Union Pacific, BNSF Threatened With Nuisance Suits From Environmental Extremist Organization 'Natural Resources Defence Council'

Union Pacific's North Yard, Denver, CO: Photo- Chicago Super Chief

A so-called environmental group operating under the moniker of the Natural Resources Defense Council has sent letters threatening a federal lawsuit to two of the Wests largest railroads on Tuesday.

The Natural Resources Defense Council sent letters to Union Pacific Corp. and Burlington Northern Santa Fe Railway, saying it will file a lawsuit within 90 days under the Resource Conservation and Recovery Act, which regulates hazardous solid waste disposal. The letter cited rail yards across California from Oakland to San Bernardino.

In what could be a precedent-setting lawsuit, the council argues that minute particles in diesel air pollution, which include lead, cadmium, nickel and other toxic elements, are solid waste. If successful, such a suit could open the door for legal action against similar air pollution sources such as ports, airports or anywhere with a lot of diesel equipment, [emphasis mine- NANESB!] said David Pettit, a senior attorney with the council.

"I think the reason why other people haven't tried it is on first glance you would think that the emissions are a gas and RCRA doesn't apply to gases," Pettit said. "The fallacy with that is the exhaust has two components: one is a gas and the other component is a solid and those solids will kill you if you inhale enough of them."

The railroads carry cargo throughout the country after it's imported from Asia. Millions of cargo containers on trucks and trains travel by freeway and railway through Southern California.

Southern California air quality regulators recently announced a major study focusing on a San Bernardino rail yard that has been found to pose the greatest health risk of any rail yard in the state. The two-year study will cost an estimated $846,000, and researchers are hoping it will determine if there is a higher asthma and fatal cancer rate in the surrounding community.

The letter recommends a series of remedies for the pollution including the use of cleaner locomotives, electrifying rail lines in urban areas and reduced idling

That last sentence sort of gives away the fact that this threatened lawsuit won't be about the harmful particulates in diesel exhaust, since their suggestion to electrify railroads in urban area would require that a power plant be constructed to provide the lines with electricity. So if they had their way per this threatened lawsuit, they would electrify urban rail lines to prevent diesel exhaust, but what about the air quality around the power source?

And as you can imagine, electrification isn't cheap. Couple that with the upcoming $13 billion PTC mandate that is supposed to be implemented by 2015, and the railroads will inevitably have to to pass the cost along to the consumer.

According to a 2008 American Association of Railroads study, rail freight fuel efficiency had improved 3.1% since 2006 and nearly 85% since 1980, with a ton of freight moving as far as 436 miles per gallon of fuel (as impressive as that is, barges are reportedly even more fuel efficient). Both the Union Pacific [NYSE: UNP] and BNSF have been using genset locomotives in yards and in local service in compliance with local clean air regulations in places like Texas and California.

Also, the railroad industry is one of the few sectors of the economy that seems to be hiring right now. Yet despite all the apparent pluses the rail industry has going for it in this down economy, the NRDC decided to undertake a series of frivolous lawsuits as a trial balloon to go after airports, trucking and shipping- by their own admission.

At face value, if the NRDC chooses to bring this suit to trial it should be laughed out of the courtroom by the presiding judge. However, I would not put it past this cabal of latter-day luddites to effectively shop around for a sympathetic judge to bring the suit before.

The NRDC has also mounted an opposition campaign to TransCanada's [NYSE: TRP] Keystone XL pipeline that would carry oil sands from Alberta to refineries in Texas.

It's probably worth noting that one of the founders of the NRDC, John Bryson, is the current Obama Administration nominee to head the Commerce Department. Bryson left the group in the mid 1970s and after time with Edison International [NYSE: EIX], he became CEO of Brightsource Energy and described by the Wall Street Journal as 'somebody with a talent for scoring government subsidies'.