Passenger Trains > Should the FRA, EPA etc have so much power?

The New York Times has an interpretive article this morning about an arcane aspect of the regulatory climate.  In the US, Congress passes bills, and the president signs them into law.  Then it's up to the various regulatory agencies like the Federal Railroad Administration, Environmental Protection Agency, Federal Communications Commission, Bureau of Reclamation, Veterans Administration, Federal Reserve, etc to create regulations to enforce the laws.  The problem happens when Congress writes ambiguous laws, or regulators decide to reach beyond the letter of the law and write regulations they feel embrace the intent of Congress. Or their own views.

Surface Transportation Board, FRA, National Labor Relations Board, Social Security Adminisration, etc are all in the reg-writing business.  The issue is that federal courts have deferred to reg writing agencies when the law is not clearly specific. So, the FRA sets policy for BNSF, KCS, etc. That's called the Chevron precedent, after an early win by the oil company over an environmental group.  When companies or unions or interest groups take the agency to court, the court often defers to the regulatory agency's views. Congress many over rule that agency by passing a specific law.

The Gorsuch hearings will focus on that precedent today. Jusge Gorsuch believes that the court should always have the right to review and define unclear law. Not the regulatory agencies. Whether the courts can interpret ambiguous laws any better or more consistently than the regulators is up for grabs.  While the obvious answer would be for Congress to write clear, specific law, that's not likely to happen. And hasn't happened over much of the past 40 years.

It will be an interesting hearing, with importance to railroad workers, retirees, etc.

Chevron Deference

Legislative bodies seldom wish to get into minutiae of writing technical regulations, so they legislate broad intent, with language that "the ABC Administration shall promulgate regulations to implement this law."  Of course, death is in the details and implementation of such regulations is the one place where the Executive Branch of government (which is where administrative agencies reside) can shape policy.  That latitude can be well or ill-used, and some administrations  thoroughly abuse that discretion  (and the Obama Administration was one of the worst ever about abusing that discretion).  One of the functions of the judiciary branch is to reign in regulations that clearly go beyond the intent of the law.   In a previous career, I used to write regulations and draft some legislation, and walking the fine line between interpreting intent and writing clear legal language that can clearly express legislative intent is a huge challenge.  Then, of course, the political process can change that careful wording into something much less clear and--purposely or accidentally--completely change the intent of the law.  As the old saying goes, one should never watch sausage or law being made.

As to Mr. Gorsuch, he is the son of the late Anne Gorsuch Burford, who was Administrator of the EPA in the Reagan Administration.  His mother and stepfather (Bob Burford, "Burf," who I knew personally), were pretty staunch political conservatives, as is he.  That said, from what I've read, Mr. Gorsuch is well respected as a jurist, even by those who hold a different political point of view.     



Edited 1 time(s). Last edit at 03/23/17 07:37 by WW.

Lackawanna484 Wrote:
-------------------------------------------------------
> The New York Times has an interpretive article
> this morning about an arcane aspect of the
> regulatory climate.  In the US, Congress passes
> bills, and the president signs them into law. 
> Then it's up to the various regulatory agencies
> like the Federal Railroad Administration,
> Environmental Protection Agency, Federal
> Communications Commission, Bureau of Reclamation,
> Veterans Administration, Federal Reserve, etc to
> create regulations to enforce the laws.  The
> problem happens when Congress writes ambiguous
> laws, or regulators decide to reach beyond the
> letter of the law and write regulations they feel
> embrace the intent of Congress. Or their own
> views.
>
> Surface Transportation Board, FRA, National Labor
> Relations Board, Social Security Adminisration,
> etc are all in the reg-writing business.  The
> issue is that federal courts have deferred to reg
> writing agencies when the law is not clearly
> specific. So, the FRA sets policy for BNSF, KCS,
> etc. That's called the Chevron precedent, after an
> early win by the oil company over an environmental
> group.  When companies or unions or interest
> groups take the agency to court, the court often
> defers to the regulatory agency's views. Congress
> many over rule that agency by passing a specific
> law.
>
> The Gorsuch hearings will focus on that precedent
> today. Jusge Gorsuch believes that the court
> should always have the right to review and define
> unclear law. Not the regulatory agencies. Whether
> the courts can interpret ambiguous laws any better
> or more consistently than the regulators is up for
> grabs.  While the obvious answer would be for
> Congress to write clear, specific law, that's not
> likely to happen. And hasn't happened over much of
> the past 40 years.
>
> It will be an interesting hearing, with importance
> to railroad workers, retirees, etc.
>
> Chevron Deference

