Railway Safety Act Presents GOP Choice: Tired Dogma or the Common Good? | Opinion

The Railway Safety Act of 2023 is a potent signal of a sea-change in how conservatives in Washington are approaching their most basic task: governance for the common good.

The bill itself is bipartisan, sharply focused on the rules that govern the railway industry, and comes in response to a catastrophic accident in East Palestine, Ohio that clearly exposed the industry's inadequate safety precautions. It is not the kind of legislation that would typically attract spirited debate. But industry groups and their allies in the libertarian movement, accustomed to rallying Republicans in Congress around rote claims that regulation is always misguided, are reacting with vocal panic that their mindlessly anti-government mantras are no longer carrying the day.

Republican Senators J.D. Vance (R-OH), Marco Rubio (R-FL), and Josh Hawley (R-MO), alongside Democrats Sherrod Brown (D-OH), John Fetterman (D-PA), and Bob Casey (D-PA), introduced the Railway Safety Act (RSA) to make several common-sense updates to American railway law. The RSA requires increased use of wayside defect detectors, which automatically scan passing trains for wheel-bearing failure—the problem that caused the disaster in East Palestine. It requires crews of at least two people per train, codifying a two-man standard already widely accepted within the industry and forcing stragglers to update their practices. It updates precautions for trains carrying hazardous materials, ensuring those precautions apply to hazardous materials that were not previously covered.

As with any policy choice, there are trade-offs. In some cases, railways will face higher costs to comply with the new precautions—which explains why they don't independently choose to take them on, even if the public would benefit. If the railway industry already had a good safety record, or if the industry were teetering on the financial brink, perhaps opposition to accepting these trade-offs would be more understandable. But the U.S. railway industry's safety record is abysmal, with far more derailments per mile traveled than in Europe or Japan. And its profitability—higher than any other industry, by at least one measure—was adequate to support more than $200 billion in returns to shareholders over the past decade. In the wake of the horrific disaster in East Palestine, which has exposed an entire town of working-class Americans to toxic contamination and long-term economic peril, the co-sponsoring senators thought this trade-off was obvious.

What has followed from the dogmatic anti-government Right has been a textbook illustration of why its influence among conservatives is slipping so quickly. A letter organized by FreedomWorks and signed by the leaders of more than a dozen anti-government groups trotted out the usual tropes, warning of "gross inefficiencies," the granting of "unimaginable authority" to the government, and the ever-looming danger of "unintended consequences." The letter claims that if required to take these safety precautions, railway "companies would be forced to divert resources away from critical research and development," which is ludicrous on its face for an industry with such high profitability (and which also ignores that the bill directs meaningful funding to railway safety research).

In other words, the letter could have been written about any regulation about any industry, because the argument is not ultimately about railway safety. It is about defending an anti-governing ideological orthodoxy, empirical evidence be damned, and as a result is entirely unpersuasive. Nine days prior to the letter's reassurance that "despite the preventable accident in Ohio, U.S. railroads are safe overall," another Norfolk Southern derailment in Springfield, Ohio left 1,500 residents without power. Six days prior, a train and truck collided elsewhere, killing a conductor. And four days after the letter's release, a BSNF train derailed in Washington state, significantly contaminating both soil and groundwater. Last year alone, there were 1,164 derailments in the United States.

The editors of National Review trod much the same ground in their own condemnation of the RSA, deploying the same broad scare tactics. They also added the peculiar argument that, "It is in railroads' best interest that their trains stay on the tracks, a fact that is lost on some proponents of this bill decrying the 'free market' treatment that railroads have allegedly received." Presumably, all things equal, the railroads would indeed prefer that their trains stay on the tracks! But that is simply not the issue here. The issue, rather, is correcting the railway industry's cost-benefit analysis, which tolerates debilitating accidents when further safety investments would cost more than addressing the accidents will.

As with so many other industries, this is where public policy enters the equation. Railway companies bear only part of the cost, and endure little of the total harm, of a major derailment disaster. The industry's workers and the broader public bear the rest—often a far greater share, as the people of East Palestine tragically now know. The United States has a compelling interest in doing more to prevent train derailments than the railway industry would otherwise do of its own volition. Smart, common-sense regulation imposes the judgment of the public's representatives on corporations in order to ensure they approach safety as the public would want them to, and that they are held accountable when they fail to do so. That is the role of public policy. Conservative policymakers concerned with the common good understand that.

Perhaps FreedomWorks and the National Review editorial board agree with the railway industry that an East Palestine here and a Lac-Mégantic there (where a train crewed by a single engineer derailed, exploded, and killed 47 people) are just the price of doing business—tragedies, but not worth investing enough to prevent with such modest measures as expanded use of wayside default detectors or maintaining two crew members aboard at all times. If so, they should say so explicitly. But we should be glad that wiser conservative leaders in Congress disagree.

Chris Griswold the policy director of American Compass. He was formerly a senior policy advisor to the U.S. Senate Committee on Small Business and Entrepreneurship and legislative staff to Senator Marco Rubio (R-FL).

The views in this article are the writer's own.