Policy Statement on Jurisdiction and Preemption Under the ICC Termination Act

Issuing agencies

Abstract

The Surface Transportation Board (STB or Board) is issuing this policy statement on the scope of its jurisdiction over transportation by rail carriers and on preemption of conflicting state and federal laws under the ICC Termination Act of 1995 (ICCTA). The policy statement provides an overview of the Board's jurisdiction and preemption through a review of existing legal precedent, discussing many commonly occurring questions. The Board intends the policy statement to serve as a useful tool for the public to review, in one place, concise explanations from the Board about its jurisdiction and application of preemption, which the Board anticipates will reduce confusion and facilitate the efficient resolution of disputes.

Full Text

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<title>Federal Register, Volume 91 Issue 215 (Monday, November 9, 2026)</title>
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[Federal Register Volume 91, Number 215 (Monday, November 9, 2026)]
[Notices]
[Pages 70956-70978]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-22811]


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SURFACE TRANSPORTATION BOARD

[Docket No. EP 791]


Policy Statement on Jurisdiction and Preemption Under the ICC 
Termination Act

AGENCY: Surface Transportation Board.

ACTION: Statement of Board Policy.

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SUMMARY: The Surface Transportation Board (STB or Board) is issuing 
this policy statement on the scope of its jurisdiction over 
transportation by rail carriers and on preemption of conflicting state 
and federal laws under the ICC Termination Act of 1995

[[Page 70957]]

(ICCTA). The policy statement provides an overview of the Board's 
jurisdiction and preemption through a review of existing legal 
precedent, discussing many commonly occurring questions. The Board 
intends the policy statement to serve as a useful tool for the public 
to review, in one place, concise explanations from the Board about its 
jurisdiction and application of preemption, which the Board anticipates 
will reduce confusion and facilitate the efficient resolution of 
disputes.

DATES: This policy statement will be final on November 9, 2026.

FOR FURTHER INFORMATION CONTACT: Amanda Gorski at (202) 915-8453. If 
you require accommodation under the Americans with Disabilities Act, 
please call (202) 245-0245.

SUPPLEMENTARY INFORMATION: Congress granted the Board exclusive 
jurisdiction over rail transportation and preempted conflicting federal 
or state laws in ICCTA. See generally 49 U.S.C. 10501. ICCTA embodies 
Congress's recognition of the need to regulate railroad operations at 
the federal level. Broadly, it provides that the Board has jurisdiction 
over rail transportation that is part of the interstate rail network. 
In ICCTA, Congress included an expansive preemption provision, the 
purpose of which is to ensure the free flow of interstate commerce, 
including by preventing patchwork regulation and eliminating unduly 
burdensome state laws, and by providing a nationally uniform, efficient 
national rail network to meet the needs of the public and national 
defense. On September 19, 2025, the Board received a letter from a 
coalition of six railroad and shipper organizations (Coalition) \1\ 
requesting that the Board issue guidance on the scope and application 
of federal preemption. Coalition Letter (Sept. 19, 2025), <a href="https://www.stb.gov/wp-content/uploads/Coalition-Letter-on-ICCTA-Preemption_FINAL.pdf">https://www.stb.gov/wp-content/uploads/Coalition-Letter-on-ICCTA-Preemption_FINAL.pdf</a>. Board members issued a joint response letter on 
September 24, 2025, noting the Coalition's views and stating that the 
Board was considering issuing a policy statement on preemption. Letter 
from Board Members Fuchs, Hedlund, & Schultz (Sept. 24, 2025), <a href="https://www.stb.gov/wp-content/uploads/Preemption-Letter-Final.pdf">https://www.stb.gov/wp-content/uploads/Preemption-Letter-Final.pdf</a>.
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    \1\ The Coalition consists of American Chemistry Council, 
American Short Line and Regional Railroad Association (ASLRRA), 
Association of American Railroads, Intermodal Association of North 
America, National Grain and Feed Association, and National 
Industrial Transportation League.
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    Over the 30 years since ICCTA's enactment, the Board and the courts 
have issued many decisions addressing the scope of the Board's 
jurisdiction over transportation by rail carriers and the preemptive 
effect of ICCTA when presented with potentially conflicting state, 
local, or federal regulations. While those decisions are generally 
consistent, they are numerous, have not always used the same 
terminology or analytical approaches, and may contain technical 
language unfamiliar to the general public. The Board therefore views it 
as important to set forth its considered, longstanding view of its 
jurisdiction over rail transportation and the application of ICCTA 
preemption. This policy statement is non-exhaustive but explores a 
significant number of questions that are frequently presented to the 
Board and to courts interpreting and applying ICCTA. Although any 
future case that comes before the Board (or a court) will be evaluated 
on the specific facts, circumstances, and laws presented in that case, 
the Board anticipates that the policy statement will serve the public 
by summarizing for stakeholders existing precedent. The policy 
statement will promote collaboration by reducing uncertainty about the 
scope of the Board's jurisdiction and ICCTA preemption and describing 
how the Board has analyzed frequently occurring questions. The Board 
thus aims to proactively prevent disputes regarding the Board's 
jurisdiction and ICCTA preemption, and when disputes do arise, for the 
policy statement to serve as a useful tool for the public and courts in 
resolving such disputes, potentially lowering litigation costs for 
carriers, shippers, and state and local governments. In turn, this 
action would, as appropriate, potentially support economic growth by 
better facilitating the avoidance or removal of undue or inappropriate 
impediments to rail transportation serving domestic manufacturing, 
agriculture, and energy facilities, among other critical aspects of the 
economy.
    By addressing key concepts and authorities in one consolidated, 
synthesized document, the policy statement provides benefits to 
stakeholders and the general public. The policy statement will lower 
costs by reducing the time and resources necessary to process and 
evaluate a breadth of topics relevant to the Board's jurisdiction and 
preemption. It will allow a wide array of users to quickly reference 
and read about their individual areas of interest. And it synthesizes 
precedents and provides guidance on the Board's jurisdiction and 
preemption--including processes for rail carrier licensing and the 
proper forum for adjudicating disputes--in a practical way that is not 
necessary, or possible, when resolving individual matters before the 
Board. By reducing these incremental costs, the policy statement is 
considered a deregulatory action under Executive Order 14192, 
Unleashing Prosperity Through Deregulation.

I. Executive Summary

    This policy statement explains how the Board and state and federal 
courts have interpreted the Board's authority over rail transportation 
and the preemption of state and local laws under ICCTA.\2\ Congress' 
framework, set forth in ICCTA, has been interpreted in ways that ensure 
the uniform federal regulation over interstate rail transportation, 
which is critical to the American economy. Individual cases must be 
decided based on the facts, circumstances, and applicable law in each 
case, and this policy statement supports that endeavor by setting forth 
the Board's general perspective on its jurisdiction and ICCTA 
preemption.
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    \2\ For demonstrative purposes, the Board cites both binding and 
non-binding precedents in this policy statement without necessarily 
adopting such precedents.
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    The policy statement begins with an explanation of the long-
recognized need for uniform rail regulation at the federal level, 
including under the Commerce Clause of the U.S. Constitution, the 
passage of the Interstate Commerce Act in 1887, and subsequent federal 
legislation, culminating in the passage of ICCTA and the creation of 
the Board in the 1990s. In enacting the statutory provision most 
relevant to preemption--49 U.S.C. 10501(b)--Congress included two key, 
interrelated components: (1) broad, exclusive jurisdiction over 
transportation by rail carriers (including certain related activity), 
and (2) that the remedies provided under ICCTA expressly preempt the 
remedies provided under federal and state law. The policy statement 
explains and analyzes numerous elements of the statute.
    Regarding jurisdiction, the Board discusses the definitions of 
``transportation'' and ``rail carrier'' (with attention to both freight 
and passenger rail carriers), and provides an explanation of three 
categories of track that the Board has recognized (common carrier, 
ancillary, and private) and how each is viewed for jurisdictional 
purposes. In analyzing the preemption provision, the policy statement 
identifies the broad scope of

[[Page 70958]]

``regulations'' that may be preempted--including those from both state 
and local authorities and those that may take the form of less-direct 
methods of regulation. The policy statement also explains that 
preemption extends beyond economic regulation and may apply when ICCTA 
does not provide an alternative remedy. The Board and courts may both 
be proper forums for disputes regarding the Board's jurisdiction and 
ICCTA preemption, with courts often referring preemption issues to the 
Board, consistent with the Board's expertise on such matters.
    The policy statement next explores the analytical preemption 
framework that the Board applies when considering state or local 
regulations. The policy statement explains that what courts often call 
express preemption is typically analyzed, under ICCTA, as 
``categorical'' preemption, and what is often called implied preemption 
is typically analyzed as ``as-applied'' preemption. The policy 
statement then explains that the categorical analysis is employed where 
state or local laws attempt to regulate rail transportation matters or 
when regulations (such as permitting) can be used to prevent rail 
transportation. It further explains that the ``as-applied'' analysis is 
used when a regulation may unreasonably burden or interfere with rail 
transportation or discriminate against rail carriers. The policy 
statement then analyzes and synthesizes precedents on complete takings 
of rail property by state or local governments, as well as the indirect 
regulation of rail transportation through regulation of shippers in 
ways that may limit common carrier rail service. The policy statement 
then addresses a number of commonly occurring preemption questions, 
summarizing the preemption analysis applied and the results of Board 
and court decisions. The non-exhaustive list of preemption fact 
patterns includes: (1) abandonment of rail property interests, (2) 
complete taking of rail carrier property, (3) utilities and pipelines 
within the right-of-way, (4) blocked crossings, (5) pedestrian or road 
crossings of rail lines, (6) locomotive idling, (7) environmental 
permitting, zoning ordinances, and land use laws, (8) noise, smoke, 
appearance, and other nuisance-related claims, (9) design, 
construction, or maintenance of rail infrastructure, (10) breach of 
contract, and (11) routing of traffic.
    The policy statement also discusses the analysis that applies in 
considering whether a federal law is preempted by ICCTA. The Board 
explains the harmonization analysis that applies to give effect to both 
federal laws where possible. The policy statement then discusses two 
illustrative federal law regimes that have been the subject of 
harmonization analysis in past decisions--federal rail safety laws 
(including the Federal Railroad Safety Act (FRSA)) and federal 
environmental laws (including the Clean Air Act (CAA) and Clean Water 
Act (CWA)).
    The Board is not making any binding determinations in this policy 
statement. Indeed, this policy statement is not exhaustive and should 
not be interpreted to predetermine the outcome of any particular 
dispute that may come before the agency, in which the Board would 
consider the specific facts, circumstances, and arguments presented. 
Instead, it compiles principles from certain existing cases to help 
parties understand how the Board and courts have approached frequently 
occurring questions concerning the Board's jurisdiction and ICCTA 
preemption. Where this policy statement identifies areas in which the 
Board provides a refinement to its prior analysis, such as complete 
takings and regulations directed at rail customers, the discussion 
below explains the basis for the refinement. The Board intends that 
this policy statement will serve as a reference document that can be 
used to promote growth in the rail industry and collaboration between 
rail carriers, shippers, and communities to proactively develop 
solutions to rail-related concerns.
    Nevertheless, railroads should not use ICCTA preemption as an 
excuse to be unresponsive to local public officials. Consistent with 
the rail transportation policy of the United States government (set 
forth at 49 U.S.C. 10101), railroads, as regulated entities, should 
seek to engage in good communication, information sharing and 
cooperation with the communities they serve and operate within. State 
and local governments may have legitimate interests in the development 
of, among other things, passenger rail and trails within rights of way 
where allowed, for the benefit of both rail carriers and local 
communities. Local government officials who believe that a railroad has 
been unresponsive may seek assistance from the Board's Office of Public 
Assistance, Governmental Affairs, and Compliance (OPAGAC) to facilitate 
improved communications.

II. Historically Recognized Need for Uniform Federal Rail Regulation

    The Surface Transportation Board was created on January 1, 1996 by 
ICCTA, Public Law 104-88, 109 Stat. 803 (1995), as the successor to the 
Interstate Commerce Commission (ICC) (1887-1995). The Board is the 
federal agency that is responsible for the economic regulation of 
various modes of surface transportation, primarily freight rail. Its 
responsibilities include oversight of railroad rates, practices, and 
service issues, as well as rail restructuring transactions including 
mergers, line sales, line construction, and line abandonments. The 
Board also has jurisdiction over certain passenger rail matters, the 
intercity bus industry, household goods carriers' tariffs, rate 
regulation of non-contiguous domestic water transportation (marine 
freight shipping involving the mainland United States, Hawaii, Alaska, 
Puerto Rico, and other U.S. territories and possessions), and pipeline 
carriers transporting commodities other than water, gas, or oil. While 
questions can arise regarding the scope of the Board's authority over 
each of these other transportation modes, this policy statement 
discusses rail transportation, which is the primary focus of the 
Board's statutory obligations.
    Congress and the courts long have recognized a need to uniformly 
regulate rail transportation at the federal level. As an inherently 
interstate mode of transportation, ``[r]ailroads have been subject to 
comprehensive federal regulation for [more than] a century.'' United 
Transp. Union v. Long Island R.R., 455 U.S. 678, 687 (1982); see also 
Interstate Commerce Act, ch. 104, 24 Stat. 379 (1887). Even before 
Congress enacted the Interstate Commerce Act in 1887, the Supreme Court 
had established that a state's regulation of railroad rates 
unconstitutionally interfered with interstate commerce. See Wabash, St. 
Louis & Pac. Ry. v. Illinois, 118 U.S. 557, 577 (1886). In 1887, 
Congress created the ICC to oversee a ``comprehensive regulatory regime 
over the rail industry.'' Paul Stephen Dempsey, The Rise & Fall of the 
Interstate Com. Comm'n, 95 Marq. L. Rev. 1151, 1161 (2012); see also 
Interstate Commerce Act Sec. 11, 24 Stat. 383. And since that time, the 
Supreme Court has ``frequently invalidated attempts by the States to 
impose on common carriers obligations that are plainly inconsistent 
with the plenary authority of the [ICC] or with congressional policy as 
reflected in the [Interstate Commerce Act].'' Chi. & NW Transp. Co. v. 
Kalo Brick & Tile Co., 450 U.S. 311, 318 (1981) (citing Tex. & Pac. Ry. 
v. Abilene Cotton Oil Co., 204 U.S. 426, 446 (1907); Transit Comm'n v. 
United States, 289 U.S. 121, 129 (1933)). Indeed, the Interstate 
Commerce Act is ``among the most pervasive and comprehensive federal 
regulatory

[[Page 70959]]

schemes.'' Chi. & NW Transp. Co., 450 U.S. at 318.
    In response to significant financial concerns experienced by the 
railroad industry in the 1970s, Congress substantially amended the 
Interstate Commerce Act by enacting ``two major pieces of legislation 
of a generally deregulatory thrust'': the Railroad Revitalization and 
Regulatory Reform Act of 1976, Public Law 94-210, and the Staggers Rail 
Act of 1980 (Staggers Act), Public Law 96-448. Balt. Gas & Elec. Co. v. 
United States, 817 F.2d 108, 112-13 (D.C. Cir. 1987). Together, these 
laws were intended to reduce unnecessary regulation and help restore 
the financial stability of the railroad industry.
    Congress carried that deregulatory thrust forward in 1995, when it 
enacted ICCTA as a means of ``extending exclusive Federal 
jurisdiction'' over rail transportation. H.R. Rep. No. 104-311, at 82, 
95 (1995), as reprinted in 1995 U.S.C.C.A.N. 793, 793-94, 807 (``There 
is a long history behind the termination of the [ICC] beginning with 
[the Staggers Act], which began the substantial economic deregulation 
of the surface transportation industry . . . .''). And through ICCTA, 
Congress further expanded federal uniformity by preempting certain 
areas of state authority over rail activity that previously existed. 
See Fla. E. Coast Ry. v. City of W. Palm Beach, 266 F.3d 1324, 1337-38 
(11th Cir. 2001) (explaining that ``[t]he pre-ICCTA statute expressly 
authorized regulation of certain railroad activities to be undertaken 
concurrently by the federal and state governments, while still other 
regulation would be the exclusive province of state law.''). At the 
same time, in further deregulating the rail industry, Congress did not 
intend for states and local governments to replace federal regulation 
with a patchwork of differing state and local rail regulations. See S. 
Rep. No. 104-176, at 6 (1995) (noting that nothing in ICCTA ``should be 
construed to authorize States to regulate railroads in areas where 
Federal regulation has been repealed . . . .'').
    Indeed, in ICCTA, Congress reaffirmed that ``the direct and 
complete pre-emption of State economic regulation of railroads'' was 
necessary to preserve ``the uniformity of Federal standards'' and 
prevent ``the balkanization and subversion of the Federal scheme of 
minimal regulation for this intrinsically interstate form of 
transportation.'' H.R. Rep. No. 104-311, at 95-96. Subjecting the 
interstate rail network to varying state regulations ``would greatly 
undermine the industry's ability to provide the `seamless' service that 
is essential to its shippers,'' and would weaken the rail industry's 
``efficiency and competitive viability.'' S. Rep. No. 104-176, at 6. In 
this way, preemption is consistent with the national rail 
transportation policy to promote a ``safe and efficient rail 
transportation system,'' 49 U.S.C. 10101(3), and ``ensure the 
development and continuation of a sound rail transportation system with 
effective competition among rail carriers and with other modes, to meet 
the needs of the public and the national defense,'' 49 U.S.C. 10101(4).

