Chemical Spills and Spillover Effects: Legal Responsibility, Ethics, and Accountability in the East Palestine Train Derailment

By Sajan Srivastava 

Sajan Srivastava is a sophomore from Piedmont, California, studying Economics.

The February 2023 derailment of a freight train in East Palestine, Ohio, raises profound  questions of who bears the legal, ethical, and practical responsibility for the environmental disaster. The Ohio Department of Natural Resources has estimated that the disaster, which released such toxic chemicals as vinyl chloride, has so far killed roughly 43,000 fish within a 5-mile radius of the derailment site. Considering that the city’s streams connect to the nearby Ohio River through five streams, it is abundantly clear that any hazardous chemicals released in the derailment have the potential to affect communities and ecosystems far beyond East Palestine and even Ohio. Nine states border the Ohio River watershed, and the river’s drainage into the Mississippi River poses a threat to the economic state of much of the country [1]. With the dangers of the released chemicals to humans unclear, it remains ambiguous whether government agencies can ethically advise residents to return to their homes and where the liability for potential damages to public health and economic well-being ultimately falls.

The issue with assigning legal liability lies in the fact that the freight rail industry and the federal government are deeply intertwined. Norfolk Southern, the company whose train caught fire and subsequently derailed in East Palestine, is an independent corporation with public shareholders; however, its safety standards are regulated by the Surface Transportation Board and the Federal Railroad Administration, both of which are governmental agencies [2]. According to Ian Naish, a former safety investigator for the Transportation Safety Board of Canada, Norfolk Southern had been engaging in cost-cutting practices without adequately considering the risk associated with them. For example, the train had 149 cars, one less than the Association of American Railroads deems “very long”. This measure, which increases the momentum of the train, has the potential to impart more substantial damage if something goes wrong. In addition, one of the cars involved in the derailment did not meet the standard required for strength, given its chemical contents [3]. It seems apparent that Norfolk Southern did not fully adhere to safety protocols and played a role in escalating the impact of the incident. 

Yet, deficiencies in the safety regulations that are in place to prevent such incidents also have exacerbated the situation. For example, a safety regulation requiring some freight trains to have updated braking systems was repealed in 2018. In another instance, the Transportation Department found that the Federal Railroad Administration’s regulations regarding hazardous materials were insufficient in 2016, leading to a substantial increase in violations involving hazardous materials [4]. While several railroad companies – including Norfolk Southern – lobbied for the deregulation that enabled these weak policies, the federal government still bears the responsibility of setting safe standards; since the train’s routing began in Illinois, the Commerce Clause of the U.S. Constitution holds the federal government accountable to regulate it [5]. 

Environmental officials in Ohio have called on the state Attorney General’s office to bring forth civil actions against Norfolk Southern [7]. Moreover, the Environmental Protection Agency (EPA) has already posited that Norfolk Southern will be responsible for environmental mitigation efforts, invoking the Comprehensive Environmental Response, Compensation, and Liability Act. In late February, the Agency ordered the company to not only determine the extent of soil and water contamination but also reimburse the EPA for all cleaning, testing, and decontamination efforts that follow [6]. The EPA’s actions suggest that the federal government intends to devoid itself of as much responsibility as possible for the derailment and implicitly places the liability for the entire derailment on Norfolk Southern. However, it may be difficult to disentangle the legal liability for the cleanup efforts from that of the derailment itself. The issue at hand becomes murkier when considering the fact that other government agencies, such as Governor Mike DeWine’s office, have insisted that the impact on residents is negligible and vouched for the lack of hazardous conditions in the town, despite ongoing water monitoring. It is possible that government agencies are promoting an expeditious return to normalcy while leaving the liability for health damages to Norfolk Southern [1]. 

