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Riding the Victory Train to Environmental Justice in Greater Boston

By Staci Rubin

Gail picked up the neighborhood newspaper one day in 2011 and turned to the legal notices. She read about a neighboring company that had filed an application for a conservation-commission permit to conduct property improvements. She did not think much of the notice initially. She showed it to a group of activists who work together on environmental justice issues, and they decided to attend the conservation commission’s public hearing to learn more. There Gail found out that the property owner sought a permit to construct upgrades and build railroad tracks to connect to the existing commuter rail tracks down the street so that the property could receive freight trains carrying ethanol. This neighboring property owner is a Fortune 500 company called Global Partners LP. On its property is an industrial oil terminal that blends products to form gasoline, which is then trucked to gas stations along the east coast of the United States.

Since hearing about the ethanol trains at the public hearing, Ed, a resident in the neighboring city of Revere, had been passionately scouring the Internet for articles about train derailments, fires resulting from hazardous material spills, and limited federal agency oversight of freight traffic carrying hazardous materials. Ed was knowledgeable and well-spoken and got fired up to talk about ethanol trains.

Gail, her neighborhood activists, and my organization have a long history. My organization, Alternatives for Community & Environment (ACE), formed in 1993 to connect attorneys with residents seeking to address the high concentration of polluting facilities in communities of color and low-income neighborhoods. Since the mid-1990s, ACE attorneys have partnered with residents like Gail and Ed in Chelsea, East Boston, and Revere to work for environmental justice under the auspices of the Chelsea Creek Action Group. 

Chelsea and East Boston are separated by the Chelsea River, known locally as the Chelsea Creek. The Chelsea Creek is an industrial area with little waterfront access, except for the green spaces that the Chelsea Creek Action Group won through years of work. The Chelsea Creek is home to many low-income residents and people of color, seven oil terminals and tank farms, a fish processor, road-salt storage, fuel storage for nearby Logan International Airport, and several other industrial businesses that benefit from marine vessel deliveries.

After Gail had read that initial legal notice, she had informed the Chelsea Creek Action Group and ACE about the plans to build railroad tracks to receive ethanol trains. The Chelsea Creek Action Group organized to get multiple residents to attend the public meeting to learn more. I got to work researching legal tactics that would allow residents to learn more about the proposed plan and determine how my clients’ voices could sway decision-making.

The Facts

Global Partners LP was preparing to upgrade its facility in Revere, Massachusetts, adjacent to East Boston and Chelsea, to bring in up to nine million gallons of ethanol per week by train, putting millions of residents across Massachusetts at risk of a fire or explosion. The mile-long ethanol trains, with approximately 100 cars each, would have traveled on the same rail tracks as the subway and commuter trains. Global Partners planned to receive two to three trains per week and transport the final blend of ethanol and gasoline via truck. Global Partners would have contracted with Pan Am Railways to transport the ethanol by train to Global’s facility in Revere. The train would have taken one or more of four routes, all of which would have passed through densely populated neighborhoods and commercial centers. 

Ethanol is used as a fuel additive. It is a highly flammable liquid, and its fires cannot be extinguished without alcohol-resistant foam and specially trained firefighters. A significant number of ethanol train derailments, evacuations, and public safety accidents occurred in sparsely populated areas from 2008 to 2013, but the damage would be much worse if similar accidents occurred in densely populated communities like Chelsea and East Boston. Prior to Global Partners’ ethanol train proposal, the company transported ethanol to its Revere facility by barge, a method that exposes far fewer residents to ethanol’s potential hazards as compared to rail delivery.

Our research demonstrated that rail carriers and oil terminals must comply with federal regulations that govern training of company personnel, operating procedures, and the design of their facilities. However, no regulations require frequent inspections of the rail carriers or facility operators prior to shipping or receiving large quantities of hazardous material. The regulations do not require that the most stringent safety measures be employed.

The Community Response and Multipronged Strategy

The residents decided in spring 2011 to take action to oppose the company’s plan to bring in ethanol trains, which were dubbed “bomb trains” by the Chelsea Creek Action Group. Residents concluded that the company was choosing to increase its profits at the expense of adequate public safety measures. We employed a multipronged strategy that involved preparing for administrative litigation, planning for a future court case, organizing residents, educating the general public and the local business community, negotiating directly with the company, and drafting legislation.

We were not aware in 2011 of any other community group or organization that was paying attention to freight trains filled with ethanol or other hazardous materials. Only in the last year of the campaign did we learn about communities organizing to oppose crude oil and ethanol trains in places like Albany, New York; Baltimore, Maryland; and Oregon and Washington states. 

Administrative Litigation. We researched the types of permits that the company would need to obtain to expand the facility. We determined that pursuant to chapter 91 of the Massachusetts General Laws, the company would need approval of the Revere Conservation Commission and a license from the Massachusetts Department of Environmental Protection. The Revere Conservation Commission approved the local permit in short order after the public hearing that Gail and Ed attended. We focused our efforts on the state license.