III. The Jurisdiction and Preemption Provisions of 49 U.S.C. 10501(b)

    The scope of the Board's exclusive jurisdiction over transportation 
by rail carriers is set forth in 49 U.S.C. 10501(b). The statute also 
contains an express preemption provision. Taken together, the statutory 
provisions governing jurisdiction and preemption establish the 
framework for the Board's analysis.
    The statute provides that the ``jurisdiction of the Board over (1) 
transportation by rail carriers, and the remedies provided in [Part A 
of Subtitle IV of Title 49] with respect to rates, classifications, 
rules (including car service, interchange, and other operating rules), 
practices, routes, services, and facilities of such carriers; and (2) 
the construction, acquisition, operation, abandonment, or 
discontinuance of spur, industrial, team, switching, or side tracks, or 
facilities, even if the tracks are located, or intended to be located, 
entirely in one State, is exclusive.'' 49 U.S.C. 10501(b). Furthermore, 
``[e]xcept as otherwise provided in [Part A of Subtitle IV of Title 
49], the remedies provided under this part with respect to regulation 
of rail transportation are exclusive and preempt the remedies provided 
under Federal or State law.'' Id.
    These provisions of section 10501 work together to ensure the free 
flow of interstate commerce by preventing a patchwork of different 
state and local regulations. E.g., Tenth Ave. Neighbors--Pet. for 
Declaratory Ord., FD 36654, slip op. at 3-4 (STB served May 8, 2024) 
(citing Tubbs--Pet. for Declaratory Ord., FD 35792, slip op. at 5 (STB 
served Oct. 31, 2014), aff'd sub nom. Tubbs v. STB, 812 F.3d 1141 (8th 
Cir. 2015)); see also Elam v. Kan. City S. Ry., 635 F.3d 796, 804 (5th 
Cir. 2011) (recognizing that a purpose of ICCTA was to create a 
``[f]ederal scheme of minimal regulation for this intrinsically 
interstate form of transportation''); Fayus Enters. v. BNSF Ry., 602 
F.3d 444, 452 (D.C. Cir. 2010) (ICCTA reflected a Congressional effort 
to prevent the ``balkanization'' of railroad-related laws); U.S. Env't 
Prot. Agency--Pet. for Declaratory Ord. (EPA Declaratory Ord.), FD 
35803, slip op. at 7 (STB served Dec. 30, 2014) (``The courts and the 
Board have emphasized the importance of national uniformity in laws 
governing rail transportation when interpreting [section] 10501(b).''). 
Since ICCTA was enacted, it has been observed that ``[i]t is difficult 
to imagine a broader statement of Congress' intent to preempt state 
regulatory authority over railroad operations.'' City of Auburn v. 
United States, 154 F.3d 1025, 1030 (9th Cir. 1998) (quoting CSX Transp. 
Inc. v. Ga. Pub. Serv. Comm'n, 944 F. Supp. 1573, 1581 (N.D. Ga. 
1996)).
    From this established statutory structure, disputes have arisen 
about both the jurisdictional and preemption aspects of ICCTA. Two 
preliminary jurisdictional questions have guided the analysis of 
whether regulation under local, state, or another federal law may be 
subject to ICCTA preemption. First, is the activity at issue 
``transportation by rail carrier'' as part of the interstate rail 
network or related to the construction, acquisition, operation, 
abandonment or discontinuance of spur, industrial, team, switching, or 
side tracks (collectively, commonly referred to as ``ancillary track'' 
or ``excepted track''), or facilities? And second, does the local, 
state, or federal action constitute regulation of such activity? If the 
answer to both questions is yes, then the Board and courts apply a 
preemption analysis to determine whether ICCTA preempts such 
regulation.\3\
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    \3\ As discussed below, the test applied varies depending on 
whether the regulation is based on state (or local) law or federal 
law, and the content of the regulation.
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    Though the steps are straightforward, the case-specific analysis 
required to determine preemption is often fact-intensive and detailed. 
Questions can arise in each stage of the inquiry: what activities 
constitute ``transportation''; is the actor a ``rail carrier,'' or 
operating on behalf of a rail carrier; are the railroad tracks or 
facilities part of the interstate rail network or a shipper's private 
facilities; what types of actions by local and state governments (or 
other actors) are considered ``regulation''; when does a state or local 
regulation ``unreasonably interfere'' with rail transportation; to what 
extent does preemption cover lawsuits for damages allegedly caused by 
rail carrier operations? The analysis below addresses these and other 
related questions and summarizes existing precedent on the Board's 
jurisdiction and ICCTA preemption.

[[Page 70960]]

A. Transportation by Rail Carrier or Related to Ancillary/Excepted 
Track or Facilities

    The threshold question in any preemption analysis is whether the 
activity at issue falls within the Board's jurisdiction. As specified, 
under 49 U.S.C. 10501(b), the Board has jurisdiction over 
``transportation by rail carriers.'' Whether a particular activity 
constitutes ``transportation by rail carrier'' is a case-by-case, fact-
specific determination. E.g., Town of Smithtown--Pet. for Declaratory 
Ord., FD 36575 (Sub-No. 1), slip op. at 3 (STB served Feb. 23, 2024) 
(citing Padgett v. STB, 804 F.3d 103, 108 (1st Cir. 2015); Town of 
Milford--Pet. for Declaratory Ord., FD 34444, slip op. at 2 (STB served 
Aug. 12, 2004)). The same is true for determining whether railroad 
tracks and facilities are subject to the Board's jurisdiction. See, 
e.g., Ne. La. Multimodal Dist.--Pet. for Declaratory Ord., FD 36809, 
slip op. at 5-6 (STB served Sept. 15, 2025) (describing factors 
considered in distinguishing between common carrier/mainline (10901) 
and ancillary/excepted (10906) track)); Tri-City R.R.--Pet. for 
Declaratory Ord., FD 36037, slip op. at 5 (STB served June 1, 2017) 
(describing hallmarks of private track).
    To determine whether a particular activity is subject to the 
Board's jurisdiction and, potentially, preemption under 49 U.S.C. 
10501, both the ``transportation'' and ``by rail carrier'' prongs of 
the standard must be satisfied. The Board has held that preemption does 
not apply to non-transportation activities by rail carriers. See, e.g., 
Grafton & Upton R.R.--Pet. for Declaratory Ord., FD 36696, slip op. at 
10 (STB served Nov. 15, 2023) (stating that ``the taking of the [rail 
carrier's property] via eminent domain would likely not be preempted if 
it is developed for purposes unrelated to rail transportation.''). 
Likewise, transportation activities by non-rail carriers generally are 
not preempted. See, e.g., Smithtown, FD 36575 (Sub-No. 1), slip op. at 
4-5 (holding that application of state and local regulations to 
transloading facility would not be preempted where the facility was 
owned by a non-carrier that was not affiliated with the carrier; not 
acting as the carrier's agent; and not subject to the carrier's 
exertion of control over operations).
1. Transportation
    The Board has jurisdiction over transportation in the United 
States, including, but not limited to,\4\ (1) between a place in a 
state and a place in another state, and (2) between a place in a state 
and another place in the same state, as long as that intrastate 
transportation is ``part of the interstate rail network.'' 49 U.S.C. 
10501(a)(2). Rail carriers that operate exclusively in one state--as 
many short line railroads \5\ often do--are thus generally subject to 
the Board's jurisdiction if they connect to the interstate rail 
network. See Great Redwood Trail Agency--Adverse Aban.--Mendocino Ry. 
in Mendocino Cnty., Cal., AB 1305 (Sub-No. 1), slip op. at 9-10 (STB 
served Feb. 19, 2026) (acknowledging that a rail carrier solely 
transporting shipments between points within the same state could be 
subject to the Board's jurisdiction). As used in ICCTA, 
``transportation'' includes not just the act of moving freight or 
passengers by rail but also broadly encompasses equipment, facilities, 
and services related to that movement. Specifically, transportation 
``includes a locomotive, car, vehicle, vessel, warehouse, wharf, pier, 
dock, yard, property, facility, instrumentality, or equipment of any 
kind related to the movement of passengers or property, or both, by 
rail, regardless of ownership or an agreement concerning use; and 
services related to that movement, including receipt, delivery, 
elevation, transfer in transit, refrigeration, icing, ventilation, 
storage, handling, and interchange of passengers and property.'' 49 
U.S.C. 10102(9). This list is non-exhaustive, as ``use of the word 
`include' indicates the list is illustrative rather than 
comprehensive.'' Del Grosso v. STB, 898 F.3d 139, 142 (1st Cir. 2018).
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    \4\ In full, section 10501(a)(2) provides: Jurisdiction under 
paragraph (1) applies only to transportation in the United States 
between a place in--
    (A) a State and a place in the same or another State as part of 
the interstate rail network;
    (B) a State and a place in a territory or possession of the 
United States;
    (C) a territory or possession of the United States and a place 
in another such territory or possession;
    (D) a territory or possession of the United States and another 
place in the same territory or possession;
    (E) the United States and another place in the United States 
through a foreign country; or
    (F) the United States and a place in a foreign country.
    \5\ Class II and III carriers are commonly referred to as 
``regional'' or ``short line'' railroads. In this policy statement, 
the Board uses the term ``short line railroads'' to refer to these 
rail carriers.
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    Proceedings before the Board and courts have made clear that the 
broad definition of ``transportation'' includes transloading and 
related operations when performed or operated by, or under the auspices 
of, a rail carrier. See, e.g., Smithtown, FD 36575 (Sub-No. 1), slip 
op. at 4-5 (stating that ``the Board's jurisdiction extends to rail-
related activities that take place at transload facilities if the 
activities are offered by a rail carrier, either directly or through 
its agent, or if a rail carrier exerts control over a third-party's 
operations''). Additionally, conducting activities such as making 
repairs to rail equipment and the construction and operation of 
excepted track constitute ``transportation'' because they involve 
facilities, instrumentalities, and equipment related to the movement of 
property (tracks and rail equipment) and services related to that 
movement (repairs and operation of tracks and rail equipment). See 
Grafton & Upton, FD 36696, slip op. at 10-11.
    Though expansive, the definition of ``transportation'' has its 
limits. Emerson v. Kan. City S. Ry., 503 F.3d 1126, 1129 (10th Cir. 
2007); see also Del Grosso v. STB, 804 F.3d 110, 119 (1st Cir. 2015) 
(stating that courts and the Board have rejected interpretations of 
``transportation'' that extend beyond activities relating to the 
movement of ``passengers or property'' by rail). As the courts have 
recognized, ``regulation of activities that occur before or after 
`transportation' and are incidental to such transportation may not be 
preempted.'' Delaware v. STB, 859 F.3d 16, 21-22 (D.C. Cir. 2017); see 
also Emerson, 503 F.3d at 1130-32 (holding that a railroad's disposal 
of railway ties into a wastewater drainage ditch adjacent to its tracks 
was not ``transportation,'' and thus state tort claims related to the 
disposal were not preempted).
    As one example, ``manufacturing and commercial transactions that 
occur on property owned by a railroad that are not part of or integral 
to the provision of rail service are not embraced within the term 
`transportation.' '' Del Grosso, 898 F.3d at 142 (quoting New England 
Transrail, LLC--Constr., Aquis. & Operation Exemption--in Wilmington & 
Woburn, Mass. (New England Transrail), FD 34797, slip op. at 10 (STB 
served July 10, 2007)); see also Fla. E. Coast Ry., 266 F.3d at 1327, 
1336 (a third party's aggregate distribution business operating in a 
rail yard was not ``transportation''); New England Transrail, FD 34797, 
slip op. at 14-15 (shredding of construction debris at a transloading 
facility before loading the material onto railcars was not 
``transportation''); Town of Milford, FD 34444, slip op. at 1-2 
(cutting and welding steel in a rail yard after rail transportation had 
occurred but before the steel was loaded onto trucks was not 
``transportation'').

[[Page 70961]]

2. Rail Carrier
    Under ICCTA, a ``rail carrier,'' is defined as ``a person providing 
common carrier railroad transportation for compensation, but does not 
include street, suburban, or interurban electric railways not operated 
as part of the general system of rail transportation.'' 49 U.S.C. 
10102(5). The term ``railroad'' includes ``a bridge, car float, 
lighter, ferry, and intermodal equipment used by or in connection with 
a railroad; the road used by a rail carrier and owned by it or operated 
under an agreement; and a switch, spur, track, terminal, terminal 
facility, and a freight depot, yard, and ground, used or necessary for 
transportation.'' 49 U.S.C. 10102(6). The common carrier obligation 
requires that rail carriers ``providing transportation or service 
subject to the jurisdiction of the Board under [Part A of Subtitle IV 
of Title 49] shall provide the transportation or service on reasonable 
request.'' 49 U.S.C. 11101(a). Thus, as the Supreme Court has 
recognized, rail carriers are required to provide transportation ``to 
any person or commodity,'' and ``cannot decline to provide [such] 
transport based on the product or commodity to be carried.'' Seven 
Cnty. Infrastructure Coal. v. Eagle Cnty., 605 U.S. 168, 191 n.6 
(2025). This includes products ranging from crude oil, id., to 
hazardous substances, Riffin v. STB, 733 F.3d 340, 346-47 (D.C. Cir. 
2013), to agricultural products, construction materials, and retail 
goods.
    The Board and courts have also interpreted the term ``rail 
carrier'' broadly, such that activities do not necessarily need to be 
conducted directly by the rail carrier in order for preemption to 
apply. Rather, the transportation must be performed ``by, or under the 
auspices of, a rail carrier.'' Del Grosso--Pet. for Declaratory Ord., 
FD 35652, slip op. at 2 & n.4 (STB served July 31, 2017) (collecting 
cases); City of Alexandria--Pet. for Declaratory Ord., FD 35157, slip 
op. at 2 (STB served Feb. 17, 2009). The Board has stated that, for 
example, at transload facilities, ``the Board's jurisdiction extends to 
rail-related activities that take place at transload facilities if the 
activities are offered by a rail carrier, either directly or through 
its agent, or if a rail carrier exerts control over a third-party's 
operations.'' Smithtown, FD 36575 (Sub-No. 1), slip op. at 4. As 
discussed in more detail below, certain cases have held that indirect 
regulation that burdens common carrier rail service implicates 
preemption.
a. Freight Rail Carriers
    The Board has jurisdiction over freight rail carriers engaged in 
interstate transportation, as well as intrastate transportation that is 
``part of the interstate rail network.'' 49 U.S.C. 10501(a)(2). The 
Board classifies freight rail carriers into three categories based on 
annual operating revenues, with Class I carriers being the largest, 
Class II in the middle, and Class III the smallest. See 49 CFR 1201. 
Class II and III carriers are commonly referred to as short line 
railroads. Short line railroads frequently operate within the Board's 
jurisdiction because, even when they operate only within one state, 
they often connect with Class I carriers and serve as part of the 
interstate rail network by handling the first or last segment 
(sometimes referred to as ``first mile/last mile service'') as part of 
a longer journey.
    Whether a freight operator is considered a rail carrier within the 
Board's jurisdiction is not always immediately clear. The Board (as did 
the ICC before it) issues decisions authorizing transactions that, if 
consummated, confer rail carrier status. Typically, the Board-issued 
document is a decision approving the potential rail carrier's authority 
for construction,\6\ acquisition, and/or operation (under 49 U.S.C. 
10901 or 10502), often in the form of a notice of exemption in the case 
of acquisition and operation transactions (under 49 CFR 1150.31).\7\ 
Although these decisions are maintained in agency records, they may not 
be readily accessible, particularly when the agency's approval was 
issued decades ago. Moreover, the Board's licensing structure is 
permissive. Only when the entity consummates a Board-authorized 
acquisition or operation does it become a ``rail carrier'' under the 
Board's jurisdiction. See Mendocino Ry.--Pet. for Declaratory Ord., FD 
36868, slip op. at 3-4 (STB served Sept. 26, 2025) (citing Middletown & 
N.J. R.R.--Lease & Operation Exemption--Norfolk S. Ry., FD 35412, slip 
op. at 4-5 (STB served Mar. 27, 2013)). And once the transaction is 
consummated, no separate notice of consummation is required to be filed 
with the Board. At this time, the Board does not maintain a registry, 
list, or website of licensed rail carriers, nor does it provide a 
physical or digital license document.\8\
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    \6\ Construction authority, once consummated, confers on the 
constructing entity a common carrier obligation, even in cases where 
``fulfillment [of that obligation] may be undertaken by operating 
railroads under trackage rights, leases, or similar arrangements.'' 
Midwest Generation, LLC--Exemption from 49 U.S.C. 10901--for Constr. 
in Will Cnty., Ill., FD 34060 et al., slip op. at 7 n.15 (STB served 
Mar. 21, 2002) (quoting Big Stone-Grant Ind. Dev. & Transp., 
L.L.C.--Constr. Exemption--Ortonville, Minn. & Big Stone City, S.D., 
FD 32645, slip op at 2 (ICC served Sept. 26, 1995)).
    \7\ As recently explained by the ASLRRA in a proceeding before 
the Board, ``non-carrier companies often enter the rail 
transportation system, and become common carriers subject to [Board] 
jurisdiction, through the acquisition of either a part or of the 
entirety of a rail line segment that is currently within the 
jurisdiction of the Board or otherwise would be the entirety of the 
line of railroad to be operated by that soon-to-be carrier.'' ASLRRA 
Comment 6, July 7, 2025, Mendocino Ry.--Pet. for Declaratory Ord., 
FD 36868.
    \8\ Some of the Board's licensing provisions--for example, 49 
U.S.C. 10901 and 10902--refer to the Board's issuance of a 
``certificate'' authorizing the proposed activity. In practice, such 
certificates consist of a Board decision granting the authority or, 
in the case of class exemptions, a Board-issued notice of exemption 
served and published in the Federal Register.
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    Additionally, a rail carrier does not automatically lose its common 
carrier status by stopping its rail service over a line. By statute, 
Board authorization is needed to terminate the common carrier 
obligation generally through a line sale, abandonment, or 
discontinuance. See, e.g., Middletown, FD 35412, slip op. at 4; see 
also Strohmeyer--Acquis. & Operation Exemption--Valstir Indus. Track in 
Middlesex & Union Cntys., N.J., FD 35527, slip op. at 2 & n.5 (STB 
served Oct. 20, 2011) (discussing the mechanisms a railroad may employ 
to excuse itself, permanently or temporarily, from its common carrier 
obligations) (citing Pejepscot Indus. Park, Inc.--Pet. for Declaratory 
Ord., 6 S.T.B. 886, 898 (2003)). Therefore, regardless of how much time 
has passed since a shipper last requested common carrier service, a 
rail carrier remains within the Board's jurisdiction until the Board, 
in its sole authority, authorizes its removal and that authorization is 
consummated.
    When questions concerning a rail carrier's status cannot be 
resolved through the review of public decisions, parties often seek 
assistance from the Board.\9\ The Board's Rail Customer and Public 
Assistance (RCPA) program can assist in resolving disputes, explain the 
Board's jurisdiction and procedures, and informally answer questions 
based on the Staff's knowledge and experience.\10\ Additionally, the 
Board has discretionary authority under 5 U.S.C. 554(e) and 49 U.S.C. 
1321 to

[[Page 70962]]

issue a declaratory order to eliminate controversy or remove 
uncertainty. See, e.g., Bos. & Me. Corp. v. Town of Ayer, 330 F.3d 12, 
14 n.2 (1st Cir. 2003); Delegation of Auth.--Declaratory Ord. Procs., 5 
I.C.C.2d 675 (1989). For example, the Board recently received a request 
from a rail carrier to confirm its status as a common carrier subject 
to the Board's jurisdiction, which was disputed during legal challenges 
by local municipalities and state agencies. See Mendocino Ry., FD 
36868, slip op. at 1. The Board reviewed prior decisions related to the 
requesting rail carrier--including past Board decisions granting a 
common carrier obligation to the rail carrier's predecessor, and 
subsequently granting the rail carrier authority to purchase the line--
and determined that the rail carrier was a common carrier subject to 
the Board's jurisdiction and therefore, if applicable, entitled to the 
benefits of federal preemption for its transportation activities under 
49 U.S.C. 10501(b). See id. at 1-4.
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    \9\ The Board is aware that other agencies or organizations, 
such as the U.S. Railroad Retirement Board, at times also make their 
own determinations about whether an entity is a rail carrier. The 
Board does not address those circumstances here and focuses solely 
on the Board's (and courts') determinations of the Board's 
jurisdiction for purposes of regulation under ICCTA.
    \10\ Additional information about RCPA, including contact 
information, can be found on the Board's website.
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b. Passenger Rail Carriers
    The Board also has jurisdiction over certain passenger rail 
operations. While the Board generally has jurisdiction over 
``transportation''--including equipment or services related to the 
movement of passengers as well as property, see 49 U.S.C. 10102(9)--by 
a ``rail carrier,'' not all passenger rail operations fall within the 
Board's jurisdiction. The definition of ``rail carrier'' specifically 
excludes ``street, suburban, or interurban electric railways not 
operated as part of the general system of rail transportation.'' 49 
U.S.C. 10102(5). Additionally, except in limited circumstances,\11\ the 
Board ``does not have jurisdiction under this part over . . . public 
transportation provided by a local government authority.'' 49 U.S.C. 
10501(c)(2)(A). This exclusion generally applies to ``regular, 
continuing shared-ride surface transportation services that are open to 
the general public or open to a segment of the general public defined 
by age, disability, or low income,'' with certain exceptions, when 
provided by a local governmental authority.\12\ 49 U.S.C. 5302(15). 
Additionally, the National Railroad Passenger Corporation (Amtrak) is 
treated separately under ICCTA. Although Amtrak is part of the 
interstate rail network, Congress limited the Board's jurisdiction over 
Amtrak to specific statutory provisions, including to address directed 
service (49 U.S.C. 11123), equipment trusts (id. 11301), pooling (id. 
11322(a)), withholding taxes (id. 11502), and liability (id. 11706). 
See 49 U.S.C. 24301(c).\13\
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    \11\ These include the use of terminal facilities (49 U.S.C. 
11102) and switch connections/tracks (49 U.S.C. 11103) in limited 
circumstances. See 49 U.S.C. 10501(c)(3)(B).
    \12\ The term ``local governmental authority'' includes ``(A) a 
political subdivision of a State; (B) an authority of at least 1 
State or political subdivision of a State; (C) an Indian tribe; and 
(D) a public corporation, board, or commission established under the 
laws of a State.'' 49 U.S.C. 5302(11).
    \13\ The Board also has certain regulatory responsibilities 
relating to Amtrak under other statutes not relevant for purposes of 
this policy statement. The Board also notes that, under separate 
statutes, Amtrak itself may be able to invoke its own form of 
preemption in certain circumstances. See 49 U.S.C. 24902(j), 
24301(g).
---------------------------------------------------------------------------

