This week, NRDC and two of our environmental justice allies—East Yard Communities for Environmental Justice and Center for Community Action and Environmental Justice—filed a lawsuit against BNSF and Union Pacific, the two largest freight moving railroad companies in the country. This lawsuit targets diesel pollution created by seventeen yards in the state. Our lawsuit has received significant coverage, including in the LA Times and Associated Press.
We brought this lawsuit because there is a better way to move freight in this country. Millions of Californians are exposed to toxic levels of pollution from BNSF and UP’s operations. The California Air Resources Board (CARB) has found that communities even 8 miles away from some of BNSF and UP’s rail yards suffer from increased cancer risk. These health impacts are created by diesel exhaust emitted by the trucks, trains, and other vehicles and equipment that are used to move cargo in and out of BNSF and UP’s facilities. Almost every week, the scientific community releases new studies showing the toxicity of diesel exhaust, which is associated with premature death, cancer, cardiovascular and respiratory disease, and even obesity and diabetes. Some researchers have even found a correlation between diesel exhaust and premature birth and lower IQ in children. Communities closest to rail yards, and particularly kids and the elderly, are the most susceptible.
Our lawsuit is precedent setting because it asks a court to recognize that diesel particulate matter is a hazardous waste under the federal Resource Conservation and Recovery Act. RCRA provides for comprehensive regulation of solid and hazardous waste, and protects public health and the environment from “imminent and substantial endangerment.”
BNSF and UP do not deny that they are making people sick. Instead, the railroads have stated in response to our lawsuit that our case unreasonably attacks the goods movement industry, and that the railroads are in compliance with existing regulations. They even play the victim and say that we fail to acknowledge everything they have done to clean-up their operations.
First, despite any clean-up initiatives the railroads have adopted, CARB data reveals that the health risks for communities near rail yards still remain unacceptably high. Neither BNSF nor UP can deny this. Let’s take BNSF’s San Bernardino rail yard as an example. This is one of the yards that BNSF will say it is working with the state to clean-up. However, data from the state indicates that even after all of BNSF’s mitigation measures are implemented, communities close to that yard still face a cancer risk in 2015 that is nearly 50 times greater than what the Ports of Los Angeles and Long Beach say is acceptable for freight projects. And in 2020, that risk remains high—nearly 30 times greater than what the ports deem tolerable. So, let’s be serious. BNSF can’t expect to be congratulated when their “best efforts” yield these levels of toxic pollution.
Second, the railroads have a menu of pollution-control solutions at their fingertips. For starters, the railroads should be expeditiously modernizing their locomotives and equipment. Older locomotives and equipment are extremely polluting and need to be replaced with cleaner models. We are asking the court to require BNSF and UP to invest in cleaner equipment and bring those replacements into urban rail yards immediately to provide relief to fence line communities. The railroads continue to use old, inefficient, polluting equipment as a cost-cutting measure, moving the health costs of their operations onto communities. That’s unacceptable. Let me be clear: we are NOT asking the court to shut the rail yards down. We’re asking for clean-up measures that have already been demonstrated at many rail yards (even by BNSF and UP) without disruption.
Third, BNSF and UP say that they are already complying with environmental regulations. This is misleading. Rail yards as “facilities” are not regulated. There is zero oversight over them. The railroads don’t need a permit to emit pollution the way a refinery or power plant does. As a result, no one is looking at the totality of emissions from all the trains, all the trucks, and all the equipment at each facility. That’s the problem and that’s what this lawsuit targets.
Fourth, our “attack” on BNSF and UP is warranted. One of UP’s yards is just 350 feet from Stevens Middle School in Long Beach. Communities close to rail yards are needlessly subsidizing the costs of shipping TVs and tennis shoes with their health. CARB has concluded that for every $1 spent to clean-up pollution from this industry, the state gets up to $8 back in health impacts avoided. So, when people ask if now is the right time to bring this lawsuit given our country’s economic turmoil, my response is that it’s the perfect time and it’s long overdue.
Every day we hear about new environmental hazards—risks from using cell phones, mercury in fish, and BPA in baby bottles. Sometimes I feel like my world is caving in and that that there is no safe space to hide. I often feel like I don’t know what hazard I should deploy my resources towards first in order to protect my family. With that said, what’s particularly sad for families in San Bernardino, Commerce, West Long Beach and the multitude of other communities near rail yards is that while they can use earpieces to talk on their phones, avoid eating fish and buy glass bottles, they can’t avoid breathing. They inhale toxic diesel fumes as they walk to the bus stop, play at school, and sit on their porch on a hot summer’s night. There is no safe space for these families to hide. That is why this mess needs to be cleaned up, and cleaned up now.