While the obvious answer would be for
> Congress to write clear, specific law, that's not
> likely to happen.

This, unfortunately, is not an obvious answer.  It is frequently difficult or impossible to predict what a law needs to contain in order to be clear and specific.  Not all manifestations of a policy are clear at the outset.  And, even if they were more clear, and statutes could reflect that, the political process frequently eschews clarity, and favors ambiguity.  Many laws only get passed because it is not entirely clear what they do, and various parties can (simultaneously!) think that they "won" on the policy -- or at least have another shot at gaining favor for their interpretation at the administrative agency level.

Meanwhile, things frequently turn out different than expected.  The founding fathers clearly intended Congress to be the most powerful body in the federal government, with the president to be a weak executive tasked primarily with carrying out the policies set by Congress.  Over the centuries, power has shifted to the executive branch, and as was pointed out, increasingly to an administrative state that is in many ways aloof even from the presidency and the more standard "executive branch", like the Cabinet.  This gets us the "deep state", which has the advantage of acting as a check on unbridled presidents, and that can be a good thing.

Respectfully, it is a real stretch to say this has anything to do with trains.  There are other forums better suited to this.

I deal with this constantly at work, wandering through the confusing and often contradictory maze of environmental definitions (what's a hazardous waste, what constitutes disposal, can this stuff be landfilled, heat treated, solidified, incinerated, and on and on).  It's confusing to me, and I've been on the bureaucrat's side of the table for the last couple decades.  Before that, from the company's side (especially small companies that only interact with the bureucracies occasionally) it was often bewildering.

Some observations:

First, in most cases, you don't want congressmen writing the kind of detail that goes into regulatory law.  Most of our reps are lawyers, very few are scientists or engineers, and quite a few are not even minimally literate in the sciences or economics. Their staffs often aren't, either.  I meet with them frequently, so I'm not just making this up.  So having the agencies flesh out vaguely written statutes is inevitable.  The process of issuing regulations, though, allows lots of opportunities for the affected communities (especially large companies and their lobbyists) to make their opinions known.  And yes, that process sometimes results in regulations that the authors of the original bill did not anticipate. 

For example, the notion that the Clean Air Act of 1970 allows EPA to regulate carbon emissions would have been a complete surprise to the congressmen that wrote the bill or to Richard Nixon, who signed it.   (Don't jump too hard on me here--I strongly support limitations on carbon emissions, but Congress clearly doesn't, and it's a hell of a stretch to find authority for limitations in actual law).  Reverse examples also exist, where corporate pressure on the agencies has effectively neutered the effect of what was intended as landmark legislation.

And even if our congressmen were noble geniuses**, nobody can forsee all the complexities that will come down the road as new technologies develop, as new economic realities emerge, as the country changes in all kinds of ways.  Some degree of flexibility is essential.

There is a very strong tendency for the courts to defer to the agencies when it comes to the nuts and bolts details of writing and applying regulatory law.  We bureaucrats lose challenges in court on procedural grounds all the time, but very rarely do we get a technical call reversed.  Personally, I think that deference to us technical eggheads has been taken too far.

What I took out of Gorsuch's performance was that he thinks there should be a role for judges in second guessing the detailed calls made by the agencies.  My more left-leaning friends are alarmed by that, especially when spoken by a conservative, but I'm not.  Not at this stage, anyway.  Technocrats should NOT be the final word on what amounts to questions of judgement, not in all areas, anyway.