    Whether a passenger rail service solely within one state is part of 
the interstate rail network is a fact-specific determination based on 
the totality of the circumstances. Tex. Cent. R.R. & Infrastructure, 
Inc.--Pet. for Exemption--Passenger Rail Line Between Dallas & Houston, 
Tex., FD 36025, slip op. at 7 (STB served July 16, 2020); Cal. High-
Speed Rail Auth.--Constr. Exemption--in Merced, Madera & Fresno Cntys., 
Cal., FD 35724, slip op. at 11-15 (STB served June 13, 2013). It has 
also long been the agency's position that it does not have jurisdiction 
over purely intrastate passenger service, even if that service is 
performed by a licensed rail carrier. See, e.g., Napa Valley Wine 
Train, Inc.--Pet. for Declaratory Ord., 7 I.C.C.2d 954, 969 (1991). 
However, questions can arise when an intrastate passenger line connects 
to the interstate rail network, as such service may indeed be subject 
to the Board's jurisdiction. See, e.g., Tex. Cent. R.R., FD 36025, slip 
op. at 12 (finding that a proposed intrastate passenger rail line would 
be subject to the Board's jurisdiction because it was connected to the 
interstate rail system via through-ticketing arrangements and transfer 
service). The Board examines multiple factors in determining whether a 
particular passenger service is under its jurisdiction, such as whether 
the proposed service has a through-ticketing arrangement or whether it 
shares a station with an interstate carrier, although no single factor 
is dispositive. See, e.g., id., slip op. at 7; Cal. High-Speed Rail 
Auth., FD 35724, slip op. at 11-15.
3. Classifications of Rail Track
    Whether an activity falls within the definition of ``transportation 
by rail carrier'' will sometimes depend, in whole or in part, on the 
legal status of the rail line or track on which service is being 
provided. Again, the Board recognizes three categories of track: common 
carrier (or mainline),\14\ ancillary (or excepted),\15\ and private. 
The first two (common carrier and ancillary) are subject to the Board's 
jurisdiction, whereas private track is not.
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    \14\ The Board and courts regularly refer to these lines as 
``mainline'' or ``main line'' track for purposes of the Board's 
jurisdiction under ICCTA, which is the focus of this policy 
statement. The Board is not herein equating, or taking any position 
on, these terms as they may pertain to FRA's definition of ``main 
line'' under 49 CFR 236.1003, or FRA's use of the term ``general 
railroad system of transportation'' as described in 49 CFR part 209, 
Appendix A.
    \15\ The term ``excepted track'' derives from 49 U.S.C. 10906, 
titled ``Exception''. The use of the term ``excepted track'' as it 
pertains to ICCTA is not the same as FRA's definition of ``excepted 
track'' under 49 CFR 213.4.
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a. Common Carrier/Mainline Rail Lines
    The Board has exclusive jurisdiction over rail lines over which a 
rail carrier provides ``common carrier'' service to shippers. 49 U.S.C. 
10501(a)-(b); id. 11101; see Allied Erecting & Dismantling Co. v. STB, 
835 F.3d 548, 550 (6th Cir. 2016). No one may build an extension to a 
common carrier rail line, build additional lines, provide 
transportation over an extended or additional line, or abandon a line 
without Board authorization. 49 U.S.C. 10901(a), 10903; see Allied 
Erecting & Dismantling Co., 835 F.3d at 550.\16\
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    \16\ When Board authorization is required for certain projects, 
the Board must consider, among other things, the potential 
environmental and historic impacts of the construction and operation 
of a proposed rail line pursuant to the National Environmental 
Policy Act of 1969, 42 U.S.C. 4321-4370m-11, Section 106 of the 
National Historic Preservation Act, 54 U.S.C. 300101 et seq., the 
Board's environmental rules at 49 CFR part 1105, and related 
environmental laws.
---------------------------------------------------------------------------

b. Ancillary/Excepted Tracks
    The Board often refers to spur, industrial, team, switching, or 
side tracks, or facilities interchangeably as ``ancillary'' or 
``excepted'' tracks. ``Ancillary'' because such tracks and facilities 
are used for loading cars, track switching, and other activities that 
are incidental, or ancillary, to the provision of common carrier 
service, see Nicholson v. ICC, 711 F.2d 365, 367-68 & n.11 (D.C. Cir. 
1983); ``excepted'' because under 49 U.S.C. 10906, the construction, 
acquisition, operation, abandonment, or discontinuance of such tracks 
and related facilities is excepted from the Board's licensing 
authority. Thus, while spur, industrial, team, switching, or side 
tracks, or facilities, are within the Board's exclusive jurisdiction, 
they can be added to or removed from the interstate rail network 
without authorization from the Board. See N.Y.C. Econ. Dev. Corp.--Pet. 
for Declaratory Ord., FD 36467, slip op. at 5 (STB served June 11, 
2021); Tri-City R.R., FD 36037, slip op.

[[Page 70963]]

at 4. Even though the Board does not license ancillary track (as it 
does common carrier rail lines), such track is under the Board's 
exclusive jurisdiction and therefore is subject to federal preemption. 
See 49 U.S.C. 10501(b)(2). There is no bright-line test to distinguish 
between common carrier rail lines and ancillary tracks. Instead, the 
Board considers various indicia when determining whether a track is 
excepted under section 10906, including a track's relationship to the 
rail system, intended use, physical characteristics, and history. See, 
e.g., Oakland Glob. Rail Enter.--Pet. for Declaratory Ord., FD 36168, 
slip op. at 8 & n.8 (STB served Mar. 15, 2019).\17\ A track segment 
that constitutes a carrier's entire rail system cannot be considered 
ancillary track (because it is not ``ancillary'' to other track of the 
carrier), and therefore is not excepted under 49 U.S.C. 10906. 
Effingham R.R.--Pet. for Declaratory Ord.--Constr. at Effingham, Ill., 
FD 33468, slip op. at 5 (STB served Sept. 18, 1998).
---------------------------------------------------------------------------

    \17\ Parties that are uncertain whether a particular track is 
considered a common carrier rail line or ancillary track (or private 
track) often request a determination from the Board. See, e.g., Ne. 
La. Multimodal Dist., FD 36809; N.Y.C. Econ. Dev. Corp., FD 36467.
---------------------------------------------------------------------------

c. Private Track
    Private track is track typically built and maintained by a shipper 
(or for a shipper at the shipper's expense), and operated by the 
shipper or its contractor to serve its own operations and move its own 
goods. E.g., B. Willis, C.P.A., Inc.--Pet. for Declaratory Ord., 6 
S.T.B. 280, 281 (2002), aff'd sub nom. B. Willis, C.P.A., Inc. v. STB, 
51 Fed. App'x 321 (D.C. Cir. 2002). Where the shipper does not hold out 
to provide common carrier railroad service over the line to other 
shippers for compensation, neither the construction of the track nor 
the operations require Board approval. See B. Willis, C.P.A., Inc., 6 
S.T.B. at 285; see also Devens Recycling Ctr.--Pet. for Declaratory 
Ord., FD 34952, slip op. at 3 (STB served Jan. 10, 2007) (finding no 
jurisdiction over operations conducted on private track used 
exclusively to serve the track owner pursuant to a contractual 
arrangement with the owner). When track is constructed and operated in 
a manner that does not constitute common carriage, the agency has held 
that it is not subject to the Board's jurisdiction. See B. Willis, 
C.P.A., Inc., 6 S.T.B. at 285. The agency has stated that private track 
need not serve only one shipper and can include private service to 
numerous shippers within a single location--such as an industrial 
park--as long as the carrier is not providing common carrier service. 
Cf. TGS Cedar Port R.R.--Operation Exemption--in Chambers Cnty., Tex., 
FD 36627, slip op. at 1 (STB served Apr. 1, 2024) (noting that carrier 
previously operated 1.28 miles of private track within an industrial 
park without needing Board authority until conversion to common carrier 
service). Because such track is not subject to the Board's 
jurisdiction, construction and removal of such track is not covered by 
federal preemption. However, as discussed in further detail below, the 
Board is providing in this policy statement clarification regarding 
instances where state or local regulation of construction of or 
operations over private track may be considered to interfere with 
``transportation by rail carrier'' and thus could be subject to 
preemption.

B. Regulation of Rail Transportation and the Preemption of Remedies

    ICCTA contains an express preemption provision, providing that 
``[e]xcept as otherwise provided in [Part A of Subtitle IV of Title 
49], the remedies provided under this part with respect to regulation 
of rail transportation are exclusive and preempt the remedies provided 
under Federal or State law.'' 49 U.S.C. 10501(b). The plain meaning of 
``regulation'' is ``managing or governing,'' Fla. E. Coast Ry., 266 
F.3d at 1331 (citing Black's Law Dictionary 1286 (6th ed. 1990)) 
(citation modified), or ``controlling by rule or restriction,'' Union 
Pac. R.R. v. Chi. Transit Auth., 647 F.3d 675, 679 n.2 (7th Cir. 2011). 
ICCTA thus bars states from ``exercising control . . . over rail 
transportation as it is defined in 49 U.S.C. 10102(9).'' Id. (citation 
modified).
    ICCTA's use of ``State'' encompasses both state and local law, and 
it is well established that ICCTA preempts local as well as state 
regulation. Padgett, 804 F.3d at 107 (citation modified). This can 
include, among other things, certain state or local building permits, 
zoning ordinances, and environmental and land use permitting 
requirements. See, e.g., Wash. & Idaho Ry.--Pet. for Declaratory Ord., 
FD 36017, slip op. at 4 (STB served Mar. 17, 2017) (noting that state 
or local permitting or preclearance requirements, including building 
permits, zoning ordinances, and environmental and land use permitting 
requirements may be subject to preemption).
    ``Regulation'' does not simply mean laws passed by a legislature or 
rules enacted by a regulatory agency, and can, in appropriate 
circumstances, include common-law tort claims that similarly regulate 
rail transportation and certain related activity. Legal actions 
asserting eminent domain, adverse possession, easements, and other 
property rights have, as appropriate, been deemed ``regulation'' for 
purposes of analyzing ICCTA preemption. See, e.g., Tri-City R.R.--Pet. 
for Declaratory Ord., FD 35915, slip op. at 7 (STB served Sept. 14, 
2016) (collecting cases); see also Edwards v. CSX Transp., Inc., 983 
F.3d 112, 121 (4th Cir. 2020) (holding that ``regulation'' need not 
``be by way of public rule''). Tort actions may also be considered 
``regulation'' for purposes of ICCTA in certain circumstances ``because 
damages awarded under state tort laws can manage or regulate a railroad 
as effectively as the application of any other type of state statute or 
regulation.'' Tubbs, FD 35792, slip op. at 4. Thus, ICCTA's 
``preemptive reach can encompass common-law tort actions, in addition 
to statutes and ordinances.'' Edwards, 983 F.3d at 121-22 (collecting 
cases) (recognizing that ICCTA's preemption clause ``in no way 
distinguishes between statutory prohibitions and common-law duties''). 
Indeed, the statute's ``all-encompassing language'' does not ``permit 
the federal statute to be circumvented by allowing liability to accrue 
under state common law.'' Ezell v. Kan. City S. Ry., 866 F.3d 294, 299-
300 (5th Cir. 2017). It has been noted that ``[o]f course, not all 
common-law claims against railroads are preempted.'' Edwards, 983 F.3d 
at 122. Rather, common law claims are subject to the same preemption 
analyses as are other forms of ``regulation,'' such as state and local 
laws.
    While ``the core of ICCTA preemption is `economic regulation,''' 
Fayus Enters., 602 F.3d at 451, such as state laws governing the 
setting of rates and rules and practices related to rail transportation 
or service, ``ICCTA `does not preempt only explicit economic 
regulation.''' Id. (quoting N.Y. Susquehanna & W. Ry. v. Jackson, 500 
F.3d 238, 252 (3d Cir. 2007)); accord City of Auburn, 154 F.3d at 1030. 
And as the Board has recognized, any such limitation would be 
``contrary to the statutory text and unworkable in practice.'' Friends 
of the Aquifer, 5 S.T.B. 880, 884 n.8 (2001). Additionally, given the 
broad language of section 10501(b)(2) (granting the Board exclusive 
jurisdiction over construction, acquisition, operation, abandonment, or 
discontinuance of rail lines), the distinction between ``economic'' and 
``environmental'' regulation begins to blur. See City of Auburn, 154 
F.3d at 1031. ``For if local authorities have the ability to impose 
`environmental'

[[Page 70964]]

permitting regulations on the railroad, such power will in fact amount 
to `economic regulation' if the carrier is prevented from constructing, 
acquiring, operating, abandoning, or discontinuing a line.'' City of 
Auburn, 154 F.3d at 1031.
    The remedies that the Board may impose are set forth throughout the 
Board's governing statute, covering issues such as competition and 
access (49 U.S.C. 11102), rates (id. 10702(1)), licensing (id. 10901-
10910), and the economic relationship between shippers and carriers 
(id. 10702(2)). Section 10501(b) expressly states that ``the remedies 
provided under [49 U.S.C. 10101-11908] with respect to regulation of 
rail transportation are exclusive and preempt the remedies provided 
under Federal or State law.'' And so ICCTA preemption may apply even 
though a remedy may not exist under the Interstate Commerce Act for all 
instances where a state or local law is preempted. 14500 Ltd. LLC--Pet. 
for Declaratory Ord., FD 35788, slip op. at 5 (STB served June 5, 2014) 
(``Although [section] 10501(b) states that `the remedies provided under 
this part with respect to rail transportation are exclusive,' that does 
not mean that a remedy must exist under the Interstate Commerce Act for 
all instances where a state or local law is preempted under [section] 
10501(b)''.); Norfolk S. Ry.--Pet. for Declaratory Ord., FD 35701, slip 
op. at 6 (STB served Nov. 4, 2013).
    A notable instance where the Board does not have regulatory 
authority (but still has jurisdiction) is with respect to ancillary or 
excepted track. As noted above, Congress provided the Board with 
exclusive jurisdiction over the ``construction, acquisition, operation, 
abandonment, or discontinuance of spur, industrial, team, switching, or 
side tracks,'' 49 U.S.C. 10501(b)(2), while simultaneously stating that 
``[t]he Board does not have authority'' over the licensing of these 
activities, 49 U.S.C. 10906. See also Pace v. CSX Transp., Inc., 613 
F.3d 1066, 1068-69 (11th Cir. 2010) (finding state law claims relating 
to side track preempted even though Board does not actively regulate 
such track); Port City Props. v. Union Pac. R.R., 518 F.3d 1186, 1188 
(10th Cir. 2008) (stating that Congress intended to remove Board 
authority over the construction, operation, and abandonment of side 
tracks ``while still preempting state jurisdiction over them''). 
Accordingly, even though the Board does not authorize construction or 
abandonment of ancillary track, state and local governments are 
prohibited from regulating such activities. See 49 U.S.C. 10906. For 
example, this means that states and localities are barred from 
requiring an environmental permit for construction of ancillary track, 
despite no environmental review being conducted by the Board.
    The principle applies to other ``transportation'' activities that 
the Board does not directly regulate. See Del Grosso, 804 F.3d at 114 
(``Whether or not the Board is exercising its regulatory authority over 
the transportation, state and local laws governing such transportation 
are generally preempted.''). ICCTA preemption can apply ``without 
regard to whether or not the Board actively regulates the particular 
activity involved.'' Tubbs, FD 35792, slip op. at 4 (holding that a 
state law damages claim alleging improper design, construction, and 
maintenance of a rail carrier's main line track was preempted even 
though the Board does not directly regulate these issues).\18\ For 
example, although the Board does not regulate how long carriers may 
idle locomotives, a state or local law seeking to impose its own 
regulation on how long locomotives may idle would nonetheless be 
preempted. See Pet. of Norfolk S. Ry. for Expedited Declaratory Ord., 
FD 35949, slip op. at 4-5 (STB served Feb. 25, 2016), aff'd sub nom. 
Delaware, 859 F.3d at 21-22.
---------------------------------------------------------------------------

    \18\ Although the Board's statute has a provision on ``rights 
and remedies of persons injured by rail carriers,'' 49 U.S.C. 11704, 
this provision ``only applies to claims for violations of the 
Interstate Commerce Act,'' and does not create a general cause of 
action. See City of N. Chi.--Pet. for Declaratory Ord., FD 36619, 
slip op. at 4 n.3 (STB served May 18, 2023); see also 14500 Ltd. 
LLC, FD 35788, slip op. at 5 (explaining that section 11704 and the 
Interstate Commerce Act do not address or provide any remedies for 
state law property issues).
---------------------------------------------------------------------------

    ICCTA preempts not only direct regulation but may also preempt 
indirect regulation that affects a rail carrier's ability to provide 
common carrier operations to its customers. See Smithtown, FD 36575 
(Sub-No. 1), slip op. at 4 n.7 (collecting cases); City of Alexandria, 
FD 35157, slip op. at 2 (holding that ICCTA preempted local regulation 
of trucks serving a transloading facility operated by rail carrier's 
contractor). Such laws conflict with Congress's purpose in codifying 
the common carrier obligation because a rail carrier's ability to 
provide service and a shipper's right to receive service on reasonable 
request are two sides of the same coin.

