The Surface Transportation Board (STB) recently announced that it is considering issuing a policy statement clarifying the scope of preemption under the Interstate Commerce Commission Termination Act of 1995 (ICCTA). This development follows a joint letter from multiple rail, intermodal, and other industry associations urging the STB to provide clearer guidance to curb inconsistent state and local regulation affecting rail operations, as well as a series of Policy Review Team meetings with interested parties to discuss ideas for breaking down regulatory barriers and furthering competition. As the STB notes, a “major theme from these meetings was the need for greater clarity and consistency in preemption.”

ICCTA preemption, which applies to both state and Federal law, supports interstate commerce by preventing a patchwork of differing regulations across states. As such, ICCTA preemption broadly prevents state and local laws from interfering with STB-regulated matters, such as rail construction, operation, and abandonment. STB’s move could shift the landscape by giving courts and stakeholders clearer guidance on the scope and application of ICCTA preemption and potentially limiting state and municipal leverage in imposing regulatory conditions, preventing or delaying rail projects.

The STB’s clarification would provide much-needed certainty on ICCTA preemption, streamlining rail project approvals and reducing litigation. Crowell’s Transportation team will continue to monitor STB action, as we expect a policy statement before the end of this year.