The East Palestine Disaster One Year Later

Biden has yet to visit East Palestine but is expected to do so this month. When he does, he should denounce Norfolk Southern’s avarice from the site of the train wreck.

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Feb 07, 2024

Drone footage shows the freight train derailment in East Palestine, Ohio, on February 6, 2023. (Photo: National Transportation Safety Board)

The featured topic of this week’s newsletter is the one-year anniversary of the East Palestine disaster. Before we get to that, we’d like to briefly address another issue.

President Joe Biden should immediately pardon Charles Littlejohn, the former Internal Revenue Service (IRS) contractor who was sentenced recently to five years in prison. His crime? Leaking ex-President Donald Trump’s tax records to The New York Times and those of Jeff Bezos, Elon Musk, and other billionaires to ProPublica. Wealthy people who steal billions of dollars from the U.S. public with impunity should be penalized. The whistleblower who exposed how they do it should be praised for his courage.

It’s incredibly telling—and shameful—that Attorney General Merrick Garland’s Justice Department sought the maximum punishment for Littlejohn while slow-rolling the federal case against Trump for spearheading the multifaceted effort to overturn his loss in the 2020 election, which culminated in the deadly January 6 insurrection. Is disciplining Littlejohn really more of a priority for Garland than holding a would-be dictator accountable for organizing a coup? The DOJ ought to focus on the threat from elites like Trump, not making an example out of whistleblowing crimes committed to reveal behavior so shocking that even our generally shameless elites are highly embarrassed by its disclosure.

Biden is surely aware that making corporations and the super-rich pay their fair share—through targeted tax hikes and stronger enforcement—is overwhelmingly popular. If the president visibly intervenes to protect Littlejohn, he would send an unmistakable message to voters that he is on the side of working people, not wealthy tax cheats—a crucial task ahead of the 2024 election. If Biden is hesitating for fear of the right-wing outcry that would ensue, he shouldn’t; the spectacle of Trump enablers (who continue to support a man facing 91 felony charges) becoming indignant over the pardoning of a tax fairness whistleblower would only strengthen Biden’s case.

And yes, we understand that Trump would claim to be a victim of such a pardon. It’s that inevitable clash which makes a pardon not only warranted but a winning move. Unlike wonky analysis of how Biden’s renewed funding of the IRS is improving the collection of taxes the rich regularly avoid, Trump attacking Biden on the topic of the tax returns of elites like him would actually make the taxes not paid by the rich a central narrative in the United States in an election year.

We turn our attention now to East Palestine.

Cleaning Up Messes That Are “100% Preventable” vs. Preventing Future Messes

On the night of February 3, 2023, a Norfolk Southern-owned cargo train carrying hazardous materials careened off the tracks in East Palestine, Ohio, a small town bordering Pennsylvania. Some overturned tank cars caught fire and some spilled their contents onto the ground, after which the harmful substances flowed into local waterways and seeped into the soil.

Fearing a catastrophic explosion, public officials ordered thousands of people living in the vicinity to evacuate and on February 6 conducted a controlled release and incineration of vinyl chloride, a known human carcinogen, from five tank cars—creating an ominous plume of black smoke. Authorities on February 8 told those who had fled their homes that it was safe to return despite lingering concerns about air, soil, and water pollution.

Debate persists about the necessity of the chemical vent and burn. What seems certain is that communication between key stakeholders could have been better. In June, it was revealed that while Norfolk Southern said the procedure was necessary, the company that owned the vinyl chloride en route said it wasn’t. That latter information never reached the local fire chief, who said he was given just 13 minutes to make a final call on whether to approve the process. One year later, local residents are still suffering amid the toxic aftermath and remain worried about long-term health effects.

In the days and weeks following the derailment, members of Congress on both sides of the aisle vowed to enact stronger rail safety measures to prevent similar calamities from occurring in the future. No such legislation has been passed, however, because several Republican lawmakers wavered as soon as industry cash started flowing their way. (The Intercept reports that some Senate Republicans “haven’t looked” at the Railway Safety Act). Meanwhile, the number of derailments reported by the country’s five Class 1 freight railroad companies has increased over the past 12 months. It’s a miracle that none of them has unleashed a comparable amount of noxious compounds and fumes. But that’s a matter of luck—and luck runs out.

We know the GOP has failed to do right by the people of East Palestine (and by extension, has failed to mitigate the dangers faced by millions of Americans who live near railroads). But how has the Biden administration responded so far? And what actions does it still need to take to address ongoing risks to public and environmental health in East Palestine—and to protect other places threatened by the nation’s highly consolidated freight rail industry?

A White House fact sheet published last week touts the Biden administration’s contributions to the ongoing cleanup effort. The Department of Transportation (DOT), Environmental Protection Agency (EPA), Department of Health and Human Services (HHS), Federal Emergency Management Authority (FEMA), and other federal agencies joined state and local officials on the ground in East Palestine within hours of the derailment.