C. Proper Forum for Disputes Concerning Board Jurisdiction and ICCTA 
Preemption

    The Board's exclusive ``jurisdiction'' should not be confused with 
traditional subject-matter jurisdiction to hear and resolve a dispute. 
The Board's ``jurisdiction'' essentially confers a broad and exclusive 
``authority to regulate'' (except where specifically stated otherwise, 
e.g., ancillary track). But the Board does not have exclusive 
``subject-matter jurisdiction'' to resolve disputes about whether a 
particular activity is preempted. It is well-established that the Board 
and courts have concurrent jurisdiction to resolve preemption 
questions. E.g., Ne. La. Multimodal Dist., FD 36809, slip op. at 4; see 
also Adrian & Blissfield R.R. v. Vill. of Blissfield, 550 F.3d 533, 539 
n.4 (6th Cir. 2008). Actions implicating ICCTA preemption therefore may 
be originated either at the Board or in court.\19\ Because jurisdiction 
is concurrent, the Board often has exercised its discretion not to 
address questions that have already been litigated by the parties and 
decided by a court. See, e.g., City of N. Chi., FD 36619, slip op. at 4 
n.3 (declining to issue declaratory order where ``the preemption 
question posed by [the petition for declaratory order] has already been 
decided by the [referring] court'').
---------------------------------------------------------------------------

    \19\ The Board takes no position regarding whether a preemption 
related claim may be initiated originally in state or federal court, 
or whether a claim can be removed to federal court. As the Board has 
acknowledged, ``[t]he Board is not the proper forum for deciding the 
extent of a court's jurisdiction.'' Waneck--Pet. for Declaratory 
Ord., FD 36167, slip op. at 4 (STB served May 25, 2018) (citing 
Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000) (noting that 
the determination of a court's jurisdiction is exclusively for the 
court to decide)).
---------------------------------------------------------------------------

    In addition to resolving disputes filed directly with the Board, 
the Board generally accepts referrals from courts grappling with 
questions regarding the extent of the Board's jurisdiction and 
preemption under ICCTA. Courts have sought the Board's input in a 
variety of ways, including dismissing a judicial proceeding without 
prejudice while the Board resolves an issue, e.g., Tri-City R.R., FD 
35915, slip op. at 4 n.4; staying a judicial proceeding while the 
parties seek a determination from the Board, e.g., Tubbs, FD 35792, 
slip op. at 1; or referring a question to the Board for resolution, 
e.g., Grafton & Upton, FD 36696, slip op. at 5. And some courts have 
retained jurisdiction while referring a preemption determination to the 
Board, despite retaining concurrent jurisdiction to resolve the issue. 
See, e.g., Grafton & Upton, FD 36696, slip op. at 5. Particularly when 
the threshold question is whether the Board has jurisdiction at all--
such as where the parties dispute whether an entity qualifies as a 
``rail carrier'' under ICCTA, or whether a segment of track is excepted 
(jurisdictional) or private (non-jurisdictional), or whether a

[[Page 70965]]

jurisdictional track has been abandoned and therefore is no longer 
subject to the Board's jurisdiction as a matter of federal law--the 
Board's expertise and unique responsibility for ensuring uniform 
national rail standards may be utilized. Cf. In re Metro. Transp. 
Auth., 32 A.D.3d 943, 946 (N.Y. App. Div. 2006) (When ``questions exist 
with regard to whether the track at issue is a spur and, if so, whether 
its apparent nonuse is sufficient to result in an abandonment, . . . 
[s]uch matters are properly addressed to the [Board]''). For example, 
some courts have directed the parties, during litigation, to seek 
guidance from the Board on the jurisdictional status of track. See, 
e.g., Brookhaven Rail Terminal--Pet. for Declaratory Ord., FD 35819, 
slip op. at 4 (STB served Aug. 30, 2016) (determining Board's 
jurisdiction over track subject to litigation); Pinelawn Cemetery--Pet. 
for Declaratory Ord., FD 35468, slip op. at 8 (STB served Apr. 21, 
2015) (same).

IV. ICCTA Preemption Analysis for State and Local Laws

    There is a well-settled framework, grounded in Supreme Court 
precedent, that guides the analysis of whether a federal law preempts 
state (or local) law. In relevant part, federal preemption of state law 
can either be express or implied.\20\ Although courts (particularly the 
federal courts) regularly describe the Board's preemption framework 
using these established terms, the Board historically has not, electing 
instead to use the terms ``categorical'' and ``as-applied.'' The Board 
takes this opportunity to clarify where these concepts overlap: Express 
preemption is generally analyzed as ``categorical'' ICCTA 
preemption,\21\ and implied preemption is generally \22\ analyzed as 
``as-applied'' ICCTA preemption. As described in more detail below, 
``categorical'' preemption addresses state or local action that, by its 
nature, manages or governs rail transportation, whereas ``as-applied'' 
preemption addresses action that does so in its particular operation or 
effect. Each term is defined in more depth below.
---------------------------------------------------------------------------

    \20\ The Board recognizes that federal preemption analysis 
involves many nuances beyond whether preemption is express or 
implied. For example, implied preemption can be broken down into 
``field preemption'' and ``conflict preemption.'' See Arizona v. 
United States, 567 U.S. 387, 399 (2012). For purposes of this policy 
statement, the Board believes it is sufficient to analogize ``as-
applied'' preemption to implied preemption without further 
elaboration on whether field preemption, conflict preemption, or 
both are the basis for the analysis.
    \21\ Categorical preemption is also sometimes referred to as 
``per se'' or ``facial'' preemption. See, e.g., Soo Line R.R. v. 
City of St. Paul, 827 F. Supp. 2d 1017, 1020 (D. Minn. 2010); CSX 
Transp., Inc.--Pet. for Declaratory Ord., FD 34662, slip op. at 4-5 
(STB served May 3, 2005).
    \22\ It should be noted that at least one circuit court has 
determined that ``as-applied'' preemption is a form of express, 
rather than implied, preemption. See City of Ozark, v. Union Pac. 
R.R., 843 F.3d 1167, 1171 (8th Cir. 2016). Numerous other circuit 
court cases have interpreted the Board's ``as-applied'' analysis as 
a form of implied preemption. E.g., Edwards, 983 F.3d at 121; Ezell, 
866 F.3d at 299.
---------------------------------------------------------------------------

A. Constitutional Framework for Preemption Analysis

    Under our constitutional structure, the federal government is 
responsible for regulating interstate commerce. See King Cnty.--Pet. 
for Declaratory Ord., 1 S.T.B. 731, 735 (1996) (citing Supreme Court 
precedent and stating that ``under the Commerce and Supremacy Clauses 
of the United States Constitution, direct regulation of interstate 
commerce by the states is prohibited''); see also Mo. Pac. R.R. v. 
Stroud, 267 U.S. 404, 408 (1925) (``It is elementary and well settled 
that there can be no divided authority over interstate commerce, and 
that the acts of Congress on that subject are supreme and 
exclusive.''). Federal preemption flows from the United States 
Constitution's Supremacy Clause, which makes federal law ``the supreme 
Law of the Land.'' U.S. Const., art. VI, cl. 2. The Supremacy Clause 
empowers Congress to enact federal laws that supersede state law by 
means of an express provision in a federal statute or by implication. 
See id.; see also Arizona, 567 U.S. at 398-99. Congress can show 
preemptive intent either expressly through the statute's language or 
impliedly through its purpose and structure. Altria Grp., Inc. v. Good, 
555 U.S. 70, 76 (2008); Franks Inv. Co. v. Union Pac. R.R., 593 F.3d 
404, 407 (5th Cir. 2010) (en banc). Congress established a uniform 
federal regulatory framework governing the regulation of rail 
transportation through ICCTA, which both expressly and impliedly 
preempts state regulation. E.g., Edwards, 983 F.3d at 121 (recognizing 
that ICCTA's provisions ``produce both express and implied preemptive 
effects'').
    ICCTA contains an express preemption provision, stating that 
``[e]xcept as otherwise provided in [Part A of Subtitle IV of Title 
49], the remedies provided under this part with respect to regulation 
of rail transportation are exclusive and preempt the remedies provided 
under Federal or State law.'' 49 U.S.C. 10501(b). When a ``statute 
contains an express pre-emption clause, [courts] do not invoke any 
presumption against pre-emption,'' instead following the statute's 
``plain wording.'' See Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 
U.S. 115, 125 (2016) (citation modified); CSX Transp., Inc. v. 
Easterwood, 507 U.S. 658, 664 (1993); see also Arizona, 567 U.S. at 399 
(``There is no doubt that Congress may withdraw specified powers from 
the States by enacting a statute containing an express preemption 
provision.''). As relevant to interstate commerce, ``States are 
precluded from regulating conduct in a field that Congress, acting 
within its proper authority, has determined must be regulated by its 
exclusive governance.'' Id. ``A principal purpose of this express 
federal preemption is to prevent a patchwork of local and state 
regulations from unreasonably interfering with interstate commerce.'' 
Tenth Ave. Neighbors, FD 36654, slip op. at 3-4. In the Board's 
parlance, such state laws are categorically preempted. See, e.g., 
Wichita Terminal Ass'n--Pet. for Declaratory Ord., FD 35765, slip op. 
at 6 (STB served June 23, 2015) (stating that certain actions are 
``expressly or categorically preempted under [section] 10501(b)'').
    The breadth of this grant of exclusive jurisdiction, in conjunction 
with the preemption provision, also forms a basis for implied 
preemption. Congress stated its intent to ``reflect the direct and 
complete pre-emption of State economic regulation of railroads,'' and 
``extend[ ] exclusive Federal jurisdiction'' to areas where state 
jurisdiction was previously reserved. H.R. Rep. No. 104-311, at 95. And 
through ICCTA, Congress affirmed that ``the Federal policy of occupying 
the entire field of economic regulation of the interstate rail 
transportation system'' was ``intended to address and encompass all 
such regulation and to be completely exclusive.'' Id. The Board 
considers contrary state law to be preempted on an as-applied basis. 
See, e.g., Franks Inv. Co., 593 F.3d at 414 (``We adopt the [Board's] 
as-applied preemption analysis as appropriate for implied preemption 
under the ICCTA.''). This rule also follows longstanding precedent, 
predating ICCTA, holding that the Interstate Commerce Act ``preempts 
state laws that could operate to unreasonably burden interstate 
commerce.'' Tex. Dep't of Transp.--Pet. for Declaratory Ord. Regarding 
Highway Constr. In Tarrant Cnty, Tex., FD 32589, slip op. at 4 (ICC 
served Feb. 7, 1995); see also Reguls. Governing Fees for Servs. 
Performed in Connection with Licensing & Related Servs., l I.C.C.2d 60, 
81 (1984) (evaluating whether state regulatory actions were ``an 
unreasonable burden on interstate commerce'').

[[Page 70966]]

B. ICCTA Preemption Framework

    When faced with a question about whether ICCTA preempts a state or 
local law, the Board and courts first determine whether to apply a 
categorical preemption analysis or an as-applied preemption analysis 
based on the nature of the regulation. Whether preemption is 
categorical or as-applied does not turn merely on whether the 
potentially preempted regulation is directed at rail carrier 
transportation specifically (such as limiting railroad operating hours) 
or instead is of general applicability (like zoning ordinances). Both 
sorts of regulations may be preempted either categorically or as-
applied, depending on whether the regulation intrudes on a matter 
directly regulated by the Board--for example, reasonable rail rates and 
practices--and not on the entity subject to the regulation.\23\
---------------------------------------------------------------------------

    \23\ Moreover, a Board or court holding that a state law of 
general applicability is preempted, either categorically or as-
applied, does not invalidate the state law. Instead, the ICCTA 
preemption determination means that the law is preempted only in its 
application to activities within the Board's exclusive jurisdiction 
under 49 U.S.C. 10501(b). Thus, a zoning ordinance that is 
categorically preempted when used to manage jurisdictional rail 
carrier transportation may still be applied generally to other 
industries.
---------------------------------------------------------------------------

    It is the Board's long-established policy to analyze preemption in 
a way that seeks to prevent a patchwork of state and local regulation 
from interfering with rail transportation within the Board's 
jurisdiction. See Tenth Ave. Neighbors, FD 36654, slip op. at 3-4 
(recognizing that ``[a] principal purpose of this express federal 
preemption is to prevent a patchwork of local and state regulations 
from unreasonably interfering with interstate commerce''); CSX Transp., 
Inc.--Pet. for Declaratory Ord., FD 34662, slip op. at 11 (STB served 
March 14, 2005) (stating that ``[s]ection 10501(b) is intended to 
prevent a patchwork of local regulation from unreasonably interfering 
with interstate commerce,'' and that the regulation at issue ``would 
unreasonably interfere with interstate commerce, and if permitted to 
exist, would likely lead to further piecemeal attempts by other 
localities to regulate rail shipments'').
1. Categorical Preemption Analysis
    State or local laws are preempted categorically if they may 
reasonably be understood to manage or govern transportation by a rail 
carrier or certain related activities, including by foreclosing or 
restricting the railroad's ability to conduct its own operations. See 
Delaware, 859 F.3d at 18 (ICCTA preempts ``all state laws that may 
reasonably be said to have the effect of managing or governing rail 
transportation.''); Wichita Terminal Ass'n, FD 35765, slip op. at 6. 
Categorical preemption typically applies to: (1) laws that directly 
regulate transportation by rail carriers, and (2) generally applicable 
permitting or preclearance laws when imposed on rail transportation.
    ICCTA ``prevent[s] states or localities from intruding into matters 
that are directly regulated by the Board (e.g., railroad rates, 
services, construction, and abandonment).'' 14500 Ltd. LLC, FD 35788, 
slip op. at 3; see also Ass'n of Am. R.Rs. v. S. Coast Air Quality 
Mgmt. Dist., No. 06-CV-1416, 2007 WL 2439499, at *7 (C.D. Cal. Apr. 30, 
2007) (holding that rules directly regulating rail operations, such as 
idling, are preempted regardless of whether they are considered undue 
or unreasonable), aff'd, 622 F.3d 1094 (9th Cir. 2010). Categorical 
preemption ``also prevents states or localities from imposing 
requirements that, by their nature, could be used to deny a railroad's 
ability to conduct rail operations or proceed with activities that the 
Board has authorized, such as a construction or abandonment,'' or to 
maintain its facilities. 14500 Ltd. LLC, FD 35788, slip op. at 3-4 & 
n.5. Therefore, ``state law preclearance or permitting requirements 
that could be used to deny or unreasonably delay a rail carrier's 
ability to conduct rail operations typically are categorically 
preempted.'' Grafton & Upton, FD 36696, slip op. at 7 (collecting 
cases). Some examples include building permits, zoning ordinances, and 
environmental and land use permitting requirements. E.g., Jie Ao--Pet. 
for Declaratory Ord., FD 35539, slip op. at 5 (STB served June 6, 
2012). The Board and courts have long recognized that ``[i]f local 
authorities have the ability to impose `environmental' permitting 
regulations on the railroad, such power will in fact amount to 
`economic regulation' if the carrier is prevented from constructing, 
acquiring, operating, abandoning, or discontinuing a line.'' City of 
Auburn, 154 F.3d at 1031 (affirming Board finding of preemption of 
state and local environmental permitting laws as applied to rail 
construction project).
    Additionally, categorical preemption applies regardless of the 
stated purpose of the law. See Borough of Riverdale--Pet. for 
Declaratory Ord.--N.Y. Susquehanna & W. Ry., 4 S.T.B. 380, 388 n.16 
(1999) (noting that ``even health and safety regulation is preempted 
where Congress intended to preempt all state and local law''). 
Moreover, it ``does not depend on whether the practical application of 
the statute or regulation is narrowly tailored.'' Delaware, 859 F.3d at 
22. The categorical ``preemption analysis is addressed not to the 
reasonableness of the particular state or local action, but rather to 
the act of regulation itself.'' CSX Transp., Inc., FD 34662, slip op. 
at 3 (STB served May 3, 2005); see also Green Mountain R.R. v. Vermont, 
404 F.3d 638, 644 (2d Cir. 2005) (stating that ``the focus is the act 
of regulation itself, not the effect of the state regulation in a 
specific factual situation'') (citation modified). Some limited fact-
finding may be needed to determine ``whether the state or local action 
falls within a category subject to categorical preemption.'' CSX 
Transp., Inc., FD 35832, slip op. at 5. But if it does, a regulation 
that has the effect of managing or governing transportation by rail 
carrier is preempted ``regardless of its practical effect.'' Delaware, 
859 F.3d at 19. And state permitting or preclearance requirements are 
categorically preempted ``without requiring a factual analysis of their 
effect on transportation.'' See, e.g., Grafton & Upton, FD 36696, slip 
op. at 7 (collecting cases); see also Green Mountain R.R., 404 F.3d at 
644 (``[W]hat is preempted here is the permitting process itself, not 
the length or outcome of that process in particular cases.'').
2. As-Applied Preemption Analysis
    Even when a state or local law is not categorically preempted, it 
may be preempted under the ``as-applied'' analysis if it either: (1) 
unreasonably burdens or interferes with transportation by rail 
carriers, or (2) discriminates against rail carriers.
a. Unreasonable Burden or Interference
    State and local laws are preempted ``as applied'' if they 
unreasonably burden or interfere with current--or future--rail 
transportation. This is ``a fact-specific determination based on the 
circumstances of each case.'' See, e.g., Wichita Terminal Ass'n, FD 
35765, slip op. at 6 (citation omitted). An as-applied analysis 
includes a comprehensive analysis of the likely impact of the proposed 
law's application to current rail operations. See, e.g., Tri-City R.R., 
FD 35915, slip op. at 8 (analyzing length, location, and configuration 
of track, its uses, and potential alternative locations for 
operations). The Board and courts also consider interference with 
planned or potential future rail operations. Certain state actions may 
be preempted even when no current rail operations exist on tracks 
within the Board's jurisdiction, based on potential future use (for 
example, when a line is

[[Page 70967]]

