Transport: Blame it on Lawyers

TORONTO, ONTARIO - During my trip over the holidays, not a single leg occurred as scheduled. Every single air leg was re-scheduled or canceled as a result of winter weather or general airline incompetence. A road trip to visit my grandparents took much longer than it normally would have because all the mountain passes were closed, necessitating a detour through the Columbia River gorge for the second straight year. Even my warm-weather leg from Sunnyvale to Placerville, California was subject to delays--my bus from Stockton to Sacramento was held for a late connecting train, which itself had been held in Bakersfield for a late bus from Los Angeles.

The transportation meltdown has been especially pronounced this season in the Pacific Northwest. A series of snowstorms battered Washington and surrounding states for the second half of December, resulting in many of the delays that I experienced, and now that everything is melting, flooding has caused an even wider paralysis--until just a few hours ago, Interstate 5 and the BNSF Railway had been closed between Seattle and Portland for several days. The only realistic way to get between those two cities was by air (and, for once this season, the airlines were operating normally), since the mountain passes were closed as well.

It seems a legitimate question why Interstate freeways--originally conceived as a part of a national defense system--should be so vulnerable to flooding. There are perpetual flooding candidate locations along I-5 in the Chehalis, Washington area where the lanes could be raised and flood culverts installed if it were chosen to spend the money to protect against these rare events (that seem to be not-so-rare as the years pass). In this time of fiscal stimulus, perhaps that kind of project can be made "shovel-ready" in time to capture some Federal dollars.

On the Amtrak side of the equation, the passenger carrier is at the mercy of the freight railroad that owns the line, which in Washington state means BNSF. For many years, the BNSF had a policy that after any weather-related incident which disrupted the track structure--usually a mudslide--the line affected could not have passenger trains operated on it until no further incident occurred for 48 hours. In other words, freight trains could operate for almost two days before another passenger train would be allowed, leaving passengers stranded. The policy has had an adverse impact not only on Amtrak but on the Sounder commuter trains that operate between Everett, Seattle, and Tacoma, Washington.

Clearly, if other trains are operating, then it would be physically possible to operate the passenger trains--in fact, it must be safe, or the railroad would not put its own train crews at risk. Even if the freight carrier is allowed to clear a backlog of profitable freight trains before running passenger trains again--an argument whose legitimacy could be argued when taxpayer dollars have been spent to upgrade the tracks to handle additional passenger trains--that rarely would take two days. Something else is causing the BNSF to not allow the passenger trains to operate.

It turns out that something is liability. If BNSF allows the operation of a passenger train and a weather-related accident occurs, then it is open to lawsuits, and their lawyers determined that the 48-hour policy was required to demonstrate commitment to a safe operating environment. Never mind the people that cannot get to work because their commuter train isn't operating for two days while the trains carrying their garbage to the landfill are running. At some points, the BNSF has claimed that it was a Federal Law as reported in this article (or maybe the reporter just made a mistake), but no such law seems to actually exist.

There are plenty of other reasons to be upset with trial lawyers. I am still amazed about the things that I was able to do in Australia on tourist railroads and even in public parks that would never be allowed in the United States because of the potential liability. Specialized doctors quit their practices because they can't afford the insurance, we can't swim while a boat race is occurring, fences have to be placed in unsightly locations to prevent people from entering property and injuring themselves ("no trespassing" signs are not enough), we can't run excursion trains unless covered by Amtrak's insurance policy, the list could go on for paragraphs. The fact that public transportation is being shut down when it is needed most--during times when other forms of travel may not be practical--is yet another reason that legal reforms are required in the United States.

The "California Zephyr" may never be trapped on Donner Pass the way the "City of San Francisco" was in January 1952 thanks to modern policies necessitated by liability concerns, but routine travel in the wake of seasonal weather will be impeded.