OCTOBER TERM, 1992
Syllabus
CSX TRANSPORTATION, INC.
v. EASTERWOOD
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 91-790. Argued January 12, 1993-Decided April 21, 1993*
After her husband was killed when a train owned and operated by
CSX Transportation, Inc., collided with his truck at a Georgia
crossing, Lizzie Easterwood brought this diversity wrongful-death
action, alleging,
inter alia, that CSX was negligent under
Georgia law for failing to maintain adequate warning devices at the
crossing and for operating the train at an excessive speed. The
District Court granted summary judgment for CSX on the ground that
both claims were pre-empted under the Federal Railroad Safety Act
of 1970 (FRSA). The Court of Appeals affirmed in part and reversed
in part, holding that the allegation based on the train's speed was
pre-empted but that the claim based on the absence of proper
warning devices was not.
Held: Under the FRSA, federal regulations adopted by the
Secretary of Transportation pre-empt Easterwood's negligence action
only insofar as it asserts that CSX's train was traveling at an
excessive speed. Pp. 661-676.
(a) The FRSA permits the States to "adopt or continue in force
any law, rule, regulation, order, or standard relating to railroad
safety until such time as the Secretary has adopted a ...
regulation ... covering the subject matter of such State
requirement," and, even thereafter, to adopt safety standards more
stringent than the federal requirements "when necessary to
eliminate or reduce an essentially local safety hazard," if those
standards are compatible with federal law and do not unduly burden
interstate commerce. 45 U. S. C. § 434. Legal duties imposed on
railroads by a State's common law of negligence fall within the
scope of § 434's broad phrases describing matters "relating to
railroad safety." The section's term "covering" indicates that
pre-emption will lie only if the federal regulations substantially
subsume the subject matter of the relevant state law. Pp.
661-665.
(b) The Secretary's grade crossing safety regulations do not
"cove[r] the subject matter" of Easterwood's warning devices claim.
In light of the relatively stringent standard set by § 434's
language and the pre-
*Together with No. 91-1206,
Easterwood v.
CSX
Transportation, Inc., also on certiorari to the same court.
659
sumption against pre-emption, the regulations of 23 CFR pt. 924
cannot be said to support pre-emption. They merely establish the
general terms under which States may use federal aid to eliminate
highway hazards, including those at grade crossings, and provide no
explicit indication of their effect on negligence law, which often
has assigned joint responsibility for maintaining safe crossings to
railroads and States. Likewise, pre-emption is not established by
23 CFR § 646.214(b)(1)'s requirement that the States comply with
the Manual on Uniform Traffic Control Devices for Streets and
Highways (Manual) and by that Manual's declaration that the States
determine the need for, and type of, safety devices to be installed
at a grade crossing. It is implausible that established state
negligence law would be implicitly displaced by an elliptical
reference in a Government Manual otherwise devoted to describing
for the benefit of state employees the proper size, color, and
shape of traffic signs and signals. Moreover, the Manual itself
disavows any claim to cover the subject matter of the tort law of
grade crossings. Finally, although 23 CFR §§ 646.214(b)(3) and (4)
do displace state decisionmaking authority by requiring particular
warning devices at grade crossings for certain federally funded
projects, those regulations are inapplicable here because a plan to
install such devices at the crossing at issue was shelved and the
federal funds allocated for the project diverted elsewhere. Pp.
665-673.
(c) Easterwood's excessive speed claim cannot stand in light of
the Secretary's adoption of the regulations in 49 CFR § 213.9(a).
Although, on their face, § 213.9(a)'s provisions address only the
maximum speeds at which trains are permitted to travel given the
nature of the track on which they operate, the overall structure of
the Secretary's regulations demonstrates that these speed limits
were adopted with safety concerns in mind and should be understood
as "covering the subject matter" in question. It is irrelevant that
the Secretary's primary purpose in enacting the speed limits may
have been to prevent derailments, since § 434 does not call for an
inquiry into purpose. Moreover, because the common-law speed
restrictions relied on by Easterwood are concerned with local
hazards only in the sense that their application depends on each
case's facts, those restrictions are not preserved by § 434's
second saving clause. Pp. 673-675.
933 F.2d
1548, affirmed.
WHITE, J., delivered the opinion for a unanimous Court with
respect to Parts I and II, and the opinion of the Court with
respect to Parts III and IV, in which REHNQUIST, C. J., and
BLACKMUN, STEVENS, O'CONNOR,
660
Syllabus
SCALIA, and KENNEDY, JJ., joined. THOMAS, J., filed an opinion
concurring in part and dissenting in part, in which SOUTER, J.,
joined,
post, p. 676.
Howard J.
Trienens argued the cause for petitioner
in No. 91-790 and respondent in No. 91-1206. With him on the briefs
were
Carter G.
Phillips, Mark E. Haddad, Jack H.
Senterfitt, and
Richard T. Fulton.
Tambra Pannell Colston argued the cause
pro hac
vice for respondent in No. 91-790 and petitioner in No.
91-1206. With her on the brief were
James 1.
Parker
and
William
Deputy Solicitor General Mahoney argued the cause for the United
States urging affirmance in both cases. With her on the brief were
Solicitor General Starr, Assistant Attorney General Gerson, William
Kanter, Paul M. Geier, and Dale C. Andrews. t
tBriefs of
amici curiae urging affirmance were filed for
the State of Ohio et al. by
Lee Fisher, Attorney General of
Ohio, and
Nancy J.