railbanked or when a rail carrier intends to develop a property for 
rail use). See, e.g., id. (analyzing future operations and effects of 
increases in rail traffic); Jie Ao, FD 35539, slip op. at 5 (analyzing 
effects on future reactivation of railbanked line, even though ``there 
are currently no specific plans to reactivate this property,'' 
including impacts on potential rail-related construction, track bed 
stabilization, drainage, and maintenance).
    Because ICCTA was established to prevent a patchwork of differing 
state and local regulations, the unreasonable-burden analysis also 
requires consideration of ripple effects across the broader interstate 
rail network. Accordingly, the analysis considers not only the facts of 
a single case, but also the potential impact on the interstate rail 
network as a whole, guarding against a ``patchwork'' of ``potentially 
differing standards'' as trains travel across the network. See Wichita 
Terminal Ass'n, FD 35765, slip op. at 10; see also Norfolk S. Ry., FD 
35701, slip op. at 4-6 (finding that state inverse condemnation claims 
based on dust, vibration, and noise were preempted and explaining that 
absent preemption ``all railroads on the interstate rail network could 
be subject to inverse condemnation actions from adjacent landowners 
throughout the country based on the effects of normal railroad 
operations''). ``The interstate rail network could not function 
properly if states and localities could impose their own potentially 
differing standards for'' rail operations, nor if state regulations 
could ``interfer[e] with the railroad's ability to uniformly design, 
construct, maintain, and repair its railroad line.'' Tubbs, FD 35792, 
slip op. at 5.
    Again, ICCTA preemption has its limits. Federal law does not 
preempt local and state application of laws having a ``more remote or 
incidental effect on rail transportation.'' N.Y. Susquehanna & W. Ry., 
500 F.3d at 252. Therefore, ICCTA's ``preemption provision does not 
prevent state and local governments from imposing appropriate health 
and safety regulations and exercising their police powers'' in 
appropriate circumstances. Smithtown, FD 36575 (Sub-No. 1), slip op. at 
4. In addition, the Board has held that condemnations of railroad 
property, under generally applicable state eminent domain law for 
``routine non-conflicting uses, such as non-exclusive easements for at-
grade road crossings . . . are not preempted so long as they would not 
impede rail operations or pose undue safety risks.'' Wichita Terminal 
Ass'n, FD 35765, slip op. at 6. Additionally, the enforcement of 
``generally applicable, non-discriminatory regulations'' like 
``[e]lectrical, plumbing and fire codes'' that have only an 
``incidental'' effect on rail transportation may be permissible. See 
Green Mountain R.R., 404 F.3d at 643, 645; Smithtown, FD 36575 (Sub-No. 
1), slip op. at 4. And again, ICCTA preemption reaches 
``transportation'' by ``rail carrier.''
    But states ``cannot use their police powers to indirectly regulate 
matters reserved to the Board . . . .'' Soo Line R.R.--Pet. for 
Declaratory Ord., FD 35850, slip op. at 5 (STB served Dec. 23, 2014). 
Although pre-ICCTA, the Interstate Commerce Act explicitly preserved 
the states' ``police power'' to impose ``reasonable intrastate 
transportation'' requirements, 49 U.S.C. 10501(c) (1994), this 
``disclaimer regarding residual State police powers [was] eliminated as 
unnecessary [in ICCTA], in view of the Federal policy of occupying the 
entire field,'' H.R. Rep. No. 104-311, at 95-96. ``Although States 
retain the police powers reserved by the Constitution, the Federal 
scheme of economic regulation and deregulation is intended to address 
and encompass all such regulation and to be completely exclusive.'' Id. 
at 96. Thus, ``states are not free to impose any requirements they wish 
in the name of their police power.'' CSX Transp., Inc., FD 34662, slip 
op. at 4-5 (STB served May 3, 2005). Although certain decisions have 
referred to a ``police power exception'' to ICCTA preemption, see 
Grafton & Upton R.R.--Pet. for Declaratory Ord., FD 35752, slip op. at 
9 (STB served Sept. 19, 2014), what matters is not that the state or 
locality is exercising ``police powers'' as such, but that it is 
enforcing ``generally applicable, non-discriminatory regulations'' like 
``[e]lectrical, plumbing and fire codes'' that have only an 
``incidental'' effect on rail transportation--and even then, such 
regulations ``must not have the effect of foreclosing or restricting 
the railroad's ability to conduct its operations or otherwise 
unreasonably burdening interstate commerce,'' or they may be preempted. 
See Green Mountain R.R., 404 F.3d at 643, 645; Smithtown, FD 36575 
(Sub-No. 1), slip op. at 4 (ICCTA ``does not prevent state and local 
governments from . . . exercising their police powers so long as'' they 
do not regulate, unreasonably burden, or discriminate against rail 
carriers).
b. Discrimination Against Rail Transportation.
    State laws and regulations that discriminate against rail 
transportation may also be preempted on an as-applied basis. The ICC 
long held that, ``in areas not governed by [f]ederal legislation, 
[s]tates and their subdivisions may make reasonable regulations 
affecting commerce under our jurisdiction so long as they are uniformly 
applied and do not discriminate against or constitute an undue burden 
on or an obstruction of commerce, in accordance with standard 
preemption principles.'' Appls. for Operating Auth.--Motor Passenger 
Carriers, 133 M.C.C. 62, 86-87 (I.C.C. 1982) (discussing motor 
carriers); see also City of Auburn, 154 F.3d at 1029 n.6 (``Before 
1980, the ICC was empowered to preempt state regulation of intrastate 
lines only when an intrastate rate set by the state unjustly 
discriminated against or imposed an undue burden on interstate 
commerce.''). Thus ``state and local entities can enforce in a non-
discriminatory manner'' local laws passed under their police powers. 
Riverdale, 4 S.T.B. at 389; see also Green Mountain R.R., 404 F.3d at 
643 (noting that certain ``non-discriminatory regulations'' would not 
be preempted); Delaware, 859 F.3d at 18-19 (same, after conducting 
extensive survey of precedent); City of Milwaukie--Pet. for Declaratory 
Ord., FD 35625, slip op. at 4 (STB served Mar. 25, 2013) (noting that 
such regulations can apply to rail carrier transportation ``if they are 
applied without discrimination'').
    Courts have recognized that ``[t]he non-discriminatory prong is 
particularly useful in determining whether a state is regulating 
principally to discriminate against a specific industry.'' N.Y. 
Susquehanna & W. Ry., 500 F.3d at 254. ``[F]or a state regulation to 
pass muster, it must address state concerns generally, without 
targeting the railroad industry.'' Id.; see also BNSF Ry. v. Cal. Dep't 
of Tax & Fee Admin., 904 F.3d 755, 761, 768 (9th Cir. 2018) (concluding 
that ICCTA would preempt use of traditional state police powers to 
impose a fee on shipment of hazardous materials in California, where 
the fee would apply only to shipments ``by rail''). But even so, a 
regulation addressing state concerns generally--which may include a fee 
or other charge on rail carriers or transportation by rail--cannot be 
used ``as pretext for interfering with or curtailing rail service.'' 
N.Y. Susquehanna & W. Ry., 500 F.3d at 254; see also BNSF Ry. v. Town 
of Cicero, Ill., 592 F. Supp. 3d 716, 729 (N.D. Ill. 2022) (finding 
that the rail carrier adequately showed that a local sewer ordinance 
regulated railroad transportation because it singled out and targeted 
railroads for a rate higher than the rate paid by other commercial and 
industrial

[[Page 70968]]

properties).\24\ To assess preemption in this context, the Board and 
courts look to whether the law ``is being applied in a discriminatory 
manner, or being used as a pretext for frustrating or preventing a 
particular activity.'' Joint Pet. for Declaratory Ord.--Bos. & Me. 
Corp., 5 S.T.B. 500, 509 (2001). Though not all state regulations that 
apply specifically to railroads are impermissibly discriminatory, such 
regulations may be preempted in at least two circumstances: (1) when 
the regulation requires something of the railroad that it does not 
require of other modes of transportation or similarly situated 
entities, or (2) when the regulation could be used to target railroads 
in order to cause indefinite delays to railroad operations. See Adrian 
& Blissfield R.R., 550 F.3d at 541-42.
---------------------------------------------------------------------------

    \24\ In general, a fee is discriminatory if it treats railroads 
differently than other modes without sufficient justification. Cf. 
Ala. Dept. of Revenue v. CSX Transp., Inc., 575 U.S. 21, 27, 30 
(2015) (discussing discriminatory taxes under the Railroad 
Revitalization and Regulation Reform Act of 1976 (4R Act), 49 U.S.C. 
11501(b)(4)); Union Pac. R.R. v. Wis. Dep't. of Revenue, 940 F.3d 
336, 337 (7th Cir. 2019) (finding a tax ``singl[ing] out railroads 
as part of an isolated and targeted group'' unlawful under the 4R 
Act).
---------------------------------------------------------------------------

    As in other forms of preemption analysis, laws can be 
discriminatory whether or not they specifically mention rail carriers. 
For example, a law of general applicability passed to protect health 
and safety by imposing quantity, duration, and location restrictions on 
the storage of certain substances was found discriminatory as applied 
to a rail carrier's transloading facility. See Vt. Ry. v. Town of 
Shelburne, 287 F. Supp. 3d 493, 494 (D. Vt. 2017), aff'd, 918 F.3d 82 
(2d Cir. 2019). In that instance, the court held that the timing of the 
passage of the ordinance (during litigation between the town and rail 
carrier), threshold limits, and commodities affected would, in 
practice, uniquely apply to the transload facility and not others who 
may be similarly situated, and as such, ``these provisions clearly 
target and discriminate against the [rail carrier]'s facility.'' Id. at 
500-01. For these reasons (as well as unreasonable burden), the 
ordinance was preempted. Id. at 505. Conversely, in Adrian & Blissfield 
R.R., an ordinance requiring rail carriers to construct, or pay for the 
construction of sidewalk crossings over their tracks was found non-
discriminatory. See Adrian & Blissfield R.R., 550 F.3d at 539. In that 
case, the court first held that the ordinance did not regulate rail 
transportation. See id. at 540 & n.6. It went on to ``apply the as-
applied-preemption analysis,'' including the prohibition on laws that 
``discriminate against railroads.'' Id. at 541 (citation omitted). The 
court deemed the ordinance was non-discriminatory because (1) it 
``addresse[d] a general state concern''; (2) there was ``no evidence'' 
that the ordinance could be used pretextually to interfere with rail 
operations; and (3) the state was not ``requir[ing] something of the 
Railroad that it does not require of similarly situated entities.'' Id. 
at 541-42.
3. Complete Takings--Refocused Categorical Approach
    When state or local law is used in an attempt to entirely 
dispossess a rail carrier of its property rights--such as through a 
private claim for adverse possession, or a state's use of eminent 
domain--the Board and court precedents have been unclear about whether 
categorical or as-applied analysis should govern.\25\ See, e.g., Jie 
Ao, FD 35539, slip op. at 1 (holding that ``state law adverse 
possession claim is federally preempted, regardless of whether this 
case is analyzed as `categorical' preemption [or] as `as applied' 
preemption''). And as courts have recognized, ``[t]he more a property 
action excludes a rail carrier and takes a property for a conflicting 
use, the more likely the action will be preempted.'' Norfolk S. Ry. v. 
Dille Rd. Recycling, LLC, 94 F.4th 517, 524, 527 (6th Cir. 2024) 
(discussing a ``spectrum'' of easement claims where ``routine, 
nonexclusive easements . . . are generally not preempted,'' but those 
``that are exclusive or deemed adverse possession by another name are 
often preempted''). While this policy statement is not adopting a 
definitive approach that resolves all cases, there are strong policy 
arguments that state and local law claims seeking to take exclusive 
possession of any portion of a validly held railroad right-of-way, or 
to take rail carrier property that the rail carrier uses--or plans to 
use--to support rail transportation (i.e., property falling within the 
definition of ``transportation'' under 49 U.S.C. 10102(9)) would be 
better reviewed under the categorical preemption analysis.\26\ And 
there are also strong policy arguments that claims involving more 
routine, non-conflicting uses--such as non-exclusive easements for at-
grade road crossings, subterranean water or sewer lines, and related 
claims--are best assessed using an as-applied analysis as the Board 
does currently.
---------------------------------------------------------------------------

    \25\ State laws governing the acquisition of property by a rail 
carrier generally are not preempted. See, e.g., Grafton & Upton R.R. 
v. STB, 177 F.4th 1234, 1240 (D.C. Cir. 2026) (``ICCTA does not 
preempt generally applicable state property laws that `do not 
unreasonably interfere with railroad operations or the Board's 
regulatory programs.''') (quoting CSX Transp., FD 35832, slip op. at 
4); Great Walton R.R.--Pet. for Declaratory Ord., AB 1242 (Sub-No. 
1), slip op. at 7, 11 (STB served June 9, 2020) (leaving it to rail 
carrier to establish its interest in the underlying real property 
under state law); see also Allegheny Valley R.R.--Pet. for 
Declaratory Ord.--William Fiore, FD 35388, slip op. at 4 & n.4 (STB 
served Apr. 25, 2011) (explaining that disputes over the ``size, 
location, and nature of property rights'' are most appropriately 
decided by courts applying state law and that ``[p]roof of ownership 
. . . cannot be inferred from our approval to acquire and operate 
the rail line''); Tongue River R.R.--Constr.& Operation--W. 
Alignment, FD 30186 (Sub-No. 3) et al., slip op at 16 n.50 (STB 
served Oct 9, 2007) (``The applicant [in rail construction cases] is 
responsible for acquiring the land necessary to build the line.''). 
Relatedly, the Board's jurisdiction generally does not preempt rail 
carrier efforts to acquire property under state eminent domain law, 
including where a state denies a carrier condemnation request. See 
Great Walton R.R., AB 1242 (Sub-No. 1), slip op. at 7 (STB served 
June 9, 2020); see also Great Redwood Trail Agency, AB 1305 (Sub-No. 
1), slip op. at 14 (``[R]ail carriers are generally responsible for 
acquiring the land necessary to support their operations, including 
to the extent permitted by condemnation.'').
    \26\ As noted above, limited fact-finding may be needed to 
determine ``whether the state or local action falls within a 
category subject to categorical preemption.'' CSX Transp., Inc., FD 
35832, slip op. at 5.
---------------------------------------------------------------------------

    State or local regulation that seeks to take exclusive control of 
rail carrier rights-of-way or other property can take many different 
forms, including but not limited to claims for eminent domain, 
condemnation, or adverse possession, among others. ``The agency's broad 
and exclusive jurisdiction over railroad operations and activities 
prevents application of state law claims that would take rail property 
for another, conflicting use, including adverse possession claims that 
would interfere with rail use, present or future.'' 14500 Ltd. LLC, FD 
35788, slip op. at 4. Using state law for these purposes ``is 
exercising control--the most extreme type of control--over rail 
transportation as it is defined in section 10102(9).'' Wis. Cent. Ltd. 
v. City of Marshfield, 160 F. Supp. 2d 1009, 1013 (W.D. Wis. 2000). 
This type of taking ``is a permanent action, and `it can never be 
stated with certainty at what time any particular part of a right of 
way may become necessary for railroad uses.''' City of Lincoln v. STB, 
414 F.3d 858, 862 (8th Cir. 2005) (quoting Midland Valley R.R. v. 
Jarvis, 29 F.2d 539, 541 (8th Cir. 1928)). Further, such actions 
``would foreclose [the rail carrier]'s development of the property for 
rail `transportation' purposes.'' Grafton & Upton, FD 36696, slip op. 
at 11.
    For rail carrier property within the Board's jurisdiction, only 
upon abandonment does the underlying property become ``ordinary 
property'' subject to the application of state law. See, e.g., Hayfield 
N. R.R. v. Chi. & NW

[[Page 70969]]

Transp. Co., 467 U.S. 622, 633-34 (1984). Rail lines under the Board's 
jurisdiction remain available for common carrier service upon 
reasonable request. 49 U.S.C. 11101(a). Even where the Board has 
authorized discontinuance of service over a rail line, such that there 
is no extant common carrier obligation, the line remains available for 
the reinstitution of service in the future. See, e.g., Preseault v. 
ICC, 494 U.S. 1, 5 n.3 (1990) (stating that ``discontinuance'' 
authority allows a railroad to cease operating a line for an indefinite 
period while preserving the rail corridor for possible reactivation of 
service in the future). The common carrier obligation is not 
permanently extinguished until the line has been removed from Board 
jurisdiction via Board-authorized abandonment. See id.
    Permitting the use of state law for acquiring exclusive control of 
rail carrier property would contravene this statutory scheme. As the 
Board has explained, it would allow for the taking of ``railroad 
[right-of-way] all over the country for non-rail use, even though the 
Board has not authorized the [right-of-way] to be permanently removed 
from the nation's rail system under Title 49.'' Jie Ao, FD 35539, slip 
op. at 7. This is an ``untenable result [that] would undermine 
interstate commerce and the strong federal policy in favor of retaining 
rail property in the national rail network, where possible.'' Id. 
(citing 49 U.S.C. 10904, 10907 & 16 U.S.C. 1247(d)). Subjecting Board-
jurisdictional rail line or excepted track to adverse possession, 
eminent domain, or condemnation claims under state law would thus 
``have the effect of managing or governing rail transportation,'' 
Skidmore v. Norfolk S. Ry., 1 F.4th 206, 215 (4th Cir. 2021), and 
``would amount to regulation of rail transportation because [they] 
would confer exclusive control to [someone other than the rail carrier] 
over property that is part of the national rail network.'' Jie Ao, FD 
35539, slip op. at 3. With this backdrop, the Board has previously 
observed that ``[n]either the Board nor the courts . . . have found 
that cities can entirely take from a railroad land the railroad has 
slated for present or future rail use.'' Norfolk S. Ry.--Pet. for 
Declaratory Ord. (Ala. Great S.), FD 35196, slip op. at 5 (STB served 
Mar. 1, 2010).\27\ And the Board has held that ICCTA ``preempts state 
law eminent domain and adverse possession claims for exclusive 
possession of part of a railroad right-of-way or other railroad 
property that could affect present or future rail transportation.'' 
Ohio Rail Dev. Comm'n--Pet. for Declaratory Ord., FD 36822, slip op. at 
7 (STB served Mar. 30, 2026). As summarized by the Fourth Circuit:
---------------------------------------------------------------------------

    \27\ But see Girard v. Youngstown Belt Ry., 979 NE2d 1273, 1287 
(Ohio 2012) (subsequently holding that eminent domain claim was not 
preempted).

    Indeed, allowing an individual landowner to wrest exclusive 
control of land within the national rail corridor away from a 
railroad could expose a rail carrier to death by a thousand cuts. 
Rail carriers would either have to be hyper-vigilant about fending 
off adverse possession claims along countless miles of tracks, or 
risk losing ownership interests in land that is (or might be) 
necessary to conduct business and comply with federal regulations. 
Because maintaining a unified federal mechanism for governing the 
national rail network is an issue of overwhelming national 
importance, federal law must preempt [state or local] quiet title 
---------------------------------------------------------------------------
claims.

    Skidmore, 1 F.4th at 217.
    One critical aspect of the Board's categorical preemption analysis 
is that such regulations are preempted without requiring a factual 
analysis of their effect on transportation and whether any interference 
may be unreasonable. With respect to claims for possession of rights-
of-way subject to the Board's jurisdiction, once the threshold 
determination is made that the scope of the sought-after property right 
would exclude rail use, there are strong arguments that the analysis 
should be at its end. Such claims may be categorically preempted 
without a detailed inquiry into their effect on present or future 
operations and whether interference is unreasonable. Cf. Green Mountain 
R.R., 404 F.3d at 644 (applying categorical preemption to permitting of 
transloading construction and stating that ``what is preempted here is 
the permitting process itself, not the length or outcome of that 
process in particular cases''); see also Wis. Cent. Ltd., 160 F. Supp. 
at 1013-14 (holding that condemnation was preempted without an inquiry 
as to interference). The Board recognizes that condemnation claims, 
including those involving non-exclusive easements, have often been 
analyzed under the as-applied framework. See e.g., City of Lincoln, 414 
F.3d at 860. In the Board's view, there are compelling policy 
considerations that the as-applied framework is ill-suited to address 
condemnation or similar claims that would foreclose rail use of rail 
property and rights-of-way (or portions thereof) that are subject to 
the Board's jurisdiction and must remain available for common carrier 
service. These types of takings are arguably more severe incursions on 
activities within the Board's exclusive jurisdiction than others that 
have been long recognized as categorically preempted. If a state entity 
is categorically prohibited from enforcing a zoning law or other 
preclearance requirement to prevent the construction of a rail 
carrier's facility on its property, it makes little sense to find that 
the state entity would be subject to a less rigorous as-applied 
framework if it were instead to seek to take the property outright 
through condemnation. Moreover, consideration of such exclusive takings 
under the as-applied preemption framework may result in patchwork 
regulation of standards concerning present and future rail service, 
contrary to the uniform licensing framework established in ICCTA. 
Parties contending that such rights-of-way no longer serve any bona 
fide rail purpose have historically directed that contention to the 
Board through an adverse abandonment proceeding.\28\ In prior cases, 
rail carriers defending against actions to take their property have 
been required to set forth extensive analysis of the current and 
potential future uses of the property for rail operations. See, e.g., 
Grafton & Upton, FD 36696 (STB served Nov. 15, 2023); 14500 Ltd. LLC, 
FD 35788 (STB served June 5, 2014); Ala. Great S., FD 35196 (STB served 
Mar. 1, 2010). Where an action to take rail property would exclude rail 
use on a portion of the rail property or rights-of-way subject to the 
Board's jurisdiction, that consequence is ascertainable at the outset 
and therefore may warrant categorical treatment without further 
inquiry. See Jie Ao, FD 35539, slip op. at 5-7; see also Wis. Cent. 
Ltd., 160 F. Supp. 2d at 1013-14 (categorically preempting condemnation 
of rail property and stating that ``the nature of the preempted state 
regulation is irrelevant''); Soo Line R.R., 827 F. Supp. 2d at 1022 
(same and noting that ``factual `as applied' arguments concerning 
whether the proposed easement would unreasonably interfere with [the 
rail carrier]'s activities are not relevant'').
---------------------------------------------------------------------------

    \28\ Although the Board has granted adverse abandonment of rail 
carrier property in certain limited circumstances, applicants bear a 
heavy burden. See Colo. Landowners--Adverse Aban.--Great W. Ry. of 
Colo. in Weld Cnty, Colo., AB 857 (Sub-No. 2), slip op. at 5 (STB 
served July 30, 2025). The Board considers matters such as whether 
active shippers would lose service, whether there is any potential 
for continued rail service, whether the carrier has taken reasonable 
steps to attract traffic or rehabilitate or utilize an inoperable 
line, and the carrier's judgment about the need for, and usefulness 
of, the line. See id. at 6-7 (summarizing the state of the Board's 
precedent on adverse abandonments).
---------------------------------------------------------------------------

    It may be reasonable to conclude that certain other takings claims 
would not be appropriate for a categorical analysis.

