BNSF Railway says a temporary court injunction against use of its new track through the La Crosse River marsh would damage the railroad and disrupt the economy of the northern part of the country.
In documents filed this week, attorneys for BNSF challenge an order issued earlier this month by La Crosse County Circuit Judge Scott Horne, which allowed the railroad to continue construction of a second track through the marsh but restricted use of the track until legal challenges are settled in late September.
That order would have “a serious impact on interstate rail transportation, with effects that will be felt by thousands of rail customers across the northern United States,” the railroad argues.
BNSF says construction of the controversial 4-mile segment will be completed by the end of August, just in time for “fall peak” traffic season, when farmers ship their grain to market and retailers begin stocking up for the holidays.
The La Crosse project is part of the railroad’s $6 billion in network improvements scheduled this year. BNSF says it is intended to solve a bottleneck created by the longest single-track segment between the Twin Cities and Savanna, Ill.
A group of rail safety and environmental advocates led by La Crosse County Supervisor Maureen Freedland sued the Wisconsin Department of Natural Resources in March, claiming the agency granted BNSF wetland permits without adequate environmental review.
The plaintiffs say the project will result in more trains carrying explosive crude oil through the city and environmentally sensitive areas.
Horne is scheduled to rule on that case Sept. 28. A hearing on the stay is scheduled for next week.
Without use of the second track, BNSF executive Katie Farmer wrote, the railroad will struggle to meet its schedule for expedited intermodal shipments — the cargo containers that carry most of the goods that wind up on store shelves.
That, Farmer said, could result in a replay of the 2013-2014 shipping season, when grain piled up in silos and Midwestern power plants saw coal piles dwindle because of missed shipments.
But Freedland suggests BNSF is using the La Crosse bottleneck as an excuse while focusing on the rapidly expanding oil-by-rail market.
Nationwide, oil-by-rail shipments grew by more than 4,000 percent between 2008 and 2014 as new technology made it easier to extract oil from the Bakken fields of North Dakota. Last year, BNSF reported 29 to 39 fully-loaded oil trains per week moving down the Mississippi River, though more recent filings show that volume has ebbed.
“I frankly wonder about their claims that this is necessary … if they aren’t giving priority to crude,” Freedland said. “These are deliberate choices on the part of the railroad that affect transport and how goods get where they need to go.”
BNSF does not address crude shipment numbers in its court filings, focusing instead on intermodal, which it says has grown to a quarter of its total volume.
Freedland and her fellow plaintiffs have argued the expansion will result in an increase in crude and other rail traffic, putting local residents and wildlife at risk and lowering property values of thousands of homes near the tracks.
BNSF has publicly said the project is designed to improve network “fluidity” and efficiency, though the new documents show it would also increase capacity — though not by how much.
In a separate affidavit, BNSF executive Rob Reilly says the current section of single track in La Crosse limits capacity to 50 trains per day and even before the fall peak traffic BNSF “is already pushing beyond the working capacity of this line.”
As a result, Reilly says, trains are stacking up as far north as Winona while waiting to pass and often have to park when crews reach the end of their federally regulated shifts. He cites a recent example when BNSF had 67 trains on the line and 20 had to wait until the next day to get through the bottleneck.
Reilly argues the court order will adversely affect the region as parked trains block intersections and residents have to listen to idling locomotives.
BNSF also argues that Horne’s ruling is invalid because the state has no authority to regulate rail operations.
“Federal law is unambiguous on this issue,” its motion states. “(F)ederal law preempts all efforts to regulate rail transportation under state law. There is abundant case law finding that state governments and state courts cannot prohibit rail operations — for any reason.”
Freedland called that a “power grab” that has frustrated her and other local officials.
“We’ve been told over and over that the local communities have to do what the railroads want,” she said. “Otherwise they’ll call in the federal preemption card.”