Miller, Deputy Chief Counsel, and
by the Attorneys General for their respective jurisdictions as
follows:
Winston Bryant of Arkansas,
Richard
Blumenthal of Connecticut,
Charles M. Oberly III of
Delaware,
Robert A. Butterworth of Florida,
Ronald W
Burris of Illinois,
Bonnie J.
Campbell of Iowa,
Scott Harshbarger of Massachusetts,
Hubert H. Humphrey
III of Minnesota,
Marc Racicot of Montana,
Frankie
Sue Del Papa of Nevada,
Tom Udall of New Mexico,
Ernest D. Preate, Jr., of Pennsylvania,
Dan Morales
of Texas, and
Joseph B. Meyer of Wyoming; for the American
Automobile Association by
Paul R. Verkuil; for the Railway
Labor Executives' Association by
Lawrence M. Mann; and for
Cynthia Wilson Pryor by J.
N. Raines.
Briefs of amici curiae were filed for the Association of
American Railroads by John H. Broadley, Donald B. Verrilli, Jr.,
John B. Morris, Jr., and Robert W Blanchette; for the Association
of Trial Lawyers of America et al. by Dale Haralson, Roxanne Barton
Conlin, Jeffrey Robert White, and Arthur H. Bryant; for the
American Trucking Associations, Inc., et al. by Daniel R. Barney,
David A. Strauss, Richard A. Allen, and Charles A. Webb; for the
National Conference of State Legislatures et al. by Richard Ruda
and Scott L. Nelson; for the National Railroad Passenger Corp. by
Paul F. Mickey, Jr., Alvin Dunn, and Stephen C. Rogers; and for the
Texas Class I Railroads et al. by Paul A. Cunningham, Gerald P.
Norton, Carolyn F. Corwin, and Robert Brian Burns, Jr.
661
JUSTICE WHITE delivered the opinion of the Court. Thomas
Easterwood was killed on February 24, 1988 when a train owned and
operated by petitioner and crossrespondent CSX Transportation,
Inc., collided with the truck he was driving at the Cook Street
crossing in Cartersville, Georgia. His widow, respondent and
cross-petitioner Lizzie Easterwood, brought this diversity
wrongful-death action, which alleges,
inter alia, that CSX
was negligent under Georgia law for failing to maintain adequate
warning devices at the crossing and for operating the train at an
excessive speed. The issue before the Court is the extent to which
the Federal Railroad Safety Act of 1970 (FRSA), 84 Stat. 971, as
amended, 45 U. S. C. §§421-447 (1988 ed. and Supp. II), pre-empts
these claims.
The District Court for the Northern District of Georgia granted
summary judgment for CSX on the ground that both claims were
pre-empted. 742 F. Supp. 676, 678 (1990). The Court of Appeals for
the Eleventh Circuit affirmed in part and reversed in part, holding
that respondent's allegation of negligence based on the train's
speed was pre-empted, but that the claim based on the absence of
proper warning devices was not.
933 F.2d
1548, 1553-1556 (1991). Because Courts of Appeals have differed
over the pre-emptive effect of FRSA on negligence suits against
railroads, we granted the petitions of both parties. 505 U. S. 1217
(1992).1 We now affirm.
I
FRSA was enacted in 1970 "to promote safety in all areas of
railroad operations and to reduce railroad-related accidents, and
to reduce deaths and injuries to persons .... " 45 U. S. C. § 421.
To aid in the achievement of these goals,
1 See Karl v. Burlington Northern R. Co.,
880
F.2d 68, 75-76 (CA8 1989); Marshall v. Burlington Northern,
Inc.,
720 F.2d
1149, 1154 (CA9 1983); Hatfield v. Burlington Northern R. Co.,
958 F.2d
320, 321 (CAlO 1992).
662
the Act specifically directs the Secretary of Transportation to
study and develop solutions to safety problems posed by grade
crossings. § 433. In addition, the Secretary is given broad powers
to "prescribe, as necessary, appropriate rules, regulations,
orders, and standards for all areas of railroad safety .... " §
431(a). The pre-emptive effect of these regulations is governed by
§ 434, which contains express saving and pre-emption clauses.2
Thus, the States are permitted to "adopt or continue in force any
law, rule, regulation, order, or standard relating to railroad
safety until such time as the Secretary has adopted a rule,
regulation, order, or standard covering the subject matter of such
State requirement." Even after federal standards have been
promulgated, the States may adopt more stringent safety
requirements "when necessary to eliminate or reduce an essentially
local safety hazard," if those standards are "not incompatible
with" federal laws or regulations and not an undue burden on
interstate commerce.