[[Page 70970]]

As noted above, there are strong arguments that non-exclusive 
easements, such as for crossings, warrant an as-applied preemption 
analysis that looks to the degree of interference with rail operations. 
Similarly, claims to take land under a right-of-way or under other rail 
property, such as for laying subterranean utility or broadband lines or 
similar facilities, may be analyzed under the as-applied framework. 
Subject to the facts and circumstances in particular cases, such non-
exclusive uses may be permissible, or may unreasonably interfere with 
interstate rail transportation if, for example, they are placed in 
locations that undermine the integrity of the rail right-of-way, or are 
installed in a manner, or for a duration, that prevents or materially 
interferes with rail operations.
4. Shipper and Receiver Rights to Common Carrier Rail Service
    The Board recognizes that private investment in rail 
infrastructure--by carriers and customers alike--is critical to 
maintaining and improving the expansive interstate rail network for 
existing customers, extending its reach to new customers, and ensuring 
its competitiveness with other modes of transportation. Rail 
transportation--unlike modes such as trucking and water carriage, which 
rely heavily on public infrastructure maintained by public entities 
(such as roads, waterways, and ports)--operates almost exclusively on 
privately owned and developed infrastructure. Such projects are time 
and labor intensive, and require high levels of coordination--and, 
frequently, co-investment--between rail carriers and potential 
customers seeking common carrier rail service.
    Although the Board's jurisdiction extends only to 
``transportation'' by, or under the auspices of, a ``rail carrier,'' 
the application of state and local regulations nominally to rail 
customers implicates ICCTA in certain situations.
    It has been long recognized that ``ICCTA preempts both direct and 
indirect regulation that affects a railroad's ability to conduct common 
carrier operations.'' Smithtown, FD 36575 (Sub-No. 1), slip op. at 4 
n.7 (collecting cases). Thus, for example, a local ordinance and permit 
restricting truck transportation ``regulate[d] `transportation by a 
rail carrier,' as defined by the ICCTA,'' because they ``directly 
impact[ed] [the rail carrier]'s ability to move goods shipped by 
rail.'' Norfolk S. Ry. v. City of Alexandria, 608 F.3d 150, 158-59 (4th 
Cir. 2010). Preemption applied even though the ordinance and permit 
``regulate[d] only the trucks leaving the [railroad's transloading] 
Facility, not the trans-loading process itself,'' and did not directly 
``regulate any aspect of the movement of trains [or] the unloading or 
transloading of trains.'' Id. at 159. Likewise, ICCTA does not permit 
``regulation of the interstate freight rail network under the guise of 
local regulations directed at the shippers who would use the network,'' 
which would ``create the patchwork of conflicting local regulations 
that Congress sought to avoid in the Interstate Commerce Act.'' Bos. & 
Me. Corp.--Pet. for Declaratory Ord., FD 35749, slip op. at 5 (STB 
served July 19, 2013). Shippers have ``rights provided by federal law 
to ask for and receive common carrier rail service from'' rail carriers 
under the Board's jurisdiction, and so even regulations ``directed 
solely at'' a shipper would create a ``fundamental conflict between'' 
the shipper's right to request, and a rail carrier's right to provide, 
common carrier rail service under ICCTA. Id. at 4. Such state and local 
regulations conflict with Congress's purpose in codifying the common 
carrier obligation, because rail carriers' ability to provide service 
and shippers' right to receive service on reasonable request are two 
sides of the same coin. Cf. Engine Mfrs. Ass'n v. S. Coast Air Quality 
Mgmt. Dist., 541 U.S. 246, 255 (2004) (``[T]reating sales restrictions 
and purchase restrictions differently for pre-emption purposes would 
make no sense,'' because the ``right to sell . . . is meaningless in 
the absence of a purchaser's right to buy . . . .'').
    The point at which activities no longer constitute ``transportation 
by rail carrier'' and certain related activities, and thus fall outside 
the Board's jurisdiction, can be difficult to discern in some 
situations--particularly for activities involving the loading and 
unloading of rail cars on shipper-owned track--and the Board's 
precedents in this area have not always been entirely consistent. In 
Boston & Maine, FD 35749, slip op. at 4-5, the Board suggested that 
state regulation of a customer's private, non-jurisdictional track 
would be preempted if it impacted common carrier service. On the other 
hand, in SEA-3, Inc.--Petition for Declaratory Order (SEA-3), FD 35853, 
slip op. at 6-7 (STB served Mar. 17, 2015), the Board determined that a 
city's challenge to a zoning decision allowing an existing rail 
customer to increase its use of rail common carrier service by 
constructing additional rail berths at its transloading facility was 
not preempted. And, in Valero Refining Co.--Petition for Declaratory 
Order (Valero), FD 36036, slip op. at 2, 6 (STB served Sept. 20, 2016), 
the Board held that it did not have jurisdiction over an existing rail 
customer's construction of an off-loading facility designed to receive 
common carrier unit train service. In Valero, state and local 
authorities denied a permit for construction of the project, based at 
least in part on the impacts of increased common carrier service, as 
well as impacts of the commodity likely to be carried in that service. 
See id. at 2.\29\
---------------------------------------------------------------------------

    \29\ The Board has been made aware that Valero abandoned the 
rail transload terminal project following the Board's decision and 
announced its intent to cease refining operations at the facility in 
2026, see Valero, Valero Announces Notice to the California Energy 
Commission Regarding its Benicia, California, Refinery (Apr. 16, 
2025), <a href="https://investorvalero.com/news/news-details/2025/Valero-Announces-Notice-to-the-California-Energy-Commission-Regarding-its-Benicia-California-Refinery/default.aspx">https://investorvalero.com/news/news-details/2025/Valero-Announces-Notice-to-the-California-Energy-Commission-Regarding-its-Benicia-California-Refinery/default.aspx</a>, and Valero's website 
indicates that full idling of all processing units at this facility 
was completed in April 2026, see Valero, Benicia Refinery, <a href="https://www.valero.com/about/locations/benicia-refinery">https://www.valero.com/about/locations/benicia-refinery</a> (last visited Sept. 
30, 2026). Additionally, although the Board has not revisited Valero 
in the decade since its issuance, the Board is aware that state and 
local restrictions on rail-served facilities have been promulgated 
and upheld as beyond the Board's jurisdiction in numerous 
circumstances. See, e.g., Montana v. City of Portland, No. 3:23-cc-
00219-YY, 2024 WL 1007865, at *1, 12 (D. Or. Feb. 26, 2024) (finding 
local ordinance restricting the construction of bulk fossil fuel 
terminals was, among other things, not preempted because plaintiffs 
did not allege they were rail carriers or performing activities on 
behalf of or under the auspices of a rail carrier), rep. & 
recommendation adopted in part, rejected in part, No. 3:23-CV-00219-
YY, 2024 WL 3326230 (D. Or. July 5, 2024).
---------------------------------------------------------------------------

    Thus, the Board provides here a modified analytical framework that, 
subject to the arguments and facts presented in particular proceedings, 
may inform an evaluation of whether regulations nominally directed at 
rail customers are, in practice and in legal effect, regulations of 
transportation by rail carriers that are preempted by ICCTA. The 
potential framework begins with a fact-specific threshold inquiry 
consisting of two questions. First, is the facility or project at issue 
developed or used to receive or tender common carrier rail service--a 
transload, off-loading, or similar facility whose function is the 
interchange of traffic with a rail carrier? Second, does the state or 
local action restrict, condition, or dictate common carrier service to 
that facility, such as the volume, frequency, timing, configuration, or 
commodity mix of common carrier service? Where the answer to both is 
yes, the action may regulate transportation by rail carrier in 
practical effect, and the categorical or as-applied framework, as 
appropriate, would apply depending on the nature of the regulation. A 
regulation that, for

[[Page 70971]]

example, caps the rail traffic a facility may receive binds the carrier 
as surely as one addressed to the carrier by name: the carrier cannot 
lawfully tender the service, the shipper cannot lawfully receive it, 
and the common carrier obligation of 49 U.S.C. 11101(a)--and the 
shipper's correlative right to service on reasonable request--is 
displaced by local command. See Boston & Maine, FD 35749, slip op. at 
4-5; cf. Engine Mfrs. Ass'n, 541 U.S. at 255. Where either answer is 
no--such as where the object of the regulation is the facility's non-
rail activities, not the receipt or tender of rail service--section 
10501(b) is not implicated (unless the action discriminates against 
rail transportation, which is an independent basis for analyzing 
preemption).
    This potential framework would refine the principle recognized in 
Boston & Maine--state or local action directed at a rail customer 
implicates section 10501(b) where it operates, in practical effect, on 
the common carrier service the customer receives. See Bos. & Me., FD 
35749, slip op. at 4-5. The threshold inquiry clarifies the limit and 
scope of this principle, and its rationale is evident from the examples 
of SEA-3 and Valero. In SEA-3, a city sought to use state and local 
regulations to prevent an already rail-served customer from increasing 
its facility from three to eight rail berths. If the construction was 
not allowed to occur, the result from the local regulation would be no 
different than a locality limiting or directing a rail carrier's 
execution of its common carrier obligations. In practice, it would 
dictate that only three, and not eight, cars could be sent to the 
customer at any given time. And to provide the same amount of product, 
the common carrier must make three trips, rather than one, to the 
customer facility, and must also change its operational schedule, yard 
storage, and any number of other operational decisions accordingly. 
Similarly, in Valero, the refusal by state and local officials to grant 
permission for construction not only dictated the number of cars and 
type of service (unit train vs. manifest) that the carrier could 
provide, but also imposed restrictions on the types of commodities that 
the rail carrier could tender to its customer, thus preventing the rail 
carrier from being able to fulfill its common carrier obligation. These 
types of decisions are ordinarily within the decision-making control of 
rail carriers in providing service to their customers, but were 
implicated by local regulation of rail customers in both cases. SEA-3 
and Valero read ``transportation by rail carrier'' to ask what is the 
stated object of the regulation, whereas a better reading might ask 
what was regulated in effect. The Board recognizes that rail service 
provided by a common carrier remains transportation by rail carrier 
even when the restriction on such service is addressed to the customer 
and takes this opportunity to reemphasize that principle.
    To be sure, rail customers are not directly under the Board's 
jurisdiction. And the Board expects that much regulation of rail 
customers' facilities is, and should remain, beyond the Board's 
jurisdiction. For example, a zoning ordinance would likely be preempted 
if it prevented a rail carrier from developing a transload facility. By 
contrast, ICCTA would not prevent enforcement of that same ordinance 
against a private business developing a manufacturing facility with an 
incidental rail component, or against the portions of the facility 
unrelated to the receipt or tender of common carrier rail service, 
unless there was evidence that the ordinance was being applied in a 
discriminatory manner against rail transportation. Likewise, if the 
construction projects in SEA-3 and Valero implicated local zoning or 
environmental ordinances, the ordinances' application to these 
customers would not implicate ICCTA to the extent that they apply to 
portions of the project unrelated to receiving common carrier rail 
service. And, in any event, many local ordinances--such as electrical, 
fire, plumbing, and others--would still apply, just as they do to rail 
carrier facilities.

C. Commonly Arising State and Local Preemption Issues

    There are numerous types of state laws or regulations that 
frequently result in litigation about preemption. Below is a list of 
common situations, and a summary of how such issues have been analyzed 
for preemption purposes. It should be noted that the list is not 
exhaustive, and that there are additional precedents on many of the 
issues discussed below, that at times come to differing conclusions 
based on the facts of the particular case. Moreover, the Board here 
does not take a position on how any potential future case that may come 
to the Board (or a court analyzing preemption) will, or should be, 
resolved. Rather, this list is meant to inform the public about 
relevant existing precedents on certain topics, in the hopes that this 
information will help parties proactively resolve disputes at an early 
stage.
1. Abandonment of Rail Property Interests
    As long as the Board retains jurisdiction over rail rights-of-way, 
only the Board can grant abandonment authority, and state law 
abandonment claims are preempted. Grantwood Vill. v. Mo. Pac. R.R., 95 
F.3d 654, 658 (8th Cir. 1996). For example, state laws providing that 
an easement used for rail purposes can be abandoned simply through non-
use, or where the rail carrier has removed track and ties, have been 
found to be federally preempted. Great Walton R.R., AB 1242 (Sub-No. 
1), slip op. at 6-8, 13 (STB served Feb. 27, 2026) (finding that 
ancillary track was not abandoned and remained subject to the Board's 
jurisdiction and that, therefore, a prior state court ruling that the 
easement for the track had been abandoned under state law was 
preempted); see also Ala. R.R.--Aban. Exemption--in Escambia, Conecuh, 
& Monroe Cntys., Ala., AB 1324X, slip op. at 2 n.4 (STB served Oct. 24, 
2022) (stating that a state court's ``assertion of jurisdiction'' to 
find that railroad abandoned a rail line right-of-way as a matter of 
``state law'' is ``flatly inconsistent with the Board's exclusive and 
plenary authority over the abandonment of rail lines''); Jackson 
Cnty.--Acquis. & Operation Exemption--Union Pac. R.R., FD 35982, slip 
op. at 5, 7 (STB served July 31, 2019) (rejecting argument that rail 
line was ``abandoned under Missouri law when the tracks and ties were 
removed'' because it is ``well settled'' that the Board has exclusive 
jurisdiction over abandonment). Federal preemption of state abandonment 
laws applies both to common carrier/mainline track and ancillary/
excepted track. Great Walton R.R., AB 1242 (Sub-No. 1), slip op. at 6-7 
(STB served Feb. 27, 2026).\30\ It should be noted that preemption may 
apply to forestall eviction or removal of the rail carrier from rail 
property even in situations where a rail carrier voluntarily agreed to 
a time-limited property interest. See Fillmore & W. Freight Serv., 
LLC--Emergency Pet. for Declaratory Ord., FD 35813, slip op. at 3 (STB 
served Mar. 12, 2015) (``It is well settled that, without abandonment 
or

[[Page 70972]]

discontinuance authority from the Board, the enforcement of a state or 
local order that would prevent operation over a railroad line is 
precluded.''); see also Pinelawn Cemetery, FD 35468, slip op. at 9-11 
(``[E]ven if the state court were to find that the 1904 Lease was not 
renewed, Pinelawn could not use that ruling to evict the Railroads from 
the property.'').
---------------------------------------------------------------------------

    \30\ A Board determination that a state court ruling finding a 
rail line has been abandoned under state law is preempted does not 
affect the state court's ruling on who has title to the property. 
The Board has acknowledged that it is ``well settled that the 
interpretation of deeds and the determination of who owns good title 
to property are issues of state law'' that are most appropriately 
decided by state courts. Great Walton R.R., AB 1242 (Sub-No. 1), 
slip op. at 6 n.8 (STB served Feb. 27, 2026) (citing Cent. Kan. 
Ry.--Aban. Exemption--in Marion & McPherson Cntys., Kan., AB 406 
(Sub-No. 6X), slip op. at 2 (STB served May 8, 2001)).
---------------------------------------------------------------------------

2. Complete Takings of Rail Carrier Property
    Takings of rail property can come in many different forms, 
including but not limited to claims for eminent domain, condemnation, 
adverse possession, prescriptive easement, or quiet title, among 
others. The Board and courts have recognized that state law actions 
which ``would remove the land at issue from the national railway system 
and deprive [a common carrier] of the ability to use the land to 
support its rail transportation operations'' are typically preempted. 
Skidmore, 1 F.4th at 214-15 (holding that state actions for quiet title 
and an exclusive prescriptive easement were preempted); see also City 
of Lincoln, 414 F.3d at 862 (same for eminent domain claim); Grafton & 
Upton, FD 36696, slip op. at 1 (same for eminent domain claim); 14500 
Ltd. LLC, FD 35788, slip op. at 4-5 (same for claims of adverse 
possession and exclusive prescriptive easement); Jie Ao, FD 35539, slip 
op. at 6-7 (same for adverse possession claim). But see Girard, 979 
N.E.2d at 1287 (holding that an eminent domain claim was not preempted 
where the carrier claimed a speculative future need for rail service, 
but the railroad property had remained vacant for 15 years, and the 
carrier appeared to undermine its own claim by entering into an 
agreement to sell the property for purposes unrelated to rail 
transportation).\31\ Although Board and court decisions have at times 
reviewed such exclusive takings under the ``as-applied'' standard, 
others have found preemption ``regardless of whether th[e] case is 
analyzed as `categorical' preemption [or] as `as applied' preemption . 
. . .'' Jie Ao, FD 35539, slip op. at 1. Synthesizing these analyses, 
takings of exclusive control of rail property and rights-of-way are 
best understood as categorically preempted, whereas non-exclusive 
takings may be reviewed under an as-applied approach.
---------------------------------------------------------------------------

    \31\ In Grafton & Upton, FD 36696, the Board analyzed Girard, 
distinguished it on the facts presented, and for that reason, 
determined that ``[t]he Board need not decide whether to endorse the 
court's analysis in Girard.'' Grafton & Upton, FD 36696, slip op. at 
8.
---------------------------------------------------------------------------

    The Board and courts have recognized that removal of part of the 
right-of-way or a railroad's property, including of currently unused 
property, could foreclose or unduly restrict present or future 
transportation by the rail carrier. E.g., Grafton & Upton, FD 36696, 
slip op. at 7. Rail carriers defending such cases have elaborated on 
the operational issues that may be raised by the removal of rail 
property, even when it is not being used directly. For example, rail 
carriers have expressed the importance of the property and rail yard to 
their overall network (14500 Ltd. LLC); the necessity to conduct 
maintenance or handle derailments (City of Lincoln); maintenance of 
retaining walls; and the placement of signal towers (Ala. Great S.). 
Carriers have also highlighted the potential of future use, such as for 
the planned construction of a transload facility (Grafton & Upton, 
Docket No. FD 36696); available capacity to accommodate future traffic 
growth (14500 Ltd. LLC, Ala. Great S.); and the ability to conduct 
maintenance including slope stabilization (Jie Ao). Accordingly, a 
broad array of present or future transportation-related uses could 
support a finding that attempts to take rail property are categorically 
preempted.
    Such cases can sometimes present complex policy issues. For 
example, in Wisconsin Central Ltd., a city and state department of 
transportation sought to condemn rail property in order to realign a 
highway in an effort to reduce traffic accidents. 160 F. Supp. 2d at 
1011. And in City of Lincoln, the town sought to take a strip of rail 
property to improve its storm drainage system and complete a commuter 
trail for pedestrians and bicyclists that would connect campuses at a 
state university. 414 F.3d at 859; see also Ala. Great S., FD 35196, 
slip op. at 4 (condemnation for creation of a public park with 
amphitheater, children's playground, and other features). 
Notwithstanding these worthy public purposes, both actions were held to 
be preempted by ICCTA.
3. Utilities and Pipelines Within the Right-of-Way
    The Board and courts typically view actions seeking condemnation 
for the purposes of constructing overhead or underground utilities, 
such as water or sewer lines or wire crossings, under the as-applied 
framework. The Board has determined that ``routine, non-conflicting 
uses such as non-exclusive easements for at-grade road crossings, wire 
crossings, sewer crossings, etc., are not preempted so long as they 
would not impede rail operations or pose undue safety risks.'' Maumee & 
W. R.R.--Pet. for Declaratory Ord., FD 34354, slip op. at 2 (STB served 
Mar. 3, 2004); see also City of Lincoln, 414 F.3d at 863 (addressing 
storm sewer project and noting that ``it is well established that 
nonconflicting, nonexclusive easements across railroad property are not 
preempted if they do not hinder rail operations or pose safety 
risks''). Relevant considerations include whether the facility will be 
placed in a location that would impair the railroad's use of the right-
of-way (such as by undermining the integrity of underlying real 
property) or whether the timing and duration of the activity would 
hinder the rail carrier's operations. The Board has also focused on 
whether the crossings would be on the surface level or underground, and 
the amount of access to the right-of-way that would be conferred. See, 
e.g., City of N. Chi., FD 36619, slip op. at 3-4 (acknowledging that a 
state court had already determined that a condemnation action for a 
water main easement crossing under rail property was preempted but 
providing guidance explaining that in cases where preemption is found 
the state court may be able to craft a remedy that avoids unreasonable 
interference with rail operations and would thus not be preempted); E. 
Ala. Ry.--Pet. for Declaratory Ord., FD 35583, slip op. at 6-7 (STB 
served Mar. 9, 2012) (holding that condemnation for construction of 
underground water and sewage lines was not preempted).
4. Blocked Crossings
    State and local laws that limit a rail carrier's ability to block 
at-grade road crossings have been found to be preempted in the courts, 
regardless of whether the regulations apply to moving or stationary 
trains. These laws generally attempt to regulate the amount of time 
that a train may block a road crossing and contain a variety of terms 
related to the amount of time the train may block a crossing; whether 
the train is moving or stopped; the permissible reasons for doing so; 
and various penalties. Although the Board itself has not had occasion 
to rule on any blocked crossings law outside of the permitting 
process--and thus has never resolved the issue of whether ICCTA 
preemption or FRSA preemption should apply as it pertains to blocked 
crossings--courts that have applied ICCTA preemption have regularly 
found such laws preempted. Anti-blocking laws have been found to be 
preempted by ICCTA because they ``purport[ ] to regulate rail 
transportation by dictating how railroads conduct their operations at 
crossings,'' CSX Transp., Inc. v. Williams, No. 3:16CV2242, 2017 WL 
1544958, at *2 (N.D. Ohio Apr. 28,

