The Spokane City Council this week approved a November ballot measure asking voters whether oil and coal trains traveling through the city should be classified as a “civil infraction” under its municipal code. However, Measure 1 is likely to have no legal teeth to it, according to the Council’s own attorney, because it would probably be pre-empted by federal law.
Oil trains carrying Bakken crude oil from North Dakota to Northwest ports are a focus of increasing attention in the region, and promise significant economic benefits, according to business and labor supporters. The oil is refined on the West Coast and much of the resulting vehicle fuel marketed domestically.
Tesoro Savage’s proposed Vancouver Energy terminal on Port of Vancouver, Washington property would be one such destination. It is now under review by the State of Washington’s Energy Facility Siting and Evaluation Council (EFSEC). If approved, the terminal would handle up to 360,000 barrels of Bakken crude per day for transfer to West Coast refineries in Washington, Alaska and California.
To get fuel to West Coast ports increasingly requires that oil be transported by train through inland communities such as Spokane.
Spokane voters deciding Measure 1 will need to do “a lot of homework” according to Councilmember Karen Stratton. She reluctantly joined the 6-0 Council majority voting at the Monday July 25 meeting to approve Ordinance C35421 and put Measure 1 on the Nov. 8 ballot.
If passed, the measure would make it a Class One civil infraction “for any person or entity to ship oil or coal by rail through” any of four different downtown Spokane zones or within 2,000 feet of any school or hospital or the Spokane River.
‘Small Chance’ Measure Could Be Enforced
Enforcement is another matter. “I believe there will be significant legal challenges and cost to the city because we don’t have the authority to regulate,” said Stratton.
Stratton’s cautious statement was in line with the recommendation from Brian McClatchey, attorney and policy advisor to the Council.
In a ten-page opinion provided to Council members prior to the vote, McClatchey concluded “there is likely a very small chance that this proposed ordinance would survive a legal challenge” under the federal preemption provision of the Federal Railroad Safety Act (FRSA) of 1970. The Interstate Commerce Commission Termination Act of 1995 “also likely preempts the proposed ballot measure,” he wrote.
Two “narrow exceptions” under federal law could allow the measure to stick if approved, he wrote. McClatchey’s analysis to the council concluded neither was likely to apply.
In one instance, he wrote, that is because the federal government has already established a regulatory framework which allows shipment of oil by rail with accompanying safety measures.
In the other, there may be an opening for the measure to stick if an “essentially local hazard” can be determined to exist in relation to the subject matter.
Councilmember Breann Beggs, also an attorney, and other council members pointed to the sole source aquifer that provides Spokane’s drinking water as a uniquely local risk factor. The Rathdrum Prairie Aquifer runs from the Idaho panhandle under the Spokane Valley to the City of Spokane.
Citizens ‘Vote” Daily For Fuel
Among those testifying was David Boleneus on behalf of the Citizens Alliance for Property Rights (CAPR). He said that citizens in the state “voted” daily on whether to continue to ship oil by their continued demand for fuel and petroleum based products including wind turbine blades. Without demand there would be no shipments, he added.
Matthew Lebsack, chairman of the SMART/UTU (Sheet Metal Air Rail Transportation Division/United Transport Union) Local 105, testified that his employer, the Union Pacific Railroad, is on track to spend $3.5 billion in infrastructure and track investments.
Safety At Top Of Mind For Railroad Workers
As a locomotive engineer, Lebsack said he and his fellow union members work hard to make sure trains safely transport freight of all kinds through communities and don’t have mishaps. He characterized the measure as being pushed by out-of-state groups.
The ordinance accents council concerns about a potential mishap involving an oil train. However accidents are exceedingly rare nationally and in Washington state, and recently enacted state and federal rules provide an additional margin of safety.
‘Political Stunt’ Will Cost Taxpayers
Monika Wachowiak described the measure as “more of a political stunt. This is going to be taken to the courts and it will be thrown out. Taxpayers will have to pay. Where is it going to stop?”
Meanwhile, the economy’s appetite for oil-powered mobility continues to be robust, particularly in the western U.S.
Demand Strong For More Transportation Fuel
Brad Roach is Senior Director, Market Analysis, and a Senior Economist for Tesoro. In May 2016 testimony to EFSEC on the Vancouver Energy terminal, he said market demand has been for “progressively more transportation fuel.” That is evident in growing vehicle miles travelled (VMT) and an increasing concentration of motor vehicles in operation per 1,000 people, he said.
U.S. VMT is up three-fold since 1971, and since December 2014 has continued to steadily rise beyond its previous high in December 2007.
According to this table (Excel file) from Chapter Three of the Transportation Energy Data Book published by Oak Ridge National Laboratory, the number of U.S. vehicles per 1,000 people grew from 410.4 in 1960 to 808.6 by 2013. It peaked at 844.5 in 2007 but has been holding steady at or slightly above 808 per 1,000 for the last several years.
Demand for light vehicle fuel could level off somewhat as fuel efficiency increases, although that could well be offset by ongoing population growth, and longer work commutes as housing costs continue to rise in many major metro regions, including those on the West Coast.
Fuel efficiency in Washington state is currently just 20 miles per gallon (MPG), and while a 54 MPG average fleet-wide standard is to be implemented nationally by 2025, in practical effect that average is considered not likely to exceed 40 MPG.
All of which suggests that the demand for fuel and the necessity of getting its main component, oil, into the supply chain, is not likely to diminish any time soon.