In 1971, the Secretary, acting through the Federal Railroad
Administration (FRA), promulgated regulations under FRSA setting
maximum train speeds for different classes of track. See 49 CFR §
213.9 (1992). Also in 1971, and again in 1972, the Secretary duly
reported to Congress on the
2 The section reads:
"§434. National uniformity oflaws, rules, regulations, orders,
and standards relating to railroad safety; State regulation
"The Congress declares that laws, rules, regulations, orders,
and standards relating to railroad safety shall be nationally
uniform to the extent practicable. A State may adopt or continue in
force any law, rule, regulation, order, or standard relating to
railroad safety until such time as the Secretary has adopted a
rule, regulation, order, or standard covering the subject matter of
such State requirement. A State may adopt or continue in force an
additional or more stringent law, rule, regulation, order, or
standard relating to railroad safety when necessary to eliminate or
reduce an essentially local safety hazard, and when not
incompatible with any Federal law, rule, regulation, order, or
standard, and when not creating an undue burden on interstate
commerce."
663
problem of grade crossings and on possible solutions.3 Congress
responded by enacting the Highway Safety Act of 1973, Title II of
the Act of Aug. 13, 1973, 87 Stat. 282, as amended, note following
23 U. S. C. § 130. This Act makes federal funds available to the
States to improve grade crossings, in return for which the States
must "conduct and systematically maintain a survey of all highways
to identify those railroad crossings which may require separation,
relocation, or protective devices, and establish and implement a
schedule of projects for this purpose." 23 U. S. C. § 130(d).
Further conditions on the States' use of federal aid to improve
grade crossings have been set out in regulations promulgated by the
Secretary through the Federal Highway Administration (FHW A) under
FRSA and the Highway Safety Act. See 23 CFR pts. 646, 655, 924,
1204 (1992). It is petitioner's contention that the Secretary's
speed and grade crossing regulations "cove[r] the subject matter"
of, and therefore pre-empt, the state law on which respondent
relies.4
Where a state statute conflicts with, or frustrates, federal
law, the former must give way. U. S. Const., Art. VI, cl. 2;
Maryland v.
Louisiana, 451 U. S. 725, 746
(1981). In the
3 See U. S. Dept. of Transportation, Railroad-Highway Safety,
Part I: A Comprehensive Statement of the Problem (1971); U. S.
Dept. of Transportation, Railroad-Highway Safety, Part II:
Recommendations for Resolving the Problem (1972).
4 The Court of Appeals found that, because the grade crossing
regulations were promulgated pursuant to the Highway Safety Act
(rather than FRSA), their pre-emptive effect is not governed by §
434.
933 F.2d
1548, 1555 (CAll 1991). As petitioner notes, this distinction
does not apply to 23 CFR pts. 646 and 1204, which were promulgated
under the authority of both statutes. See Brief for Petitioner in
No. 91-790, p. 36. In any event, the plain terms of § 434 do not
limit the application of its express pre-emption clause to
regulations adopted by the Secretary pursuant to FRSA. Instead,
they state that any regulation "adopted" by the Secretary may have
pre-emptive effect, regardless of the enabling legislation. At the
very least, the Court of Appeals' conclusion is inappropriate with
respect to regulations issued under 23 U. S. C. § 130, given that
the latter is a direct outgrowth of FRSA.
664
interest of avoiding unintended encroachment on the authority of
the States, however, a court interpreting a federal statute
pertaining to a subject traditionally governed by state law will be
reluctant to find pre-emption. Thus, preemption will not lie unless
it is "the clear and manifest purpose of Congress."
Rice v.
Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). Evidence
of pre-emptive purpose is sought in the text and structure of the
statute at issue.
Shaw v.
Delta Air Lines, Inc.,
463 U. S. 85, 95
(1983). If the statute contains an express pre-emption clause, the
task of statutory construction must in the first instance focus on
the plain wording of the clause, which necessarily contains the
best evidence of Congress' pre-emptive intent.
According to § 434, applicable federal regulations may preempt
any state "law, rule, regulation, order, or standard relating to
railroad safety." Legal duties imposed on railroads by the common
law fall within the scope of these broad phrases. Cf.
Cipollone v.
Liggett Group, Inc., 505 U. S. 504, 522 (1992)
(federal statute barring additional "'requirementes]' ... 'imposed
under State law'" pre-empts commonlaw claims); id., at 548-549
(SCALIA, J., concurring in judgment in part and dissenting in part)
(same). Thus, the issue before the Court is whether the Secretary
of Transportation has issued regulations covering the same subject
matter as Georgia negligence law pertaining to the maintenance of,
and the operation of trains at, grade crossings. To prevail on the
claim that the regulations have pre-emptive effect, petitioner must
establish more than that they "touch upon" or "relate to" that
subject matter, cf.
Morales v.
Trans World Airlines,
Inc., 504 U. S.
374, 383-384 (1992) (statute's use of "relating to" confers
broad pre-emptive effect), for "covering" is a more restrictive
term which indicates that pre-emption will lie only if the federal
regulations substantially subsume the subject matter of the
relevant state law. See Webster's Third New International
Dictionary 524 (1961) (in the phrase "policy clauses covering the
situation," cover means "to com-
665
prise, include, or embrace in an effective scope of treatment or
operation"). The term "covering" is in turn employed within a
provision that displays considerable solicitude for state law in
that its express pre-emption clause is both prefaced and succeeded
by express saving clauses. See
supra, at 662.
II
After filing an answer denying the allegations of negligence
with respect to the warning devices at Cook Street and with respect
to the train's speed, petitioner moved for summary judgment on the
ground that these claims were pre-empted. As the litigation comes
to us, petitioner does not assert that the complaint fails to state
a claim under Georgia law. The sole issue here is pre-emption,
which depends on whether the regulations issued by the Secretary
cover the subject matter of the two allegations, each of which we
may assume states a valid cause of action.5
As indicated above, the Secretary of Transportation has
addressed grade crossing safety through a series of regulations.
