Railroad Regulation and Regulatory Litigation

Sidley is a leader in helping clients navigate the complex regulatory landscape governing the rail industry. We regularly represent clients in proceedings before federal regulators such as the Surface Transportation Board (STB), the Federal Railroad Administration (FRA) and other units of the Department of Transportation (DOT), including rulemakings, complaint proceedings, transactions, environmental and safety matters and requests for approval or authorization. Our team includes the former general counsel of the STB, the former Director of the STB’s Office of Proceedings, and other lawyers with substantial experience representing clients before federal agencies.

We regularly advise railroads and investors in the rail industry on governing regulations and issues relating to implementation and compliance, including licensing issues, safety regulations, common carrier obligation, and federal preemption issues.

We have an extensive practice before the STB, the primary economic regulator of the rail industry. Our lawyers have represented clients in a variety of STB proceedings, including transactions, rate reasonableness cases, unreasonable practice cases, service complaints, challenges to railroad tariffs, abandonments and discontinuances of rail lines, preemption disputes, rulemakings and public hearings.

Our team represents clients before units of the DOT, including the FRA and the Pipeline and Hazardous Materials Safety Administration. Our DOT representations have included rulemaking proceedings, Positive Train Control compliance, safety violations, Railroad Rehabilitation and Improvement Financing (RRIF) loan requests and environmental review.

Our team also advises clients with regard to investigations and recommendations issued by the National Transportation Safety Board.

We also have significant experience representing railroads in high-stakes appeals on a wide range of issues. These cases combine our transportation practice’s deep subject-matter knowledge with our appellate group’s elite written and oral advocacy. In recent years, we have represented transportation-industry clients in state appellate courts, federal courts of appeals, and the U.S. Supreme Court. These appeals have addressed many topics, including administrative-law challenges to federal agency action, federal preemption of state regulation on a variety of subjects, federal preemption of state common law, and Federal Employers’ Liability Act (FELA) claims, including preclusion by other federal statutory regimes.

Strong leadership in advising clients has earned us acknowledgement in numerous industry publications. Our firm has received a “Band 1” ranking from Chambers USA for Transportation (Rail) every year since 2006, and we have been described as “true experts in the field of transportation law.” According to Chambers USA 2023, we are “one of the premier firms in the railroad space” and have an “esteemed transportation practice noted for its representation of a significant tranche of railroad industry clients across the USA. Offers expertise in all regulatory, financing and environmental matters and regularly represents clients before the Surface Transportation Board.”

We have recently handled a number of major regulatory matters and regulatory litigation, such as representing:

• CSX Transportation, Inc. in STB litigation over terms for a proposed new Amtrak service between Mobile and New Orleans.
• CN is STB proceeding relating to interchange dispute with another carrier, successful appeal of an initial STB decision, and post-remand proceedings.
• Railroads in multiple cases challenging the reasonableness of railroad rates, including Consumers Energy Co. v. CSX Transp., STB Docket No. NOR 42142; TPI v. CSX Transp., STB Docket No. NOR 42121; Sunbelt v. Norfolk Southern Ry., STB Docket No. NOR 42130; and DuPont v. Norfolk Southern Ry., STB Docket No. NOR 42125.
• New passenger operators in proceedings seeking authority to operate.
• Railroads in multiple significant rulemakings, including STB proceedings regarding rate reasonableness procedures, arbitration rules, demurrage and accessorial charges, revenue adequacy, commodity exemptions, cost of capital calculations, and reciprocal switching rules.
• Railroads in STB proceedings related to service issues, including public hearings, information requests and complaint proceedings.

Some recent examples of our appellate work for transportation clients include:

• Norfolk S. Ry. v. Dille Rd. Recycling, LLC, 94 F.4th 517 (6th Cir. 2024), successfully overturning an adverse district court decision granting a neighboring landowner a prescriptive easement over rail-corridor property on preemption grounds.
• Mallory v. Norfolk S. Ry., 600 U.S. 122 (2023), addressing whether a state can assert general personal jurisdiction over any foreign corporation registered to do business there.
• Wis. Central Ltd. v. Surface Transp. Bd., 20 F.4th 292 (7th Cir. 2021), successfully vacating an agency decision addressing common-carrier railroads’ traffic-interchange obligations.
• Skidmore v. Norfolk S. Ry., 1 F.4th 206 (4th Cir. 2021), securing a precedent-setting ruling that property-law claims aimed at railroad facilities can be removed to federal court under complete ICC Termination Act preemption.
• BNSF Ry. & Union Pac. R.R. v. Cal. Dep’t of Tax & Fee Admin., 904 F.3d 755 (9th Cir. 2018), securing a precedent-setting ruling that a per-rail-car fee on hazardous materials transportation was federally preempted.