’re going to have to call every single Indian tribe in this country and say, ‘Would you like to consult?'”