Each State receiving federal aid is required to establish a
"highway safety improvement program" that establishes priorities
for addressing all manner of highway hazards and guides the
implementation and evaluation of
5 Because the litigation comes to us in this posture, neither
party provides a description of Georgia statute or case law dealing
with train speeds or the duties of railroads with respect to grade
crossings. However, we note that Georgia Code Ann. §32-6-190 (1991)
provides that railroads are under a duty to maintain their grade
crossings "in such condition as to permit the safe and convenient
passage of public traffic." While final authority for the
installation of particular safety devices at grade crossings has
long rested with state and local governments, see,
e. g., §
40-6-25, this allocation of authority apparently does not relieve
the railroads of their duty to take all reasonable precautions to
maintain grade crossing safety,
Southern R. Co. v.
Georgia Kraft Co., 188 Ga. App. 623, 624, 373 S. E. 2d 774,
776 (1988), including, for example, identifying and bringing to the
attention of the relevant authorities dangers posed by particular
crossings.
666
remedial measures. 23 CFR pt. 924 (1992).6 In setting
priorities, the States are directed to consider and rank the
dangers posed by grade crossings. § 924.9(a)(4). Having developed a
program, each State must evaluate its effectiveness and costs, §
924.13, and file yearly reports with the FHW A, § 924.15.
States are subject to further regulations governing the use of
particular warning devices. For all projects, they must employ
devices that conform to standards set out in FHWA's Manual on
Uniform Traffic Control Devices for Streets and Highways (MUTCD or
Manual).7 §§ 646.214(b)(1), 655.603. In addition, for projects that
involve grade crossings "located within the limits of or near the
terminus of a Federal-aid highway project for construction of a new
highway or improvement of [an] existing roadway," see §
646.214(b)(2), or in which "Federal-aid funds participate in the
installation of the [warning] devices," regulations specify warning
devices that must be installed. See §§ 646.214(b)(3) and (4). Thus,
States must employ automatic gates with flashing light signals as
part of any improvement project that concerns a crossing that
features,
inter alia, multiple tracks, high speed trains
operating in areas of limited visibility, heavy vehicle or train
traffic, or if a diagnostic team made up of "representatives of the
parties of interest in [the crossing]," § 646.204(g), recommends
them.8 For federally funded installations at cross-
6 Parallel provisions require state programs to systematically
identify hazardous crossings and to develop "a program for the
elimination of hazards." 23 CFR § 1204.4 (1992), Highway Safety
Program Guideline No. 12(G).
7 U. S. Dept. of Transportation, Federal Highway Administration,
Manual on Uniform Traffic Control Devices for Streets and Highways
(1988). The Manual has been incorporated into federal regulations
promulgated by the Secretary. See 23 CFR §§ 655.601-655.603
(1992).
823 CFR § 646.214(b)(3) reads:
"(3)(i)
Adequate warning devices under § 646.214(b)(2) or
on any project where Federal-aid funds participate in the
installation of the devices are
667
ings that do not present the track conditions specified in §
646.214(b)(3), "the type of warning device to be installed, whether
the determination is made by a State ... agency, and/or the
railroad, is subject to the approval of the FHWA."
§646.214(b)(4).
The regulations of 23 CFR pt. 924 do not of themselves support
petitioner's claim of pre-emption. These provisions establish the
general terms of the bargain between the Federal and State
Governments: The States may obtain federal funds if they take
certain steps to ensure that the funds are efficiently spent. On
its face, this federal effort to encourage the States to
rationalize their decisionmaking has little to say about the
subject matter of negligence law, because, with respect to grade
crossing safety, the responsibilities of railroads and the State
are, and traditionally have been, quite distinct. Before the
enactment of FRSA, for example, Georgia's authority over grade
crossing improvements did not excuse a railroad's liability in
negligence for failing to maintain a safe crossing, see n. 5,
supra, just as a jury finding
to include automatic gates with flashing light signals when one
or more of the following conditions exist:
"(A) Multiple main line railroad tracks.
"(B) Multiple tracks at or in the vicinity of the crossing which
may be occupied by a train or locomotive so as to obscure the
movement of another train approaching the crossing.
"(C) High Speed train operation combined with limited sight
distance at either single or multiple track crossings.
"(D) A combination of high speeds and moderately high volumes of
highway and railroad traffic.
"(E) Either a high volume of vehicular traffic, high number of
train movements, substantial numbers of schoolbuses or trucks
carrying hazardous materials, unusually restricted sight distance,
continuing accident occurrences, or any combination of these
conditions.
"(F) A diagnostic team recommends them.
"(ii) In individual cases where a diagnostic team justifies that
gates are not appropriate, FHWA may find that the above
requirements are not applicable."
For the definition of "diagnostic team," see 23 CFR § 646.204(g)
(1992).