In March 2012, we requested and were granted a public hearing on the state chapter 91 license. We held several conversations with Massachusetts Department of Environmental Protection staff to notify them of the significant public interest in this project and to request a weekday-evening public hearing. We used this opportunity to organize residents and generate a turnout of well over 100 people in a standing-room-only setting with people spilling into the hallway. Residents, workers, elected officials, scientists, and attorneys testified in English and Spanish almost unanimously raising concerns about the ethanol train proposal and asking the Department to deny Global Partners a chapter 91 license. 

The state regulations required the company to overcome the presumption that the project was not water-dependent and demonstrate how the benefits outweighed the burdens. We anticipated that the Department might issue the license, and we prepared for an administrative appeal. However, the Department never issued a decision about the license application due to our legislative advocacy, as discussed below. Global even filed suit in superior court seeking a decision on its state-license application after many months of the Department’s inaction. The Suffolk County Superior Court denied Global Partners’ motion for summary judgment and stated that it was within the Department of Environmental Protection’s discretion to take the time it needed to investigate and educate itself about the project’s implications before rendering a decision on the license (Memorandum of Decision and Order on Plaintiff Global Petroleum Corp.’s Motion for Summary Judgment, Global Petroleum Corporation v. Massachusetts Department of Environmental Protection, No. 2013-0535-H (Suffolk Cnty. Super. Ct. June 20, 2013)). 

Preparing for Court Litigation. Even though ACE’s resources are limited, we were already thinking through potential issues to raise in a lawsuit should the campaign require litigation. ACE coordinates the Massachusetts Environmental Justice Assistance Network of pro bono attorneys, scientists, public health practitioners, engineers, and others. We were prepared to seek assistance from the pro bono network if our other tactics proved unsuccessful.

Education and Community Organizing. Community organizers from the Chelsea Creek Action Group did a stellar job of educating community residents, business owners and workers, municipal representatives of surrounding communities along the rail routes, school administrators, and first responders. Residents held frequent meetings of activists and concerned community members and brought together hundreds of people at various public dialogues to learn more and ask questions. Organizers succeeded in urging seven municipalities to pass resolutions opposing ethanol trains. Ed was responsible for convincing Revere residents to pass a nonbinding referendum in opposition to the ethanol trains. Organizers already had positive relationships with journalists and employed a successful communications plan. We received frequent coverage by local newspapers and the Boston Globe (see also here and here). While our message focused on the need for adequate public-safety protections, which were not available to defend against an ethanol train accident in Greater Boston, we succeeded in framing the message as one of environmental injustice. Communities like East Boston and Chelsea already share a disproportionate burden of public health and safety hazards. When the community comes together to demand justice, it has the power to make positive changes when residents are informed, active, and organized.

Direct Negotiation. Throughout the campaign, residents had multiple direct conversations with representatives from Global Partners. Residents were vocal about their concerns and, most importantly, their questions. Company representatives failed to respond to resident questions about their corporate plans, public safety initiatives, or the amount of products stored and processed at their facility. We talked with the company’s vice-president, general counsel, operations manager, and other company officials. Those conversations ended without satisfactory resolution.

Drafting Legislation. We knew that getting legislation passed would require a monumental effort, but we felt strongly that we could succeed, even if the petroleum industry felt threatened by a new statute.

The first question that I received from elected officials was whether the state had any legal authority to take action because the federal government controls interstate rail transportation. Based on our research, I was able to assure them that they had jurisdiction. The federal Surface Transportation Board has jurisdiction over rail transportation through the Interstate Commerce Commission Termination Act, and the remedies provided under the Act are exclusive and expressly preempt other remedies under federal and state law. The Surface Transportation Board and courts have identified two categories of state regulation that are per se preempted with respect to rail transportation: (1) states are preempted from imposing preclearance or permitting requirements that could be used to deny the rail carrier the right to construct facilities, conduct operations, or proceed with activities the Surface Transportation Board has authorized; and (2) states are prohibited from intruding into matters that are regulated by the federal Surface Transportation Board. However, not all rail is subject to federal preemption or the Surface Transportation Board’s authority. Actions that are not preempted include:

  1. regulating parties who are not rail carriers;
  2. private rail operations conducted over private track;
  3. actions having an incidental effect on rail transportation; and
  4. regulating pursuant to environmental or public health and safety statutes that does not interfere with interstate rail operations or otherwise unreasonably burden interstate commerce.

Only one of these four actions is required to remove federal authority. Global Partners is not a rail carrier, and it sought to make improvements to its own property, which involved private track. Furthermore, the state’s regulation of Global Partners’ activities would result in only an incidental effect on rail transportation and would not interfere with interstate rail operations or unreasonably burden interstate commerce. Therefore, Global Partners’ activities were not subject to federal preemption or Surface Transportation Board authority.     