[[Page 70973]]

2017), including train speed and length, scheduling, the performance of 
federally mandated air brake tests, the coupling and uncoupling of 
cars, switching, repairs, safety checks, and waiting for tracks to 
clear. See BNSF Ry. v. Hiett, 22 F.4th 1190, 1194 (10th Cir. 2022) 
(``[M]any factors determine the time that a train will block a grade 
crossing, including the train's speed and length, whether the side 
track intersects the grade crossing, when a railroad schedules a train 
to pass, and the time required to comply with federally mandated tests 
and procedures.''), cert. denied sub nom. City of Edmond v. BNSF Ry., 
142 S. Ct. 2835 (2022); Elam, 635 F.3d at 807. Because such regulations 
dictate rail operations directly, courts have uniformly found them 
preempted, and their reasoning aligns with the Board's categorical 
framework. See, e.g., Hiett, 22 F.4th at 1194 (finding a blocked 
crossing statute preempted, explaining that ``it too effectively 
regulates rail operations--a task the ICCTA reserves for the STB''); 
Elam, 635 F.3d at 807 (finding a blocked crossing statute completely 
preempted because the statute directly attempted to manage the 
carrier's switching operations, including the carrier's decisions as to 
train speed, length, and scheduling); Williams, 2017 WL 1544958, at *2 
(finding a blocked crossing statute categorically preempted because it 
purported ``to regulate rail transportation by dictating how railroads 
conduct their operations at crossings'').
    In 2022, and again in 2024, the United States Supreme Court 
declined to review, respectively, a federal circuit court and a state 
supreme court decision invalidating state blocked-crossing laws as 
federally preempted, leaving those decisions in place. See City of 
Edmond, 142 S. Ct. 2835 (2022); Ohio v. CSX Transp., Inc., 144 S. Ct. 
545 (2024).
5. Pedestrian or Road Crossings of Rail Lines
    State or local laws that dictate where track crossings must be 
constructed or closed are evaluated for preemption on an as-applied 
basis. Non-exclusive easements for at-grade road crossings may be 
considered routine, non-conflicting uses of rail carrier property. See 
Wichita Terminal Ass'n, FD 35765, slip op. at 6 (citation omitted). 
State actions related to such crossings are therefore permissible if 
the actions do not unreasonably burden or interfere with rail 
transportation. Id. at 7. Because the Board utilizes an as-applied 
preemption analysis, such cases require a factual analysis of the 
specific crossing at issue. E.g., Franks Inv. Co., 593 F.3d at 415 
(requiring evidence about specific crossings at issue, rather than 
general evidence about crossings, in denying as-applied preemption 
challenge to crossing case). Such evidence can include the location of 
the crossing, present or future operational impacts on the rail 
carrier, and potential alternatives. See, e.g., Wichita Terminal Ass'n, 
FD 35765, slip op. at 9 (analyzing proposed crossing's potential 
impacts on traffic, capacity, and operations); Tri-City R.R., FD 35915, 
slip op. at 8-9 (same, including switching and storage operations, as 
well as present and future impacts). For example, in Wichita Terminal 
Association, FD 35765, the Board found that a state court order 
requiring construction of a road crossing over tracks at a specific 
location was preempted. At the same time, however, the Board noted that 
it did ``not conclude that any crossing . . . necessarily would be 
preempted,'' suggesting that an alternative location for a crossing may 
not impose the same burden or interference with rail transportation. 
Id. at 10-11; see also City of Ozark--Pet. for Declaratory Ord., FD 
36104, slip op. at 5-6 (STB served July 28, 2017) (holding that, based 
on facts presented, the city's effort to force reinstallation of a 
removed at-grade crossing would unreasonably interfere with present and 
future railroad operations and cause undue safety risks under an as-
applied preemption analysis). And a court has found that a state 
statute requiring pedestrian crossings over rail tracks was not 
preempted where operational impacts were limited by giving the 
railroads discretion as to the manner of construction. See Adrian & 
Blissfield R.R., 550 F.3d at 542.
6. Locomotive Idling
    State or local laws that regulate idling trains have been found to 
be categorically preempted. These regulations may include restrictions 
on the amount of time, hours, reasons for, or location of idling, 
including record-keeping requirements. Unlike generally applicable 
building codes, such regulations specifically target railroads and 
directly regulate rail operations. E.g., Ass'n of Am. R.Rs., 2007 WL 
2439499, at *7 (holding that rules related to railroad idling were 
categorically preempted). These laws place the state or local 
regulator, rather than the railroad, in the position to ``mak[e] 
operational decisions about when, where, and how long locomotives could 
idle.'' Delaware, 859 F.3d at 22. Therefore, regardless of the purpose 
of the state or local law, and regardless of whether the state or 
locality has attempted to narrowly tailor the law or provide 
exceptions, idling-related laws have been found to be categorically 
preempted. For example, in Delaware, a state statute generally 
prohibiting idling in residential neighborhoods at night was 
categorically preempted, even though the statute only prohibited ``non-
essential'' idling and contained exemptions for certain enumerated 
purposes, because the statute directly managed railroad operations 
regardless of its practical effect. See id.
7. Environmental Permitting, Zoning Ordinances, and Land Use Laws
    State or local permitting or preclearance requirements, including 
building permits, zoning ordinances, and environmental and land use 
permitting requirements, have been found to be categorically preempted 
as to rail carrier transportation and related infrastructure because 
ICCTA ``prevents states and localities from imposing requirements that, 
by their nature, could be used to deny a rail carrier the ability to 
conduct rail operations.'' Soo Line R.R.--Pet. for Declaratory Ord., FD 
35850, slip op. at 4 (STB served Dec. 23, 2014). Otherwise, states or 
localities could interfere with interstate commerce by denying, or 
indefinitely delaying, approval of rail projects or operations approved 
by the Board and subject to its exclusive jurisdiction. See Green 
Mountain R.R., 404 F.3d at 643; Grafton & Upton, FD 36696, slip op. at 
7 (collecting cases); CSX Transp., Inc., FD 35832, slip op. at 4 
(recognizing that state or local authority to ``deny or unreasonably 
delay'' construction and maintenance ``would irreconcilably conflict 
with the Board's authorization of those facilities and operations''). 
For example, the Board has held that a local conservation commission's 
order seeking to impose environmental permitting requirements on the 
construction of a rail carrier's transload facility was categorically 
preempted. Grafton & Upton, FD 36696, slip op. at 12. However, state 
and local regulations that have a ``more remote or incidental effect on 
rail transportation,'' have been found not to be preempted. N.Y. 
Susquehanna & W. Ry., 500 F.3d at 252 (internal citation omitted). 
Resolution of issues regarding such remote or incidental effects may 
require discussion and cooperation between communities and rail 
carriers. See Joint Pet. for Declaratory Ord., 5 S.T.B. at 508 (noting 
that some environmental requirements, such as requiring carriers to 
share their plans with the community or to submit environmental 
monitoring or testing information for an appropriate

[[Page 70974]]

period of time after operations begin, may not be preempted).
8. Noise, Smoke, Appearance, and Other Nuisance-Related Claims
    State or local regulation of nuisance-related issues, such as noise 
caused by rail operations,\32\ smoke, appearance of rail property, and 
other related matters have been found to be categorically preempted 
when related to activities under the Board's jurisdiction. These issues 
may also arise in litigation raising state or common law claims for 
nuisances caused by rail operations. See, e.g., Pace, 613 F.3d at 1068-
69 (holding that a lawsuit alleging that construction and operation of 
side track caused an increase in noise and smoke that made land 
unusable was preempted). Such state or local actions can directly 
regulate, and potentially provide remedies for, rail carrier operations 
under the Board's exclusive jurisdiction and thus may be preempted by 
ICCTA, even though ICCTA provides no remedy. See, e.g., Friberg v. Kan. 
City S. Ry., 267 F.3d 439, 443 (5th Cir. 2001) (holding that state tort 
claims related to trains on a railroad's side tracks blocking access to 
plaintiff's property were preempted, explaining that ``it is beyond 
peradventure that regulation of [the railroad's] train operations, as 
well as the construction and operation of the [railroad's] side tracks, 
is under the exclusive jurisdiction of the STB . . . .''); Lange--Pet. 
for Declaratory Ord., FD 35037, slip op. at 4 (STB served Jan. 28, 
2008) (stating that remedies for nuisance claims are preempted); Joint 
Pet. for Declaratory Ord. 5 S.T.B. at 510 (holding that a local 
ordinance declaring an automobile unloading facility to be a ``noisome 
trade'' was preempted) However, such claims may not be preempted if 
they do not directly implicate subject matter within the Board's 
jurisdiction. See Emerson, 503 F.3d at 1130-32 (holding that a 
railroad's disposal of railway ties into a wastewater drainage ditch 
adjacent to its tracks was not ``transportation'' under ICCTA and thus 
state tort claims related to flooding of adjoining property were not 
preempted).
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    \32\ Although not enforced by the Board, the Board notes that 
under the Noise Control Act of 1972, other federal agencies have 
established and enforce standards related to railroad noise which 
preempt state or local standards. See 42 U.S.C. 4916; 40 CFR part 
201; 49 CFR part 210.
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9. Design, Construction, or Maintenance of Rail Infrastructure
    State law regulations, including tort claims, that dictate the 
design, construction or maintenance of rail lines and rail 
transportation facilities under the Board's jurisdiction have been 
found to be categorically preempted. See CSX Transp. Inc., FD 35832, 
slip op. at 4-5 (collecting cases). Common cases include claims for 
damages caused by flooding or other events that claimants assert were 
caused by rail carrier infrastructure decisions, such as the design of 
bridges or embankments, materials used in construction, maintenance of 
culverts, and related operational decisions. E.g., Edwards, 983 F.3d at 
122 (preempting flooding damage claims). But see Emerson, 503 F.3d at 
1130-32 (holding that state tort claim related to flooding on 
plaintiffs' property allegedly caused by a railroad's disposal of 
railway ties into a wastewater drainage ditch adjacent to its tracks 
was not preempted because the railroad's disposal did not qualify as 
``transportation'' under ICCTA); Hatcher--Pet. for Declaratory Ord., FD 
35581, slip op. at 5-8 (STB served Sept. 21, 2012) (holding that state 
tort claims related to flooding and damage to plaintiffs' property 
allegedly caused by defendant railroads' blocking drainage 
infrastructure near the rail line during salvage operations following 
Board-authorized abandonment of the rail line were not preempted). As 
the Board has recognized, such claims can ``unduly burden interstate 
commerce and amount to impermissible state regulation of [a rail 
carrier]'s operations by interfering with the railroad's ability to 
uniformly design, construct, maintain, and repair its railroad line. 
The interstate rail network could not function properly if states and 
localities could impose their own potentially differing standards for 
these important activities, which are an integral part of, and directly 
affect, rail transportation.'' Tubbs--Pet. for Declaratory Ord., FD 
35792, slip op. at 5 (STB served Oct. 31, 2014), aff'd, 812 F.3d 1141 
(8th Cir. 2015).\33\ However, claims based on violation of FRA's 
regulations and standards would be subject to the federal harmonization 
analysis. See Tubbs, FD 35792, slip op. at 7 (declining to preempt, 
under ICCTA, claims based on uniform federal regulations under the 
FRSA).
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    \33\ The Board determined in Tubbs that the state law claims 
were preempted regardless of whether they were analyzed as 
``categorical'' or ``as-applied,'' Tubbs, FD 35792, slip op. at 4, 
though on appeal, the Eighth Circuit utilized the as-applied 
framework, see generally Tubbs, 812 F.3d. 1141.
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10. Breach of Contract
    Under 49 U.S.C. 10709, Congress has expressly provided that 
contracts between rail carriers and purchasers of rail services to 
provide such services are not subject to the rail provisions of 49 
U.S.C. subtitle IV (Part A). Because Part A of subtitle IV includes the 
preemption provision at 49 U.S.C. 10501(b), enforcement of such 
contracts in court is not preempted. Additionally, actions under state 
law for breach of a contract between a rail carrier and other parties 
are generally not preempted. As the Fourth Circuit has explained, 
``[v]oluntary agreements between private parties,'' and the 
``enforcement'' of such contracts, ``are not presumptively regulatory 
acts.'' PCS Phosphate Co. v. Norfolk S. Corp., 559 F.3d 212, 218-19 
(4th Cir. 2009) (explaining how the ``history and purpose of ICCTA . . 
. suggest that such agreements do not fall into the core of economic 
regulation that the ICCTA was intended to preempt.''). The Board has 
stated that ``voluntary agreements must be seen as reflecting the 
carrier's own determination and admission that the agreements would not 
unreasonably interfere with interstate commerce.'' Twp. of Woodbridge, 
N.J. v. Consol. Rail Corp., 5 S.T.B. 336, 340 (2000); see also Joint 
Pet. for Declaratory Ord., 5 S.T.B. at 508 (``[P]reemption provisions 
should not be used to shield a carrier from its own commitments . . . 
.''). However, depending on the facts and circumstances of a specific 
case and the degree to which a voluntary agreement unreasonably 
interferes with interstate rail operations, certain agreements may be 
subject to an as-applied preemption analysis. See Woodbridge, 5 S.T.B. 
at 340 (declining to find enforceable agreement preempted where, among 
other things, there was not evidence that enforcement of the agreement 
would unreasonably interfere with the railroad's operations); see also 
PCS Phosphate, 559 F.3d at 221 (``This is not to say that a voluntary 
agreement could never constitute an `unreasonable interference' with 
rail transportation, but the facts of this case indicate that any 
interference is not unreasonable . . . .'').
11. Routing of Traffic
    The Board and courts have found that ICCTA categorically preempts 
state and local laws that seek to regulate when and where particular 
commodities can be carried by rail. See, e.g., CSX Transp., Inc., FD 
34662, slip op. at 5 (STB served May 3, 2005). In one example, the 
District of Columbia passed a law banning transportation of certain 
classes of hazardous commodities within an area of the District without 
a permit from the DC. Department of Transportation. CSX Transp., Inc.--
Pet. for Declaratory Ord., FD 34662, slip op. at 2 (STB served Mar. 14, 
2005). The Board found that such regulation ``plainly'' fell within the

[[Page 70975]]

types of actions categorically preempted under section 10501(b), 
explaining that to the extent the DC law ``would require a permit to 
move certain rail traffic through protected parts of the City, it is 
directly covered by the categorical preemption against state and local 
permitting processes.'' CSX Transp., Inc., FD 34662, slip op. at 5 (STB 
served May 3, 2005). ``And to the extent that the D.C. Act would 
otherwise ban the specified movements, it would directly conflict with 
the Board's authority over rail operations, including matters such as 
routing over which any state action is expressly preempted by section 
10501(b).'' Id. (noting that other federal regulatory regimes may also 
apply in a complementary fashion).

V. ICCTA Harmonization Analysis for Federal Law

    By its terms, ICCTA's express preemption provision applies to 
federal, as well as state, law. 49 U.S.C. 10501(b). When, however, the 
question presented is the interaction between ICCTA and another federal 
law, the express or implied preemption framework flowing from the 
Supremacy Clause is inapplicable. The Board therefore does not utilize 
its categorical/as-applied framework in such cases, and instead follows 
the tests set forth in the federal courts to analyze whether the laws 
can be harmonized and, if not, whether the later-enacted law repealed 
the other by implication. These federal-federal conflicts have mostly 
arisen in the realms of rail safety and environmental regulation, but 
the Board would apply similar principles to other potentially 
conflicting federal laws.