668
of railroad negligence bore no particular significance on the
State's safety efforts beyond that which the State wished to give
it. Certainly there is no explicit indication in the regulations of
23 CFR pt. 924 that the terms of the Federal Government's bargain
with the States require modification of this regime of separate
spheres of responsibility. And, contrary to the view of the Court
of Appeals for the Tenth Circuit, it does not necessarily follow
that "[t]he hit-or-miss common law method runs counter to a
statutory scheme of planned prioritization." Hatfield v. Burlington
Northern R. Co.,
958 F.2d
320, 324 (1992). In fact, the scheme of negligence liability
could just as easily complement these regulations by encouraging
railroads-the entities arguably most familiar with crossing
conditions-to provide current and complete information to the state
agency responsible for determining priorities for improvement
projects in accordance with § 924.9. In light of the relatively
stringent standard set by the language of § 434 and the presumption
against preemption, and given that the regulations provide no
affirmative indication of their effect on negligence law, we are
not prepared to find pre-emption solely on the strength of the
general mandates of 23 CFR pt. 924.
Likewise, the requirement that the States comply with the MUTCD
does not cover the subject matter of the tort law of grade
crossings. Petitioner's contrary reading rests primarily on
language that appears in Part VIII of the Manual, entitled "Traffic
Control Systems for Railroad- Highway Grade Crossings":
"[T]he highway agency and the railroad company are entitled to
jointly occupy the right-of-way in the conduct of their assigned
duties. This requires joint responsibility in the traffic control
function between the public agency and the railroad. The
determination of need and selection of devices at a grade crossing
is made by the public agency with jurisdictional authority. Subject
to such determination and selection, the design, installa-
669
tion and operation shall be in accordance with the national
standards contained herein." Manual, at SA-lo9
According to petitioner, the third sentence of this paragraph,
combined with the directive in 23 CFR § 646.214(b)(1) that the
States comply with the Manual, amounts to a determination by the
Secretary that state governmental bodies shall bear exclusive
responsibility for grade crossing safety.
Petitioner's argument suffers from an initial
implausibility:
It asserts that established state negligence law has been
implicitly displaced by means of an elliptical reference in a
Government Manual otherwise devoted to describing for the benefit
of state employees the proper size, color, and shape of traffic
signs and signals. Not surprisingly, the Manual itself disavows any
such pretensions: "It is the intent that the provisions of this
Manual be standards for traffic control devices installation, but
not a legal requirement for installation." Manual, at lA-4. The
language on which petitioner relies undermines rather than supports
its claim by acknowledging that the States must approve the
installation of any protective device even as the railroads
maintain "joint responsibility" for traffic safety at crossings. As
is made clear in the FHW A's guide to the Manual, the MUTCD
provides a description of, rather than a prescription for, the
allocation of responsibility for grade crossing safety between the
Federal and State Governments and between States and railroads:
9 Petitioner also notes similar language contained in the
Manual, at 8D-1:
"The selection of traffic control devices at a grade crossing is
determined by public agencies having jurisdictional responsibility
at specific locations.
" ... Before a new or modified grade crossing traffic control
system is installed, approval is required from the appropriate
agency within a given State."
670
"8A-6 Grade-Crossing Responsibility "Jurisdiction
"Jurisdiction over railroad-highway crossings resides almost
exclusively in the States. Within some States, responsibility is
frequently divided among several public agencies and the railroad."
U. S. Dept. of Transportation, Federal Highway Administration,
Traffic Control Devices Handbook (1983).
Rather than establishing an alternative scheme of duties
incompatible with existing Georgia negligence law, the Manual
disavows any claim to cover the subject matter of that body of
law.
The remaining potential sources of pre-emption are the
provisions of 23 CFR §§ 646.214(b)(3) and (4), which, unlike the
foregoing provisions, do establish requirements as to the
installation of particular warning devices. Examination of these
regulations demonstrates that, when they are applicable, state tort
law is pre-empted. However, petitioner has failed to establish that
the regulations apply to these cases, and hence we find
respondent's grade crossing claim is not pre-empted.
As discussed
supra, at 666-667, under §§ 646.214(b)(3)
and (4), a project for the improvement of a grade crossing must
either include an automatic gate or receive FHWA approval if
federal funds "participate in the installation of the [warning]
devices." 10 Thus, unlike the Manual, §§ 646.214(b)(3) and (4)
displace state and private decisionmaking authority by establishing
a federal-law requirement that certain protective devices be
installed or federal approval obtained. Indeed, §§ 646.214(b)(3)
and (4) effectively set the terms under which railroads are to
participate in the improvement of crossings. The former section
10 As petitioner has not suggested that the Cook Street crossing
is located in, or near the terminus of, a federal-aid highway
project, the issue of the proper application of 23 CFR §
646.214(b)(2) (1992) is not before us.
671
enVISIOns railroad involvement in the selection of warning
devices through their participation in diagnostic teams which may
recommend the use or nonuse of crossing gates. §§
646.214(b)(3)(i)(F) and (3)(ii). Likewise, § 646.214(b)(4), which
covers federally funded installations at crossings that do not
feature multiple tracks, heavy traffic, or the like, explicitly
notes that railroad participation in the initial determination of
"the type of warning device to be installed" at particular
crossings is subject to the Secretary's approval. In either case,
the Secretary has determined that the railroads shall not be made
to pay any portion of installation costs. § 646.210(b)(1). In
short, for projects in which federal funds participate in the
installation of warning devices, the Secretary has determined the
devices to be installed and the means by which railroads are to
participate in their selection. The Secretary's regulations
therefore cover the subject matter of state law which, like the
tort law on which respondent relies, seeks to impose an independent
duty on a railroad to identify and/or repair dangerous
crossings.