I don't have any direct experience with FRA regs or DOT, but people I work with do.  And they paint a picture of internal workings at their agencies that's quite close to what my life is like.



** ( this is a theoretical case only, I have no anticipation that honest and competent people will form a majority in any legislative body)

Radar: Not a strech at all. Want to understand why STB or FRA has such purview of railroad matters as they do? This is why in a nutshell. All of the discussion about PTC here on TO, for example, goes back to FRA's rulemaking powers. Want to really understand how government works and touches your life -- and every railroader's work every day? Then understand the regulatory process.

MC
Muskegon, Michigan

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Edited 1 time(s). Last edit at 03/22/17 09:48 by ironmtn.

Most of the problems comes from command and control legislation drafted by congress.  Regulators usually do a better job of balancing cost-benefit.  Stuff like PTC isn't an FRA problem, it's a congress problem.  In fact the FRA had been resisting NTSB calls for PTC for years because they understood the realities of the technology.

There is hardly any industry in the United States that has been so affected by law and regulation, both to its benefit and detriment, as the railroad industry.  Like it or not, government legislation and regulation is as much a part of the railroad industry as track, cars, and locomotives.  Law and regulation has shaped nearly every aspect of railroading--where the railroads go, what they can or can not haul (both by regulation and economics), the specification for track and equipment, who can work for them--how those workers are compensated, even their retirement plan, and thousands of other laws and regulations that affect the railroads--and how effectively their competitors can operate in competition against them.  So, I believe such discussions as these are both appropriate and necessary on a forum dedicated to railroading.



Edited 1 time(s). Last edit at 03/22/17 10:11 by WW.

Everything the FRA does (to narrow the topic to railroads) arises from a delegation of authority from Congress pursuant to statute or the inherent power of the executive branch. On occasion, an aggrieved party has challenged an action by a government agency or even the very existence of the agency in federal court as unconstitutional. Almost always, such challenges are rejected by the courts who ultimately consider this the will of the American people as expressed by the people they elected to Congress. The Constitution itself is mostly silent on the matter. 

This is definitely not the site for such a discussion. Many TO users lack any understanding of law and the regulatory process and even some have no understanding of passenger trains. I would respectfully suggest such discussions be held outside of this forum because all too often it descends into a fact free political dispute rather than focusing on passenger trains.

As someone who worked at FRA and OSHA HQs during the Reagan and Bush 41 administrations duirng the '80s, there is something called the regulatory process that must be followed.
Many hearings are held and the Office of Management and Budget represents the current administration in these
efforts, wielding a heavy hand in making them reflect the views of whomever is president. Lobbyists spend as much time on this process as they do lobbying Congress.
It is all a very long ways from faceless bureaucrats wearing green eyeshades in back rooms....

Bill Deaver
Tehachapi, CA

Crikey this is extremely..... zzzzzzzzzzz...anyway it's the railroads who have all the power....thousands of locomotives.... some active, some undergoing maintenance, some in storage, new ones being delivered....stop me if this is getting dull.



Edited 1 time(s). Last edit at 03/22/17 11:55 by exhaustED.

Will said Reindeer and you have had your experiences with getting rail bills passed in California.

Just because it doesn't have a picture of a train doesn't mean it isn't railroad related.  I think the title of the thread is not misleading, if it doesn't interest you don't read it.  I personally find these discussions interesting.

Cole42 Wrote:
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> Just because it doesn't have a picture of a train
> doesn't mean it isn't railroad related.  I think
> the title of the thread is not misleading, if it
> doesn't interest you don't read it.  I personally
> find these discussions interesting.

I think many people would argue it isn't about railroads per se....therefore belongs on another forum....or at least in a section entitled 'random bowlocks' as opposed to 'passenger trains'.

Dachinghwa Wrote:
-------------------------------------------------------
> This is definitely not the site for such a discussion. Many TO users lack any understanding of law and the regulatory process and even some
> have no understanding of passenger trains.