A. Constitutional Framework for Harmonization Analysis

    ``When confronted with two Acts of Congress allegedly touching on 
the same topic,'' the Board \34\ and courts are ``not at liberty to 
pick and choose among congressional enactments and must instead strive 
to give effect to both.'' Epic Sys. Corp. v. Lewis, 584 U.S. 497, 510 
(2018) (citation modified). When there is an apparent conflict between 
ICCTA and another federal law, the Board or a court ``must strive to 
harmonize the two laws, giving effect to both laws if possible.'' Ass'n 
of Am. R.R.s v. S. Coast Air Quality Mgmt. Dist., 622 F.3d 1094, 1097 
(9th Cir. 2010). However, if there is a ``positive repugnancy'' or an 
``irreconcilable conflict'' between the laws, the question becomes 
whether the later-enacted statute repealed the earlier-enacted statute 
to the extent of the conflict. Matsushita Elec. Indus. Co. v. Epstein, 
516 U.S. 367, 381 (1996); Radzanower v. Touche Ross & Co., 426 U.S. 
148, 155 (1976); see also Joint Pet. for Declaratory Ord., 5 S.T.B. at 
509 n.28. Whether one law ``displaces the other'' requires ``a clearly 
expressed congressional intention.'' Epic Sys. Corp., 584 U.S. at 510. 
And where ``there is no clear intention otherwise, a specific statute 
will not be controlled or nullified by a general one, regardless of the 
priority of enactment.'' Crawford Fitting Co. v. J.T. Gibbons, Inc., 
482 U.S. 437, 445 (1987) (citation modified). Thus, the statutes are 
harmonized by giving effect to the more specific statute. See generally 
Patten v. District of Columbia, 9 F. 4th 921, 926 (D.C. Cir. 2021) 
(``In seeking to harmonize [disparate] statutes . . . [w]e are guided 
by the `old and familiar rule' that `the specific governs the general,' 
which is `particularly true' where `Congress has enacted a 
comprehensive scheme and has deliberately targeted specific problems 
with specific solutions.''') (quoting RadLAX Gateway Hotel, LLC v. 
Amalgamated Bank, 566 U.S. 639, 645-46 (2012)).
---------------------------------------------------------------------------

    \34\ The Board has previously affirmed that it, as well as the 
courts, can engage in this federal-federal harmonization and implied 
repeal analysis. Ass'n of Am. R.R.s--Pet. for Declaratory Ord. (AAR 
Declaratory Ord.), FD 36369, slip op. at 9, 12 (STB served Dec. 30, 
2020). This is because ``[t]he statute requires, in certain 
circumstances, the preemption of other federal laws and does not 
prohibit the Board from opining on its interpretation of the other 
federal laws to determine where ICCTA preemption applies.'' Id. at 
9.
---------------------------------------------------------------------------

    The Board conducts this analysis against the backdrop of the 
expansive, exclusive, and specific jurisdiction that ICCTA grants over 
transportation by rail carriers, which is the manifestation of 
Congress's intent to ensure uniform federal regulation. Ass'n of Am. 
R.R.s, FD 36369, slip op. at 14 (``Congress clearly intended that 
[section] 10501(b) preempt laws that create an irreconcilable conflict 
with the free flow of interstate commerce by imposing a patchwork of 
regulation on interstate rail transportation.''). ICCTA will often be 
the more specific statute insofar as it applies specifically to the 
rail industry, although there are numerous other federal laws related 
to the rail industry, and the Board would accord appropriate weight to 
the specificity of those laws in any harmonization analysis.\35\ See 
Pittsburgh & Lake Erie R.R. v. Ry. Lab. Executives' Ass'n, 491 U.S. 
490, 511 (1989) (discussing harmonization of the Railway Labor Act and 
Interstate Commerce Act).
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    \35\ At the time of this writing, these include, but are not 
limited to, the Railroad Retirement Act of 1974 (45 U.S.C. 231 et 
seq.); the Railway Labor Act (45 U.S.C. 151 et seq.); the Railroad 
Unemployment Insurance Act (45 U.S.C. 351 et seq.); and the Federal 
Employers' Liability Act (45 U.S.C. 51 et seq.).
---------------------------------------------------------------------------

B. Examples of Harmonization of ICCTA and Other Federal Laws

    The analytical framework for harmonization described above would 
apply in any Board analysis of another federal law for a determination 
of ICCTA preemption. There are two illustrative examples of federal 
laws that the Board has previously addressed--related to rail safety 
and environmental laws--that are discussed in more detail below. The 
Board could apply a similar analysis when presented with questions 
about the preemptive effect of ICCTA when harmonization with another 
federal law is required.
1. Harmonization With FRSA
    Congress enacted the FRSA in 1970 ``to promote safety in every area 
of railroad operations.'' 49 U.S.C. 20101. FRSA instructed the 
Secretary of Transportation, who has delegated this power to the FRA, 
to ``prescribe regulations and issue orders for every area of railroad 
safety.'' Id. 20103(a); 49 CFR 1.89(a). Under the FRSA preemption 
provision, Congress provided that ``[l]aws, regulations, and orders 
related to railroad safety . . . shall be nationally uniform to the 
extent practicable.'' 49 U.S.C. 20106(a)(1). To ensure ``[n]ational 
uniformity of regulation'' in this area, FRSA preempts state law 
obligations aimed at a ``subject matter'' addressed in regulations 
issued thereunder. Id. 20106(a)(2); see also Duluth, Winnipeg & Pac. 
Ry. v. City of Orr, 529 F.3d 794, 796 (8th Cir. 2008) (FRSA ``generally 
preempt[s] state laws covering the same subject matter'' as Department 
of Transportation (DOT) or Department of Homeland Security (DHS) 
standards).
    Nonetheless, in some limited situations, FRSA might lead to the 
patchwork of rail regulations that ICCTA is designed to avoid, because 
FRSA contains a narrow savings clause permitting states to regulate 
where FRA has not yet issued rail safety \36\ regulations covering 
``the subject matter of the State requirement.'' 49 U.S.C.

[[Page 70976]]

20106(a)(2); Duluth, Winnipeg & Pac. Ry., 529 F.3d at 796 (stating that 
FRSA ``creates a narrow exception to preemption through its savings 
clause''). FRSA also allows states to ``adopt or continue in force an 
additional or more stringent'' rail safety law or regulation, but only 
if it ``(A) is necessary to eliminate or reduce an essentially local 
safety or security hazard; (B) is not incompatible with a law, 
regulation, or order of the United States Government; and (C) does not 
unreasonably burden interstate commerce.'' 49 U.S.C. 20106(a)(2). 
Courts have interpreted the ``essentially local'' safety hazard 
requirement narrowly to address ``local situations which are not 
statewide in character and not capable of being adequately encompassed 
within national uniform standards.'' Nat'l Ass'n of Regul. Util. 
Comm'rs v. Coleman, 542 F.2d 11, 14-15 (3d Cir. 1976); see also Duluth, 
Winnipeg & Pac. Ry., 529 F.3d at 798 (collecting cases). And notably, 
the exception directly requires that such regulations must be ``not 
incompatible'' with federal laws.
---------------------------------------------------------------------------

    \36\ Certain state and local regulations that impact rail 
carriers may in reality be related to public safety, rather than 
rail safety, which could impact the Board's analysis of its 
jurisdiction and harmonization with FRSA. See Br. for United States 
as Amicus Curiae, Ohio v. CSX Transp., Inc., No. 22-459, OSG Amicus 
Brief, 2023 WL 8112708, at *14 (U.S. Nov. 21, 2023) [hereinafter OSG 
Amicus Brief] (``It is debatable whether a blocked-crossing statute 
. . . is `related to railroad safety,' 49 U.S.C. 20106(a)(1) 
(emphasis added), given that [the] safety-related concerns 
principally involve the safety of emergency-services users and other 
members of the public--not the safety of railroads and railroad 
operations.'').
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    In 2007, Congress enacted an amendment clarifying the savings 
clause in section 20106. See 49 U.S.C. 20106(b); see also Bates v. Mo. 
& N. Ark. R.R., 548 F.3d 634, 637 (8th Cir. 2008). The amendment 
specifically provided that nothing within section 20106 ``shall be 
construed to preempt an action under State law seeking damages for 
personal injury, death, or property damage'' alleging that a party: (A) 
failed to comply with an applicable Federal standard of care 
established by DOT or DHS; (B) failed to comply with its own plan, 
rule, or standard that it created pursuant to an applicable DOT or DHS 
regulation or order; or (C) failed to comply with a State law, 
regulation, or order that is not incompatible with the provisions of 
section 20106(a)(2) described above. 49 U.S.C. 20106(b).
    By contrast, ICCTA expressly overrides ``remedies provided under 
[other] Federal . . . law[s]'' to the extent of a conflict. 49 U.S.C. 
10501(b). ICCTA was enacted more recently (1995) than the authority at 
section 20103 and the savings clause at section 20106(a)(2). See In re 
Fed.-Mogul Global Inc., 684 F.3d 355, 374 (3d Cir. 2012) (citation 
omitted) (declining ``to limit the preemptive scope'' of a statute 
based on the existence of an older, narrower provision covering a 
closely related topic). And if there is a potential conflict with the 
tort law clarification to the FRSA savings clause, enacted in 2007 at 
section 20106(b), the Board could take note of the timing. See Lundeen 
v. Can. Pac. R.R., 532 F.3d 682, 688 (8th Cir. 2008) (``This 
`clarifying' amendment reflected Congress's disagreement with the 
manner in which the courts . . . had interpreted [section] 20106 to 
preempt state law causes of action whenever a federal regulation 
covered the same subject matter as the allegations of negligence in a 
state court lawsuit.'').
    The Board has said that ICCTA and FRSA should be harmonized to give 
effect to both. See, e.g., Tubbs, FD 35792, slip op. at 7. ICCTA 
primarily applies to rail transportation and operations, and FRSA 
primarily applies to rail safety. Although ``the ICCTA preemption 
provision can be read to cover virtually everything related to rail 
transportation and . . . rail safety-related claims will almost always 
touch on rail transportation and operations,'' Waneck--Pet. for 
Declaratory Ord., FD 36167, slip op. at 5 (STB served Oct. 31, 
2018),\37\ the Board has long recognized that ICCTA ``does not preempt 
valid safety regulation under [FRSA].'' Green Mountain R.R.--Pet. for 
Declaratory Ord., FD 34052, slip op. at 6 n.8 (STB served May 28, 
2002). The agencies have exercised their authority in complementary 
fashion, and when their responsibilities overlap, they have 
``coordinate[d] and cooperate[d] with each other as appropriate.'' CSX 
Transp., Inc., FD 34662, slip op. at 10 (STB served Mar. 14, 2005); see 
also Tyrrell v. Norfolk S. Ry., 248 F.3d 517, 523 (6th Cir. 2001) 
(stating that the Board's and FRA's ``complementary exercise of their 
statutory authority accurately reflects Congress's intent for the ICCTA 
and FRSA to be construed in pari materia''). And the Board ``does not 
usurp or interfere with the role of other federal agencies in 
regulating railroad safety and security and hazardous materials 
transportation under other federal regulatory statutes.'' CSXT Transp., 
Inc., FD 34662, slip op. at 7 (STB served May 3, 2005).
---------------------------------------------------------------------------

    \37\ Note, however, that the Waneck opinion described itself as 
``purely advisory guidance.'' Id. at 4.
---------------------------------------------------------------------------

    Applying these principles, the Board has determined that ICCTA 
applies to operation and construction-related claims, including state-
law tort claims alleging that a rail line was designed, constructed, 
and maintained in a way that caused flooding-related property damage. 
See Tubbs, FD 35792, slip op. at 6-7. Conversely, FRSA applies to 
primarily safety-related claims, including state-law tort claims 
related to a collision between a train and a tour bus at a railroad 
crossing, see Waneck, FD 36167, slip op. at 4 (STB served May 25, 
2018), and state regulation of the clearance distance between tracks, 
see Tyrrell, 248 F.3d at 522-24. The Board has stated that ``the 
states' ability to act with respect to railroad/highway crossings 
(including grade separations) remains undisturbed so long as their 
action does not unreasonably interfere with railroad operations or 
interstate commerce, and does not constitute regulation of the 
railroad's operations.'' Br. of Surface Transp. Bd. as Amicus Curiae, 
Iowa, Chi. & E. R.R. v. Wash. Cnty., 384 F.3d 557 (8th Cir. 2004) (No. 
03-3136), 2004 WL 6395939, at *21-23 (discussing whether law about 
redesign and replacement of bridges at crossing for safety reasons was 
subject to ICCTA preemption). And, as discussed above, the Board found 
that both ICCTA and FRSA applied to a local safety-related regulation 
limiting the shipment of hazardous materials because it affected both 
safety and the railroad's ability to carry certain commodities. CSX 
Transp., Inc., FD 34662, slip op. at 5-7 (STB served May 3, 2005).
    Thus, ICCTA and FRSA can typically be harmonized. However, issues 
may arise when a state or local safety-related law which may not be 
preempted under FRSA may still be preempted under ICCTA because such 
laws effectively manage or govern rail transportation and thus directly 
conflict with the Board's exclusive jurisdiction. Some courts have 
suggested that only FRSA preemption can apply to at least some safety-
related issues. See, e.g., Island Park, LLC v. CSX Transp., 559 F.3d 
96, 107 (2d Cir. 2009) (stating that the ``federal statutory scheme 
places principal federal regulatory authority for rail safety with the 
FRA, not the [Board],'' and so ``FRSA provides the appropriate basis 
for analyzing whether a state law, regulation or order affecting rail 
safety is pre-empted by federal law''); Tyrrell, 248 F.3d at 522-23. 
And the Board has partially endorsed the same view in non-binding 
guidance. See Waneck, FD 36167, slip op. at 5 (STB served Oct. 31, 
2018). However, as the Office of the Solicitor General recently argued 
to the Supreme Court in a case about whether states could regulate 
blocked crossings, ``FRSA cannot be read to create a loophole in the 
ICCTA that would permit a patchwork of state and local regulation over 
rail transportation simply because the regulations also happen to touch 
on `safety-related' matters.'' OSG Amicus Brief, 2023 WL 8112708, at 
*13; see also Ohio v. CSX Transp., Inc., 144 S. Ct. 545 (2024) (denying 
Ohio's certiorari petition). This is also consistent with the savings 
clause's requirement that state regulations that are in addition to or 
more stringent than DOT or DHS

[[Page 70977]]

rules governing the same subject matter must relate to an ``essentially 
local'' hazard, be ``not incompatible with'' other federal laws, and 
``not unreasonably burden interstate commerce.'' See 49 U.S.C. 
20106(a)(2)(B). Thus, even if FRSA alone does not preempt a state or 
local railroad safety regulation, ICCTA preemption may still apply if 
upholding the state or local regulation addresses a generally-
applicable concern, would be inconsistent with ICCTA, or would 
otherwise unreasonably burden rail transportation.
2. Harmonization With Federal Environmental Laws
    The Board has stated that ICCTA preemption is implicated when the 
relevant state activity was undertaken pursuant to regulations passed 
under the auspices of federal environmental statutes. This dynamic has 
arisen in two situations. First, ICCTA preemption may apply to the 
extent the state regulations would cause a ``patchwork of regulations'' 
burdening interstate commerce. See EPA Declaratory Ord., FD 35803, slip 
op. at 8. In EPA Declaratory Ord., the Board concluded that ICCTA would 
likely preempt a California air quality district's rules related to 
railroad locomotive idling and recordkeeping--even if those rules were 
approved by EPA under the CAA as part of California's state 
implementation plan ``because of the potential patchwork of regulations 
that could result.'' Id. The Board noted that it must consider ``not 
only the impact of the District's rules . . . but the fact that other 
states and local districts throughout the country could follow suit and 
adopt their own emission rules . . . leading to the lack of uniformity 
of regulation that Congress intended to preclude in [section] 
10501(b).'' EPA Declaratory Ord., FD 35803, slip op. at 8; see also id. 
at 10 (``[A]llowing states and localities to create a variety of 
complex regulations governing how an instrument of interstate commerce 
is operated, equipped, or kept track of (even if federalized under the 
CAA) would directly conflict with the goal of uniform national 
regulation of rail transportation.'').
    The Board applied the same principle in AAR Declaratory Order to 
conclude that the CWA's National Pollutant Discharge Elimination System 
(NPDES) permitting program and discharge prohibition ``would likely be 
preempted by [ICCTA] if applied to discharges incidental to the 
operation of rail cars in transit.'' AAR Declaratory Ord., FD 36369, 
slip op. at 1. Because the program was ``based on state-specific 
permitting requirements'' and ``individual permit writers . . . have 
discretion to impose [standards] more stringent than EPA guidelines,'' 
applying the program would be ``likely to result in a patchwork of 
differing regulations'' that would ``be incompatible with [ICCTA's] 
purpose of ensuring uniform regulation of rail transportation.'' Id. at 
11-12; see also id. at 13-14 (stating that ICCTA was ``arguably the 
more specific statutory provision,'' and that, to the extent the NPDES 
permitting program was ``incompatible with the purpose'' of ICCTA, the 
later-enacted statute (ICCTA) should ``be given effect'').
    Thus, similar to the unreasonable-burden prong of as-applied 
preemption, the analysis is cumulative: if applying another federal law 
or allowing claims thereunder would, in the aggregate, interfere with 
Congress's uniform regulatory scheme, ICCTA preemption is implicated. 
This suggests two important distinctions: between federal laws with one 
uniform federal standard and those that permit a patchwork of state-
promulgated requirements; and between state laws passed under color of 
federal law that apply to instrumentalities of interstate commerce in 
motion \38\ versus those applying to stationary structures. In AAR 
Declaratory Order, the Board asserted that ``[t]o the extent that EPA 
could issue a nationwide general permit for incidental discharges from 
rail cars in transit that includes uniform requirements for the states, 
such a nationwide general permit would not create a patchwork of 
differing regulations and could therefore potentially be harmonized 
with [section] 10501(b).'' AAR Declaratory Ord., FD 36369, slip op. at 
16. The Board also focused on the fact that ``rail cars in transit are 
inherently instrumentalities of interstate commerce.'' Id. at 15. 
Although ``subjecting them to differing regulatory requirements as they 
pass from one state to the next is likely to be incompatible with the 
free flow of interstate commerce that Congress envisioned when enacting 
[section] 10501(b)[,] . . . non-discriminatory application to . . . 
stationary facilities owned or operated by railroads'' may not be. Id. 
Instead, such stationary facility applications under the color of 
federal law ``are generally not preempted because, although they may 
differ from state to state, they do not typically conflict with 
[section] 10501(b)'s goal of preventing differing regulations from 
interfering with the free flow of interstate commerce.'' Id.
---------------------------------------------------------------------------

    \38\ The Board notes that a significant percentage of rail cars 
are owned by separate leasing companies or directly by shippers, 
rather than the rail carriers themselves. See Pet. 5-7, July 26, 
2021, Pet. for Rulemaking to Adopt Rules Governing Priv. Railcar Use 
by R.Rs., EP 768. This disparate ownership structure may amplify the 
effects of patchwork regulation as compliance costs are imposed on 
many different entities, ranging from large rail carriers and 
manufacturers to small shippers that own their own small fleets.
---------------------------------------------------------------------------

    Additionally, ICCTA preemption is implicated if a federal ``statute 
or regulation is being applied in a discriminatory manner, or being 
used as a pretext for frustrating or preventing a particular 
activity.'' Joint Pet. for Declaratory Ord., 5 S.T.B. at 509. In Joint 
Petition for Declaratory Order, the Board concluded that the local 
governments were ``simply using [federal environmental law] as a 
pretext to do what Congress expressly precluded: interfere with 
interstate commerce by imposing a local permitting or environmental 
process as a prerequisite to the railroad's ability to conduct its 
operations.'' Id. The local concerns appeared unfounded because neither 
EPA nor the state environmental regulator had expressed any concerns, 
and the record showed that substantial pollution was ``unlikely.'' Id. 
at 509-10.
    This is necessarily a ``fact-bound'' analysis in which the 
regulator's stated concerns ``need to be reviewed individually'' to 
determine whether they have a reasonable basis. Id. at 508-09. As in 
the preemption context, this aspect of the analysis furthers the 
congressional scheme by ensuring that seemingly neutral regulatory 
measures are not being used to target or obstruct rail operations.

VI. Conclusion

    This policy statement sets forth the Board's perspective on the 
state of the law as of the time of its issuance, acknowledging that new 
precedents from the Board and courts will further develop the law on 
STB jurisdiction and preemption. Although forthcoming cases will be 
evaluated based on their facts, circumstances, and proffered arguments, 
the Board intends for this policy statement to be beneficial and 
informative to the public about the Board's jurisdiction and ICCTA 
preemption, and to encourage the smooth flow of interstate commerce via 
the nation's rail network.

Executive Order 12866 (Regulatory Planning and Review) and Executive 
Order 14192 (Unleasing Prosperity Through Deregulation)

    Executive Order 12866, as modified by Executive Order 14215, 
provides that the Office of Information and Regulatory Affairs (OIRA) 
will review all significant

[[Page 70978]]

regulatory actions. OIRA has determined that this policy statement is 
significant under section 3(f) of Executive Order 12866. For the 
reasons discussed above, this policy statement is considered an 
Executive Order 14192 deregulatory action.

    Decided: November 2, 2026.

By the Board, Board Members Fuchs, Hedlund, Kloster, and Schultz.
Andrea Pope-Matheson,
Clearance Clerk.
[FR Doc. 2026-22811 Filed 11-6-26; 8:45 am]
BILLING CODE 4915-01-P


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