The remaining question with respect to respondent's grade
crossing claim is whether the preconditions for the application of
either regulation have been met. A review of the record reveals
that they have not. Petitioner relies on an affidavit from an
engineer for the Georgia Department of Transportation (DOT) which
was submitted in support of its motion for summary judgment. The
affidavit indicates that, in 1979-1980, the DOT decided to install
a crossing gate at the West Avenue crossing in Cartersville. That
gate could not be installed, however, without placing
motion-detection devices at four adjacent crossings, including Cook
Street. App. 16. The DOT therefore installed new circuitry at each
crossing, and subsequently installed gates at West Avenue and each
of the adjacent crossings except Cook Street. Although a gate was
also planned for Cook Street and funds set aside for the project,
no other devices were installed because the street's width required
the construction of a traffic
672
island, which in turn required city approval. When the city
declined to approve the island out of concern for the flow of
vehicular traffic, the plan for the gate was shelved and the funds
allocated for use in another project.
These facts do not establish that federal funds "participate[d]
in the installation of the [warning] devices" at Cook Street. The
only equipment installed was the motiondetection circuitry. Such
circuitry does not meet the definition of warning devices provided
in 23 CFR §§ 646.204(i) and (j) (1992).11 Petitioner nevertheless
contends that the Cook Street crossing was part of a single project
to improve the five Cartersville crossings, and that the
regulations were applicable because federal funds participated in
the installation of gates at the other four crossings. Reply Brief
for Petitioner in No. 91-790, p. 20. Neither party identifies any
statutory or regulatory provisions defining the term "project,"
although some usages cast doubt on petitioner's view. See,
e. g., 23 CFR § 646.210(c)(3) (describing the elimination of
"a grade crossing" as "the ... project"). Even if the term could be
construed to include either individual or multiple crossing
projects, it is clear that the Georgia DOT treated the installation
of warning devices at West Avenue and Cook Street as distinct
projects. Respondent's own affiant states that the cost of the
motion detector installed at Cook Street "was included in the
estimated costs proposal prepared ... for the West Avenue crossing
improvements .... " App. 17.
11 The relevant definitions state:
"(i)
Passive warning devices means those types of traffic
control devices, including signs, markings and other devices,
located at or in advance of grade crossings
to indicate the
presence of a crossing but which do not change aspect upon the
approach or presence of a train.
"(j)
Active warning devices means those traffic control
devices activated by the approach or presence of a train, such as
flashing light signals, automatic gates and similar devices, as
well as manually operated devices and crossing watchmen,
all of
which display to motorists positive warning of the approach or
presence of a train." 23 CFR §§ 646.204(i) and (j) (emphases
added).
673
Moreover, as found by the District Court, when Cartersville
scotched the plans for the Cook Street gate, "the funds earmarked
for this crossing were ... transferred to other projects. The
decision to install gate arms at the Cook Street crossing was
placed on a list of projects to be considered at a later time." 742
F. Supp., at 678. In light of the inapplicability of §§
646.214(b)(3) and (4) to these cases, we conclude that respondent's
grade crossing claim is not pre-empted.12
III
Federal regulations issued by the Secretary pursuant to FRSA and
codified at 49 CFR § 213.9(a) (1992) set maximum allowable
operating speeds for all freight and passenger trains for each
class of track on which they travel. The different classes of track
are in turn defined by,
inter alia, their gage, alinement,
curvature, surface uniformity, and the number of crossties per
length of track. See §§ 213.51-213.143. The track at the Cook
Street crossing is class four, for which the maximum speed is 60
miles per hour. Although respondent concedes that petitioner's
train was traveling at less than 60 miles per hour,13 she
nevertheless contends that petitioner breached its common-law duty
to operate its train at a moderate and safe rate of speed. See,
e. g., Central of Georgia R. Co. v.
Markert, 200 Ga.
App. 851, 852; 410 S. E. 2d 437, 438, cert. denied, 200 Ga. App.
895 (1991). Petitioner contends that this claim is pre-empted
because the federal speed limits are regulations covering the
subject matter of the common law of train speed.
12We reject petitioner's claim of implied "conflict"
pre-emption, Brief for Petitioner in No. 91-790, pp. 40-43, on the
basis of the preceding analysis. Of course we express no opinion on
how the state-law suit against the railroad should come out in
light of the decisions taken by Cartersville and the Georgia DOT
with respect to the Cook Street project.
13 Mfidavits submitted by the parties indicate that the train
was moving at a rate of 32 to 50 miles per hour.
674
On their face, the provisions of § 213.9(a) address only the
maximum speeds at which trains are permitted to travel given the
nature of the track on which they operate. Nevertheless, related
safety regulations adopted by the Secretary reveal that the limits
were adopted only after the hazards posed by track conditions were
taken into account. Understood in the context of the overall
structure of the regulations, the speed limits must be read as not
only establishing a ceiling, but also precluding additional state
regulation of the sort that respondent seeks to impose on
petitioner.
