BNSF does not have the authority to determine what is enforceable or unenforceable under federal law / Letter to the Blaine City Council, Paula Rotundi

bnsf reaches out to blaine fb

August 14, 2016  Paula Rotundi

August 12, 2016
Dear City Council Members,
It is my understanding from reading The Northern Light that you received a letter from BNSF Railway urging you to refrain from voting to outlaw shipments of oil and coal by rail because such a measure is “unenforceable under federal law and costly for taxpayers”. Before deciding that you must do as BNSF says, I ask that you please consider the following information:

First, BNSF does not have the authority to determine what is enforceable or unenforceable under federal law. In the United States of America only the courts decide what is enforceable (permitted) or unenforceable (prohibited) under “federal law” – the Constitution of the United States of America. I believe BNSF is presenting you with a misconstrued, corporate biased interpretation of federal law based primarily upon a superficial interpretation of what is commonly referred to as “the Commerce Clause” – Article 1, Section 8, Clause 3 of the U.S. Constitution.

The Commerce Clause gives the U.S. Congress exclusive power to regulate interstate commerce and the courts have determined that in the U.S. Constitution the word “commerce” means commercial exchanges in any and all forms, including communications and the passage of persons for either business or pleasure. Importantly, the Courts also have determined that the Commerce Clause does not prevent states and local governments from having the authority to regulate interstate commerce when the regulation is for a legitimate and reasonable interest in protecting public health and safety. Furthermore, the courts have determined that a state or local government’s interest in regulating for the benefit of public health and safety outweighs interstate commerce concerns. Prominent examples are that the courts allow states and local governments to regulate the commerce of tobacco and liquor produced in other states.

•    I ask you to consider the legitimate and reasonable public health and safety concerns of transporting crude oil and coal through Blaine including that these trains may derail with their contents then spilling and/or exploding harming the public and the air land and water our health and lives and livelihoods depend upon.
•    I ask you to consider that the City of Blaine does have the authority to regulate the shipment of crude oil and coal by rail to protect public health and safety.
•    I ask you to consider that failing to ban shipments of crude oil and coal by rail exposes the City of Blaine to potential litigation for failure of its primary duty – protecting public health and safety.

Also of legal importance to your considerations is the Public Trust Doctrine. The courts in several states including Washington State have determined that under the Public Trust Doctrine governments have an obligation to hold certain natural resources in trust for present and future generations and that government cannot permit the injury or destruction of those natural resources. The courts have determined that “natural resources” includes: Inland Navigable Waterways, Pubic Access, Water Quality and Water Rights, Fish and Wildlife Resources, and Air Resources. Blaine has a fortunate abundance of these precious natural resources. Recently under the Public Trust Doctrine several children filed and won a lawsuit against the Washington State Department of Ecology for failing to pursue rulemaking to reduce greenhouse gas emissions. The State of Washington Supreme Court’s “FINDINGS OF FACT” include:
“The effect of climate change on water supplies, public health, coastal storm damage, wildfires and other impacts will be costly unless additional actions are taken to reduce greenhouse gases.”
“Current science establishes that rapidly increasing global warming causes an unprecedented risk to the earth including land, sea and atmosphere and all living plants and creatures. “
“Washington faces serious economic and environmental disruptions from the effects of climate change.”
“The climate crisis presents an urgent situation that youth petitioners cannot wait on.”

•    I ask you to consider that the City of Blaine has the authority and legal responsibility to protect Blaine’s natural resources for future generations by adopting regulations that protect Blaine’s natural resources from imminent and/or long term injury or destruction.
•    I ask you to consider that failure to protect Blaine’s natural resources from imminent and/or long term injury or destruction by coal and/or oil trains exposes the City of Blaine to potential litigation.

Finally, I also understand that when BNSF says that voting to “outlaw” shipments of oil and coal by rail would be “costly for taxpayers”, it means that BNSF would file a lawsuit against the City of Blaine for violating interstate commerce law and Blaine would have costly legal fees defending the regulation in court. But I also understand that there are non-profit legal organizations that could assist with Blaine’s defense and moreover that Blaine really could win this fight, recoup its legal fees and protect public health and safety and our natural resources for future generations.
Thank-you for considering my comments.

Sincerely,
Paula Rotondi

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