ATHREE-JUDGE panel of the U.S. Court of Appeals is to hear oral arguments today from CSX Transportation challenging the District of Columbia's right to prohibit ultrahazardous material from a designated zone in the heart of Washington. CSX is appealing a ruling by U.S. District Judge Emmet G. Sullivan, who last week upheld an ordinance recently passed by the D.C. Council.
Judge Sullivan, ignoring objections by CSX Transportation and various federal agencies, sent an unmistakable message to the Bush administration in his April 18 ruling: Get out of court and get something done.
His reasoning was compellingly simple and direct: The federal government, despite 9/11 and the Madrid train attacks, has yet to develop a "consistent and comprehensive federal policy addressing the risks of terrorism on our interstate rail system."
Baltimore, Philadelphia and other cities along CSX's Interstate 95 rail corridor will be closely monitoring the corporation's legal response and the Bush administration's policy response. CSX's appeal has temporarily stayed implementation of the D.C. ban. Baltimore officials may decide to pass a similar ordinance to create an exclusion zone around the Inner Harbor, but won't have to if the federal government decides to make progress rather than fight it.
But the D.C. legal battle says a great deal about what is still wrong with homeland security. We remain far more at risk than we should be.
Washington is rightly focused on reducing its vulnerability to terrorism. About 11,400 hazmat rail cars passed through the district in 2003, many of them through Baltimore as well. The CSX line runs close to the Capitol, the Pentagon and other facilities that are vital to the continuity of government. The Department of Homeland Security estimates that a chlorine tank explosion in a generic urban area would cause 17,500 fatalities, 10,000 severe injuries and 100,000 hospitalizations.
Despite the significant terrorism risk to society and to the economy from what a federal regulation specifically terms "potential weapons of mass destruction," the Bush administration has adopted a voluntary security approach that is ineffective and potentially counterproductive.
First, the Bush administration has not established national rail security standards and has let the railroads decide what to do. Marginal physical security improvements have been made, but the status quo has largely prevailed. CSX won't say what rerouting has taken place, but considers all actions to be voluntary and temporary. Genuine security requires solutions that are comprehensive and permanent.
Second, the government and private sector have acted with excessive secrecy. Security assessments have been routinely withheld from city officials. Communication, coordination and trust have been lacking. Federal officials caution that information-sharing risks a security breach - a curious approach if they expect cities and states to bear significant security responsibilities and costs.
Third, rail security simply lacks priority and resources. This year, the Transportation Security Administration will spend about $4.5 billion on airline security and $150 million on rail security. Based on the proposed 2006 federal budget, the gap next year will grow even larger. The federal government is trying to do rail security on the cheap.
It is admittedly an immense task. Even under the best circumstances, vulnerabilities will remain. The nation's rail infrastructure is wide open, particularly commuter operations such as the MARC system. Nationally, there are thousands of stations and rail yards and hundreds of thousands of miles of track. It's impossible to secure every bridge, tunnel and commuter platform. But we can definitely do better:
The Bush administration must develop a credible national rail strategy - and quickly. Baltimore and other cities will fill the gap if the Bush administration fails to seize the initiative, but one integrated solution is the better policy approach.
The national rail strategy should require rerouting of hazardous materials away from metropolitan areas such as Washington and Baltimore where viable alternatives exist. Commercial interests should be protected, but not at the expense of our national security.
The federal government should create incentives that encourage chemical manufacturers and users to switch from toxic and dangerous materials to nonexplosive and nonlethal alternatives, easing the burden on our transportation system.
The private sector needs to view terrorism risk reduction as a core mission. When Congress considers extending the Terrorism Risk Insurance Act this year, it should also require all publicly traded companies to provide an annual assessment to the Securities and Exchange Commission regarding the potential terrorism risk associated with their operations and a general description of actions taken to mitigate or eliminate that risk. These assessments should be subject to independent certification.
Business as usual, Judge Sullivan made clear, is no longer sufficient. Whether CSX and the Bush administration heard him, there is little question that city officials in Baltimore were listening attentively.
P. J. Crowley is a senior fellow and director of national defense and homeland security at the Center for American Progress in Washington.