Because the conduct of the automobile driver is the major
variable in grade crossing accidents, and because trains offer far
fewer opportunities for regulatory control, the safety regulations
established by the Secretary concentrate on providing clear and
accurate warnings of the approach of oncoming trains to drivers.14
Accordingly, the Secretary's regulations focus on providing
appropriate warnings given variations in train speed. The MUTCD,
for example, requires the installation at grade crossings of
signaling devices that provide uniform periods of advance notice
regardless of train speed. Manual, at 8C-7. Likewise, as discussed
supra, at 666, automatic gates are required for federally
funded projects affecting crossings over which trains travel at
high speeds. 23 CFR §§ 646.214(b)(3)(C) and (D). Further support
for the view that the limits in § 213.9(a) were set with safety
concerns already in mind is found in § 213.9(c). Under that
section, railroads may petition for permission from the Rail-
14 See U. S. Dept. of Transportation, Railroad-Highway Safety,
Part I: A Comprehensive Statement of the Problem iv (1971) ("Nearly
all grade crossing accidents can be said to be attributable to some
degree of 'driver error.' Thus, any effective program for improving
[crossing] safety should be oriented around the driver and his
needs in approaching, traversing, and leaving the crossing site as
safely and efficiently as possible"); see also U. S. Department of
Transportation, Federal Highway Administration, Rail-Highway
Crossings Study 8-1 (1989) ("[T]he most influential predictors of
train-vehicle accidents at rail-highway crossings are type of
warning devices installed, highway traffic volumes, and train
volumes. Less influential, but sometimes significant [is] maximum
train speed .. .").
675
road Administrator to operate in excess of the maximum speed
limit of 110 miles per hour, but only upon submission of
information pertaining to the signals, grade crossing protections,
and other devices that will allow safe operation.
Read against this background, § 213.9(a) should be understood as
covering the subject matter of train speed with respect to track
conditions, including the conditions posed by grade crossings.
Respondent nevertheless maintains that pre-emption is inappropriate
because the Secretary's primary purpose in enacting the speed
limits was not to ensure safety at grade crossings, but rather to
prevent derailments. Section 434 does not, however, call for an
inquiry into the Secretary's purposes, but instead directs the
courts to determine whether regulations have been adopted that in
fact cover the subject matter of train speed. Respondent also
argues that common-law speed restrictions are preserved by the
second saving clause of § 434, under which "a State may ...
continue in force an additional or more stringent law ... relating
to railroad safety when necessary to eliminate or reduce an
essentially local safety hazard, and when not incompatible with any
Federal law, rule, regulation, order, or standard .... " The state
law on which respondent relies is concerned with local hazards only
in the sense that its application turns on the facts of each case.
The common law of negligence provides a general rule to address all
hazards caused by lack of due care, not just those owing to unique
local conditions. Respondent's contrary view would completely
deprive the Secretary of the power to pre-empt state common law, a
power clearly conferred by § 434. At the least, this renders
respondent's reliance on the common law "incompatible with" FRSA
and the Secretary's regulations. We thus conclude that respondent's
excessive speed claim cannot stand in light of the Secretary's
adoption of the regulations in § 213.9.15
15 Petitioner is prepared to concede that the pre-emption of
respondent's excessive speed claim does not bar suit for breach of
related tort law duties, such as the duty to slow or stop a train
to avoid a specific, individual
676
Opinion of THOMAS, J.
IV
We hold that, under the FRSA, federal regulations adopted by the
Secretary of Transportation pre-empt respondent's negligence action
only insofar as it asserts that petitioner's train was traveling at
an excessive speed. Accordingly, the judgment of the Court of
Appeals is
Affirmed.
JUSTICE THOMAS, with whom JUSTICE SOUTER joins, concurring in
part and dissenting in part.
I believe that the Federal Railroad Safety Act and the Secretary
of Transportation's implementing regulations preempt neither of
respondent/cross-petitioner Easterwood's state-law tort claims. I
therefore concur in Parts I and II of the Court's opinion but
dissent from the remainder.
In Part III of its opinion, the Court holds that the Secretary's
regulation setting "maximum allowable operating speeds for all
freight and passenger trains" pre-empts Easterwood's claim that CSX
"breached its common-law duty to operate its train at a moderate
and safe rate of speed" below the federally specified maximum speed
at the Cook Street crossing.
Ante, at 673 (citing 49 CFR §
213.9(a) (1992)). The Court concedes, however, that "the provisions
of § 213.9(a) address only the maximum speeds at which trains are
permitted to travel
given the nature of the track on which they
operate." Ante, at 674 (emphasis added). Likewise, CSX makes no
effort to characterize any duty to reduce speed under Georgia law
as a state-law obligation based on track safety, the precise
"subject matter" "cover[edJ" by the Secretary's speed regulation.
45 U. S. C. § 434. Indeed, CSX admits that it shoulders a state-law
duty to take measures
hazard. Reply Brief for Petitioner in No. 91-790, p. 3. As
respondent's complaint alleges only that petitioner's train was
traveling too quickly given the "time and place," App. 4, this case
does not present, and we do not address, the question of FRSA's
pre-emptive effect on such related claims.