With this legal reasoning we convinced legislators to move forward with filing bills. We worked with our legislative champions in 2012 to file and pass legislation to require a study on the public-safety impacts of transporting ethanol by rail through Greater Boston before a chapter 91 license could be issued. This first law, which passed as an amendment to the transportation bond bill in 2012, bought us time to continue our community organizing, education, and negotiating tactics. We wrote a letter to the Massachusetts Department of Transportation, the state agency overseeing the public-safety study, to request that it convene a Technical Advisory Group. We delivered more than 800 postcards to the Department of Transportation leadership to advocate community seats on the advisory group; we succeeded in securing one-third of the advisory seats for community residents and our allies.

The study was released on March 29, 2013, and, per our urging, the Department of Transportation held several public meetings to answer questions about the draft report and study findings. While the study did not conclusively state that transporting ethanol by rail should be prohibited, it made a couple of key findings. First, the study concluded that “the rail routes in the study area are unusual in terms of their density of residents, joint public/private use of the rail assets, and adjacent industrial businesses that may also house hazardous materials on-site.” Second, the study noted several public safety concerns that had not yet been addressed: train speed and old railcar design; certain rail track that was not maintained to the same degree as the passenger tracks; and the insufficient quantity of alcohol-resistant foam, equipment, and trained personnel to battle an ethanol train fire. 

Following the study’s release, we drafted several additional legislative bills. The strongest bill, if passed, would have established a permanent ban on ethanol trains in Greater Boston. That bill was filed as an amendment to the 2013–14 Massachusetts budget. The amendment would have prohibited the Department of Environmental Protection from issuing a chapter 91 waterways license to an ethanol-blending facility storing or blending more than 5,000 gallons of ethanol per day in any community with more than 4,000 people per square mile. The amendment passed the House of Representatives and the Senate, and it survived the joint conference committee intact.

On July 1, 2013, the day following the conference committee’s approval of the language, Global Partners withdrew its proposal to bring in ethanol trains. Community organizers called a senior executive of Global Partners to discuss the pending legislation. The company representative said “We surrender.” The $17.5 billion company said that community opposition to its ethanol trains was too strong. At that time, the Massachusetts 2013–14 budget, which included our ethanol amendment, needed only a signature from Massachusetts Gov. Deval Patrick to become law, but the governor chose not to sign the ethanol amendment.

Despite the company’s surrender, residents wanted to press on with the legislative campaign to put additional barriers in place should Global Partners or any other oil terminal propose to bring ethanol trains to Greater Boston in future years. The Chelsea Creek Action Group and ACE pressed forward with the legislative campaign to ensure that a version of the ethanol train moratorium was signed into law.

After his refusal the year before to sign into law the permanent ban on ethanol trains in Greater Boston, in August 2014, Governor Patrick included language in the 2014–15 budget to guarantee that ethanol trains will not be allowed in Greater Boston through at least January 2017. The approval of the ethanol legislation in the budget cemented a significant victory for the Chelsea Creek Action Group and ACE. The law prohibits the Department of Environmental Protection from issuing a chapter 91 waterways license between now and January 1, 2017, for the development of railroad lines or facilities in the Chelsea Creek. The law requires the Massachusetts Emergency Management Agency to develop an ethanol response plan that will train fire personnel to handle ethanol fires, analyze the amount of alcohol-resistant foam needed to combat an ethanol-related accident, and supply the vehicles and equipment needed to deploy the foam effectively. The response plan will cover potential evacuation routes and shelter-in-place procedures, methods to communicate with limited-English-proficient residents when accidents occur, and necessary improvements to the transportation, infrastructure, and rail facilities used for ethanol transport. Additionally, the Massachusetts Emergency Management Agency must develop a municipal planning guide for cities and towns through which ethanol trains could pass.

The Victories

We made a point to mark each positive development with more actions to move us closer to our ultimate goal, and residents celebrated several victories throughout the campaign. First, we celebrated the magnificent turnout at the chapter 91 license hearing in March 2012 by organizing a large group of residents to lead the next phases of the campaign. Second, we celebrated in August 2012 the passage of the first law requiring a study of the public safety impacts by building a network of allies and supporters. Third, we celebrated the company’s withdrawal of its ethanol-train proposal in July 2013 with a press conference and community party. Fourth, we celebrated the temporary moratorium with a commitment to ensuring that communities remain protected against the threat of future ethanol trains in Greater Boston. 

Gail, Ed, and the Chelsea Creek Action Group were ecstatic about the campaign victories. They have asserted their intent to work for a permanent ban on ethanol trains in Greater Boston. The victories demonstrate the power of a multipronged strategy with tactics such as community organizing, education, building alliances, participating in environmental permitting proceedings, communicating with elected officials, engaging the media, and community lawyering. Together we can build power and begin to eradicate environmental racism and classism to create healthy, sustainable communities.

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