Since then, multiple HHS agencies have conducted public health testing, offered technical assistance, and provided resources to people in need. On February 21, the EPA ordered Norfolk Southern to clean up the mess on its own dime. In the intervening months, substantial amounts of contaminated soil and wastewater have been disposed of, and thousands of air, soil, and water samples have been taken (though there are sharp disagreements over the quality of the evidence, interpretations of it, and messaging about it). As the operation proceeds, the EPA continues to direct and supervise Norfolk Southern and its contractors while doing community outreach. Executive Order 14108, issued by the White House on September 20 to “ensur[e] the people of East Palestine are protected now and in the future,” instructs several departments to provide Biden with reports updating him on the status of their efforts.

The cleanup and communications surrounding it have faced significant criticism. This is unsurprising given that public officials’ assurances that residents “are not in danger from contaminated drinking water, soil, or air” don’t correspond with symptoms they’ve experienced and don’t assuage their fears of deleterious consequences manifesting in the years to come. Another sticking point was the EPA’s decision to wait until March 2 to require Norfolk Southern to test for dioxins (a potent byproduct of chemical burning), as well as the agency’s initial lack of transparency about their prevalence in the area. It took until October 2, almost six months after the crash, for the EPA to provide a report summarizing its (mainly positive) findings to the public. In addition, there is controversy surrounding some of the contractors Norfolk Southern has hired to collect data from the environment and people’s homes. One of them—the Center for Toxicology and Environmental Health—has been sued in the past for its conduct.

So far, Biden has rejected the state of Ohio’s request for a major disaster declaration. But pursuant to E.O. 14108, FEMA Administrator Deanne Criswell has designated Jim McPherson to serve as a Federal Disaster Recovery Coordinator. In this role, McPherson is tasked with overseeing long-term recovery efforts in communities harmed by the derailment in East Palestine. This includes identifying “any unmet needs that are not addressed by Norfolk Southern and would qualify for federal assistance.”

Making East Palestine whole is essential, but what about addressing root causes to fend off additional catastrophes? As Jennifer Homendy, chair of the National Transportation Safety Board (NTSB), which is independent of the DOT, said during a February 23 press conference announcing the initial findings of the NTSB’s ongoing probe into the derailment: “This was 100% preventable. We call things accidents. There is no accident. Every single event that we investigate is preventable.”

Buttigieg Must Restore the Brake Rule Nixed by Trump

It’s imperative to remember that the fiery train crash—and ensuing burnoff of carcinogenic petrochemicals—could have been averted. As our executive director Jeff Hauser said soon after the transportation disaster began: “The Obama administration attempted to prevent dangerous derailments like the one in East Palestine by mandating better brake systems on freight trains. But this effort was watered down thanks to corporate pressure, first by writing in many exemptions to the proposed rules and then, under Trump, by repealing the requirement altogether.”

Early reporting by The Lever showed that in the immediate wake of the derailment, U.S. Transportation Secretary Pete Buttigieg made no moves to reinstate or strengthen the Electronically Controlled Pneumatic (ECP) brake rule rescinded by the Trump administration and in fact was considering an industry-backed proposal to weaken remaining safeguards. The Lever also pointed out that the train in question was not being regulated as a high-hazard flammable locomotive even though it was clearly both high-hazard and flammable. As Jeff noted at the time, “These types of failures to protect the public are invited by perpetual lax enforcement and laziness toward even getting back to the too-low regulatory standards under Obama.”

Jeff urged Buttigieg to “call out the brake rule repeal for the horrendous decision it was, start working to implement a new rule, take Norfolk-Southern to task, and push back on corporations deciding how the Department of Transportation regulates them.” “Anything short of that,” he warned, “only signals to the railroads that this type of incident will be tolerated.”

How is Buttigieg doing? He’s certainly talking the talk. For instance, when the DOT on February 21 unveiled its plan to crack down on rail operators and protect the well-being of workers and communities nationwide, Buttigieg declared that “profit and expediency must never outweigh the safety of the American people,” and added, “we… are doing everything in our power to improve rail safety.”

However, the agency has yet to revive—let alone improve—the ECP brake rule eliminated by Trump’s transportation secretary, Elaine Chao. Unfortunately, this is but one example of how Buttigieg is not walking the walk.

To be fair, Homendy has said that the East Palestine derailment still would have happened if the abandoned brake rule had been in place. Because the train that derailed was considered—against the NTSB’s recommendations—a mixed freight train instead of a high-hazard flammable train, it wouldn’t have been required to have ECP brakes under the jettisoned regulation. The NTSB’s investigation is ongoing, with a final report not expected for a few more months, but the preliminary report it published last February blamed the crash on an overheated wheel bearing.

Nevertheless, in a country that is home to nearly 1,500 derailments per year, that is beside the point. Even if the forsaken ECP brake rule alone wouldn’t have staved off the derailment in East Palestine, requiring high-hazard flammable trains (HHFTs) to be equipped with 21st-century (rather than Civil War-era) braking technology would prevent other disasters. And redefining the HHFT category to include a broader array of freight trains (encompassing, for example, all locomotives carrying vinyl chloride, among other hazardous cargo) would prevent even more damage. To make things easier, the government could mandate that every train is equipped with ECP brakes.