Further complicating matters, the thousands of lawsuits filed against Norfolk Southern have crossed state lines; due to East Palestine’s location on the border with Pennsylvania, the company has fielded claims from residents in both states. As such, the jurisdiction of the lawsuits is also ambiguous. In November 2022, the Pennsylvania Supreme Court heard the case of Mallory v. Norfolk Southern Railway Co., in which Robert Mallory, a former employee of Norfolk Southern, had filed a lawsuit against the company in Pennsylvania for exposure to toxic chemicals, despite the fact that he had only worked in Virginia and Ohio. Mallory was able to do so because Pennsylvania has a unique code that gives the state judicial branch the authority to exercise its jurisdiction over “foreign corporations”. The case raised the question of whether one may file a lawsuit in any state that has such jurisdiction. The Pennsylvania Supreme Court has deemed this unconstitutional, determining that Norfolk Southern should not be required to oppose the suit in Pennsylvania; however, the U.S. Supreme Court will soon hear the appeal case. In the East Palestine derailment, it is clear that the train would have eventually passed through Pennsylvania land had the derailment not occurred. However, the fact that the derailment occurred just before suggests that the Supreme Court’s ruling in Mallory v. Norfolk Southern Railway Co. could radically shape the validity of the lawsuits filed in Pennsylvania [9]. 

A freight train derailment in Paulsboro, NJ, in 2012 involving the same toxic chemical released in East Palestine provides some precedent for the upcoming legal proceedings. Following that incident, Paulsboro residents attempted to sue railroad company Conrail for the health consequences and economic losses incurred by the chemical spill and subsequent evacuation of the town. In that case, Conrail had elected to engage in individual private settlements with over 70% of Paulsboro residents, which prevented those residents from engaging in further legal action against the company. As a result, a federal judge determined that there was insufficient evidence of “unreimbursed, nonmedical expenses” from the remaining plaintiffs, thus making it difficult to determine whether the losses came as a direct result of Conrail’s negligence, eliminating the possibility of a class action suit [8]. 

Ultimately, the consequences of the derailment may not be determined in the foreseeable future. Due to the complex geographic, political, and legal consequences of the incident, there exist conflicts of interest among each of the involved parties who seek to absolve themselves of the responsibility for the disaster and the community's health. It is undoubtedly vital that a thorough analysis of the impacts on environmental and public health is  conducted without further delay. Yet, state and federal agencies appear determined to subject Norfolk Southern to legal punishment before any conclusions can be drawn. The return to the East Palestine community seems premature without any conclusive testing results. Both Norfolk Southern and the government bear the responsibility to compensate the community for the damages and ensure that the region is safe from contaminants, but the escape from liability appears to be taking precedence over adherence to their ethical duty.

References
[1]https://www.usatoday.com/story/graphics/2023/02/17/train-derailment-ohio-explained-graphics/11251530002/
[2]https://www.encyclopedia.com/social-sciences-and-law/economics-business-and-labor/businesses-and-occupations/norfolk-southern-corp
[3]https://www.nytimes.com/2023/02/17/business/energy-environment/norfolk-southern-derailment-safety.html
[4]https://www.independent.co.uk/news/world/americas/us-politics/ohio-train-derailment-cause-b2283433.html
[5]https://constitution.congress.gov/browse/essay/artI-S8-C3-1/ALDE_00013403/#:~:text=The%20Commerce%20Clause%20gives%20Congress,a%20source%20of%20federal%20power[6]https://www.epa.gov/newsreleases/epa-orders-norfolk-southern-conduct-all-cleanup-actions-associated-east-palestine#:~:text=WASHINGTON%20%E2%80%94%20Today%2C%20the%20U.S.%20Environmental,Palestine%2C%20Ohio%2C%20train%20derailment
[7] https://www.cnn.com/2023/02/24/us/ohio-train-derailment-east-palestine-friday/index.html
[8]https://www.thedailyjournal.com/story/news/local/new-jersey/2014/08/21/judge-limits-lawsuits-nj-train-derailment/14384907/
[9]https://www.oyez.org/cases/2022/21-1168#:~:text=Norfolk%20Southern%20Railway%20objected%20to,The%20Pennsylvania%20Supreme%20Court%20affirmed 

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.