> I would respectfully suggest such discussions be held outside of this forum because all too often it
> descends into a fact free political dispute rather than focusing on passenger trains.

So far its been pretty respectful and enlightening... some of us (this writer included) actually learn from listening to those with experiences we haven't had. 
 

This is not the forum to be dicussing this.

G.F.P.
Baltimore

SamRae Wrote:
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> This is not the forum to be dicussing this.
>
> G.F.P.
> Baltimore

Respectfully, I disagree.

Since you chose not to clarify your reasons, I shall clarify mine:

This thread is a fully topical -- and impressively cool-headed & polite -- exploration of the *unavoidable political forces* which mold and shape *the entire industry* of railroading, both passenger and freight. That is 100% relevant, and I hope that an unbiased review of this thread should make that clear to anyone who's presently unsure.

Despite being an informed observer of and sometimes participant in the industry's regulatory intricacies for over three decades, I have learned a few new shadings of hard facts in this thread and I credit my fellow Trainorders members for that. Bravo, kameraden! :)

While I typically come to Trainorders for much more lightweight railroad-related content (keeping my avocation away from my vocation is wise as well as healthy), the appearance of this topic is an interesting surprise and I'm in favor of it.

By all means, let's please allow the thread to continue.

As descibed to me by a few individuals in the upper echalons of the BLE Legislative office, in today's highly techical world, it's impossible for any one congressman (House and Senate) to become thoroughly knowledgeable in any one particular field of endeavor, so congress passes enabling legislation which sets upper and lower limits which the techno-bureaucrats must use for formulating regulations. The bureaucrats can't exceed these parameters, so asserting that the "regulators decide to reach beyond the letter of the law" is misleading, frequently inflammatorily so. In order to promulgate regulations which do exceed the parameters of the original enabling legislation, the passage of new legislation incorporating the expaned parameters is necessary, and only Congress can do that.

For example, congress passed a law which said, exxentially, "FRA, make locomotive headlights safe". So the FRA publishes its intent to do so in the Federal Register and invites comments, which includes convening a series of RSAC meetings for input from the railroad industry, tourist lines, rr museums, the public, etc. After this, it writes up the proposed regulations and publishes them in the Federal Register, after which there is a window of opportunity for more comments. Once the commenting process has been completed, the FRA formalizes the proposed regulations and publishes them in the Register, at which point they take on the force of law. It's a time consuming process.

If after several years, the FRA's analyses demonstrate that these headlight regs, which have been so laboriously arrived at, haven't been good in enough preventing crossing fatalities, it can reopen the process described above to formulate revised regs which are slightly different than what had been in force. However, what the FRA cannot do is come up with a new set of regs which fall outside the parameters of the enabling legislation.

Now we have arrived at the conservative's bone of contention: what was "legal" with regard to headlights before the most recent RSAC process is no longer "legal" afterwards, even though the new regs fully comply with the original legislation passed by congress. This constitutes a rather misleading use of the word "lgeal" for the purpose of inflaming everyone's emotions. Needless to say, for those of us who now must spend lots of $$$ to change the headlights on our locomotives, the revised regs can be really annoying.

As for those who think judges "legislate", phooey. All they do is interpret the law, the principle of judicial review: "It is emphatically the province and duty of the Judicial Department to say what the law is.", which is from US Supreme Court Chief Justice John Marshall wrote in the majority opinion of the 1803 Marbury v Madison decision, the first time an act of Congress was declared unconsittutional.

To put the current political controversies in perspective, FDR (a Democrat!!!) became so incensed that the (conservative leaning at the time) Supreme Court declared a lot of his New Deal legislation unconstitutional, that he tried to pack it in his favor by expanding the number of justices. He didn't pull it off, and it created a big hub-bub at the time. Sound familiar? As Yogi Bera uses to say, "It's deja-vu all over again."

It is often the belief that a regulation exceeds the law that gets the reg challenged. That court challenge gets us back to the court deferring to the regulators.

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