There’s no excuse for Buttigieg to delay any further on this rulemaking. Speaking of other disasters waiting to happen, Biden still needs to nominate an administrator to lead the DOT’s Pipeline and Hazardous Materials Safety Administration. Again, there’s no excuse; he’s had three years in the White House and one year since East Palestine made this a prominent issue.

The DOT’s Federal Railroad Administration, to its credit, is assessing the compliance of each Class 1 rail carrier with existing regulations, a move that comes after it scrutinized Norfolk Southern’s reckless disregard for safety. That’s a good start, but there’s much more that Biden himself can and should be doing to vilify freight industry malfeasance.

Biden Should Condemn Corporate Greed in East Palestine

It was a strategic blunder for Biden to let Trump beat him (and Buttigieg) to the scene of the crime in East Palestine. While it’s clear that Trump’s “attempt to portray himself as a friend of the town and as someone who would have stood up to Norfolk Southern... couldn’t be further from the truth,” as More Perfect Union argued last year, the perception that he cares is important.

Of course, as Philadelphia Inquirer columnist Will Bunch observed ahead of Trump’s February 22 press conference in the Ohio village, “if residents of East Palestine—a modern news desert of downsized or disappeared news sources, which allows misinformation to fester—truly knew the reality, a delegation of townsfolk would likely greet Trump with tiki torches and pitchforks.” Bunch was referring to Trump’s destructive deregulatory legacy, which goes far beyond the rollback of a single brake rule.

It could have been Biden, rather than Bunch, discussing how Republicans’ life-threatening disdain for regulating corporations (justified through a deeply flawed cost-benefit calculus) puts millions of Americans in harm’s way on a daily basis. But for reasons that remain unclear, the president has yet to visit East Palestine (and he even neglected to mention the derailment in his 2023 State of the Union address, delivered just four days after the train crash). Biden said last March that he was going to travel to East Palestine “at some point.” That time seems to be nearing, as the president recently accepted an invitation from the town’s mayor to visit this month.

When Biden finally does make an appearance, he needs to not only empathize with residents who feel disrespected by his prolonged absence but also attack Norfolk Southern for causing so much pain by prioritizing profits over people. As my colleague Emma has argued at length, Biden has much to gain from picking fights with specific white-collar criminals who routinely exploit workers and the environment.

Norfolk Southern CEO Alan Shaw is the perfect corporate villain for Biden to make an example of. For inspiration, Biden should rewatch the March 9 Senate hearing on East Palestine, during which Sens. Bernie Sanders (I-Vt.) and Jeff Merkley (D-Ore.) grilled Shaw. The wealthy executive’s refusal to abandon precision-scheduled railroading—the profit-maximizing scheme that forces fewer workers to handle longer trains in less time—and halt stock buybacks made him look like the out-of-touch robber baron that he is. According to More Perfect Union, payouts to Norfolk Southern's shareholders surged by more than 4,500% over the past 20 years, from $101 million in stock repurchases and dividend bumps in 2002 to $4.7 billion in 2022.

If Biden were to denounce Shaw’s support for Wall Street-backed policies that make the nation’s railroads more dangerous, the Norfolk Southern CEO would likely try to defend himself. This would be ideal. Our theory of corporate crackdown holds that these battles should be public and prolonged, not one-off tweets. Highly visible and drawn-out skirmishes would allow the president to tell a compelling story about how concentrated economic and political power is hurting ordinary people and to contrast his pro-worker orientation to Trump’s agenda, which would create more East Palestines and otherwise make life hellish for the vast majority.

Shaw might protest that his company was the only Class 1 railroad to report a decrease in derailments over the past year. There’s no need for Biden to fall for this. The president could point out that last year’s decline followed a decade in which Norfolk Southern’s accident rate outpaced those of its peers.

Maybe Shaw would have the audacity to mention all the money his multibillion-dollar corporation is spending on environmental remediation, temporary relocation assistance, legal fees, and other costs related to the crisis it unleashed. Fine. That’s when Biden should cite last week’s report from Public Citizen, which showed that Norfolk Southern still had enough resources at its disposal to spend $2.3 million on federal lobbying in 2023—a 30% increase over the $1.8 million it spent in 2022. (And keep in mind lobbying expenses that are disclosed are always the tip of the iceberg when it comes to a corporation’s total expenditures seeking to influence political outcomes).

Let that sink in. In the wake of the East Palestine catastrophe, Norfolk Southern is intensifying its efforts to thwart stronger regulation. As The Lever noted, last year’s lobbying expenditure “is nearly five times the amount Norfolk Southern has pledged to protect drinking water around East Palestine.” That’s morally repugnant. And it’s exactly the kind of thing Biden should bring up during his visit to show the town’s residents that he’s on their side and will fight for them.

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