677
against crossing accidents, including an "attempt to stop or
slow the train if possible to avoid a collision." 1 Reply Brief for
Petitioner in No. 91-790, p. 3. The Court effectively agrees, as is
evident from its decision to limit its opinion to a common-law
negligence action for excessive speed and from its refusal to
address related state-law claims for the violation of a statutory
speed limit or the failure to avoid a specific hazard. See
ante, at 675, and n. 15. For me, these concessions dictate
the conclusion that Easterwood's excessive speed claim escapes
pre-emption. Speed limits based solely on track characteristics,
see 49 CFR §§ 213.51-213.143 (1992), cannot be fairly described as
"substantially subsum[ing] the subject matter of ... state law"
regulating speed as a factor in grade crossing safety.
Ante,
at 664.
The Secretary's own explanation of his train speed regulation
confirms my view that the federal speed standard does not pre-empt
state regulation of train speed as a method of ensuring crossing
safety. When the Secretary promulgated his speed regulation in
conjunction with a set of track safety standards, he declined to
consider "variable factors such as population density near the
track" because these matters fell "beyond the scope of the notice
of proposed rule making." 36 Fed. Reg. 20336 (1971). See also id.,
at 11974 (notice of proposed rulemaking).2 By contrast, the state
law support-
1 See generally Ga. Code Ann. § 46-8-190(b) (1992) (requiring an
"engineer operating [a] locomotive" to "exercise due care in
approaching [a] crossing, in order to avoid doing injury to any
person or property which may be on the crossing");
Georgia
Railroad &
Banking Co. v.
Cook, 94 Ga. App.
650, 651-652, 95 S. E. 2d 703, 706-707 (1956);
Atlantic Coast
Line R. Co. v.
Bradshaw, 34 Ga. App. 360, 129 S. E. 304
(1925).
2 I reject the Solicitor General's contention that "[t]he
Secretary has concluded that reduced train speeds do not represent
an appropriate method of preventing crossing accidents." Brief for
United States as
Amicus Curiae 29. The very source cited in
support of this proposition states that "[i]f a collision [at a
crossing] seems unavoidable," a locomotive engineer "must decide
whether the train should be slowed or put into emergency mode."
Rail-Highway Crossings Study, Report of the Secretary of
Transportation to the United States Congress 5-10
678
Opinion of THOMAS, J.
ing Easterwood's excessive speed claim would impose liability on
CSX for "operating [a] train at a speed that was greater than
reasonable and safe" at a crossing "adjacent to a busily traveled
thoroughfare." App. 4-5. Because the Secretary has not even
considered how train speed affects crossing safety, much less
"adopted a rule, regulation, order, or standard covering [that]
subject matter," Georgia remains free to "continue in force any
law" regulating train speed for this purpose. 45 U. S. C. §
434.
Only by invoking a broad regulatory "background" can the Court
conclude that "§ 213.9(a) should be understood as covering the
subject matter of train speed with respect to track conditions."
Ante, at 675. It rests in part on the Manual on Uniform
Traffic Control Devices for Streets and Highways, which has no
pre-emptive effect by its own terms or under the federal
regulations requiring compliance with it. See
ante, at
668-670; 23 CFR § 646.214(b)(1) (1992) (permitting "State
standards" to "supplemen[t]" the Manual). The Court goes so far as
to rely on a federal crossing gate regulation that concededly does
not govern the Cook Street site. Compare
ante, at 674
("[A]utomatic gates are required for federally funded projects"),
with
ante, at 672 ("These facts do not establish that
federal funds 'participate[d] in the installation of the [warning]
devices' at Cook Street") (quoting 23 CFR § 646.214(b)(3)(i)
(1992)). Rather than attempt to excavate such scant evidence of
pre-emption, I would follow the most natural reading of the
Secretary's regulations: The Federal Government has chosen neither
to regulate train speed as a factor affecting grade crossing safety
nor to prevent States from doing so. The Court's contrary view of
these regulations' pre-emptive effect may well create a
jurisdictional gap in which States lack the power to patrol the
potentially hazardous operation of trains at speeds below the
applicable federal limit.
(Apr. 1989). The Secretary's original declaration that he did
not consider crossing safety concerns therefore stands
uncontradicted.
679
Had the Secretary wished to pre-empt
all state laws
governing train speed, he could have more explicitly defined the
regulatory "subject matter" to be "cover[ed]." Doubtless such a
decision would be true to Congress' declared intent that "laws,
rules, regulations, orders, and standards relating to railroad
safety shall be nationally uniform to the extent practicable." 45
U. S. C. § 434. To read the Secretary's existing maximum speed
regulation as encompassing safety concerns unrelated to track
characteristics, however, negates Congress' desire that state law
be accorded "considerable solicitude."
Ante, at 665. The
"historic police powers of the States" to regulate train safety
must not "be superseded ... unless that [is] the clear and manifest
purpose of Congress."
Rice v.
Santa Fe Elevator
Corp., 331 U. S.
218, 230 (1947). Respect for the presumptive sanctity of state
law should be no less when federal pre-emption occurs by
administrative fiat rather than by congressional edict. See
Fidelity Fed. Sav. &
Loan Assn. v.
De la
Cuesta, 458 U. S.
141, 153-154 (1982).
I would uphold Easterwood's right to pursue both of the
common-law tort claims at issue. Accordingly, I respectfully
dissent from the Court's conclusion that the excessive speed claim
is pre-empted.
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