Opinion: Public safety and accountability suffer because of rail deregulation

Bruce Campbell, York University, Canada and Jennifer Quaid, L’Université d’Ottawa/University of Ottawa

The ongoing environmental tragedy in Ohio caused by the derailment of a Norfolk Southern train carrying hazardous materials – which sent toxic chemicals into the air and local waterways – will take a long time to clean up. And if a similar rail tragedy in Canada is an example, it could take even longer for residents to get answers about the cause and true damage of the accident.

Almost a decade has passed since a runaway train hauling 72 tank cars laden with highly volatile Bakken shale oil derailed and exploded in Lac-Mégantic — a small Québec town near the border with Maine — killing 47 people, orphaning 26 children, spilling six million litres of toxic material and destroying the town centre.

The accident on July 6, 2013, was the worst industrial disaster on Canadian soil in over a century. A decade later, it has left the community with a legacy of economic, health and environmental effects.

Prolonged trauma

A rail bypass project, originally conceived as means of healing, has prolonged the trauma that has plagued the Lac-Mégantic community since that catastrophic night.

Construction of the bypass still has not begun. The route preferred by Canadian Pacific Railway Ltd., which will own the bypass upon completion, and supported by the federal government, has created deep divisions within the surrounding towns.

Citizens of the neighbouring town of Frontenac recently voted overwhelmingly against the proposed route. Voters expressed concern about potential negative environmental and property damage not properly addressed by Transport Canada.

The dispute over the bypass is just one of the ongoing issues for the citizens of Lac-Mégantic. Their latest quest for justice through the courts came to a disheartening end on Dec. 14, 2022.

Justice Martin Bureau of the Superior Court of Québec found that Canadian Pacific Railway could not be held liable for damages suffered by the victims of the Lac-Mégantic disaster. The plaintiffs have appealed the decision.

Raises questions about accountability

This case raises serious questions about who should be accountable for complex events that result in catastrophic harm. It’s also a reminder that private litigation is an imperfect means of understanding how disasters happen and what should be done to better protect public interest in the future. Only a public inquiry can do that.

The class action lawsuit was brought against Montreal Maine & Atlantic Canada Co. and 25 other defendants. MM&A subsequently went bankrupt.

In 2016, 24 of the defendants settled the claims against them by contributing $460 million to a compensation fund. Among those who settled were Transport Canada, which paid $75 million into the fund, Irving Oil ($75 million) and World Fuel Services Corp., the U.S. owner of the oil on the train ($135 million). This was not an altruistic gesture, but rather a way to end their legal exposure because the settlement released them from the class action.

CP claimed no wrongdoing

Canadian Pacific did not join the settlement. From the outset, CP maintained it had engaged in no wrongdoing. It refused to acknowledge any responsibility in connection with the Lac-Mégantic disaster because the derailing occurred after the train was handed off to Montreal Maine & Atlantic in Montréal for the final leg of the journey.

After considering the extensive evidence presented at trial, the court concluded that CP was not liable for what happened at Lac-Mégantic.

The judge ruled that not only did CP have no duty to intervene, it was also not negligent because it followed industry practice. Moreover, even if there was negligent conduct on the part of CP, the judgment found there was no evidence the company was “the direct, immediate and logical cause of the prejudice suffered by the victims” because of the derailment.

In finding that CP was not at fault, the judge relied on existing industry practice when determining whether CP had fulfilled its duty to act as a reasonably prudent person according to section 1457 of the Civil Code of Québec.

In reaching this conclusion, the court was heavily influenced by the absence of legally binding duties in applicable railway regulations requiring CP to do the things the plaintiffs alleged CP ought to have done.

No duty to monitor risks

The judge agreed with CP that it was only required to do a risk assessment on its own track. The court held that since it is the government’s job to ensure that cargo was properly classified and that Montreal Maine & Atlantic met the required safety standards on its portion of the route, CP had no duty to monitor the risks to the public posed by the companies with which it collaborated.

The court found that nothing obligated CP to investigate whether the shale oil in the tank cars was misclassified or more volatile than typical crude oil. Nor was CP negligent in choosing Montreal Maine & Atlantic to transport the fateful cargo through Lac-Mégantic, despite CP’s knowledge of Montreal Maine & Atlantic’s practices and the increased risks they created for transport of this oil over MM&A’s line.

The court’s conclusions are based on a view of the regulatory framework that ignores the reality of the power relationship between industry and regulator.

Two railways, Canadian National and Canadian Pacific, effectively determine the laws, rules and regulations — together with complicit bureaucrats and legislators — to serve their interests and protect themselves from liability in the event of a disaster.

The vastly diminished independent oversight capacity of Transport Canada is the product of a decades-long process of deregulation and reduced resources, where the regulator oversees written safety plans prepared by railways rather than inspecting actual safety practices on the ground.

In other words, the railways themselves define “existing industry practice” against which the reasonableness of their conduct is measured.

A narrow view of causation

In addition to finding that CP was not negligent, the Québec court assigned legal blame solely to the last link in the causation chain — Tom Harding, the locomotive engineer.

This is worrying because it blames Harding for his role in a complex event when he had little control over his working conditions and corporate policy. In focusing on Harding’s decision about how many hand brakes to set, the court ignores all the other conditions that helped to set the derailment in motion — including parking the train on the main line uphill from a town with mislabeled cargo of volatile explosive crude oil.

Harding was acquitted of criminal wrongdoing in 2018.

This case underscores how difficult it is under current legal rules for plaintiffs to prove fault and causation in complex events — particularly when multiple parties are involved, each of which is motivated to limit their legal exposure to liability.

Not only do private parties lack the power to compel evidence, even if they did, the costs of assembling evidence of the factors that contributed to an event on the scale of the Lac-Mégantic derailment is prohibitive.

In light of the failure of a flawed legal system to provide justice for the citizens of Lac-Mégantic, an independent commission of inquiry remains the only means of getting to the bottom of what happened, why it happened, who should be held accountable and what policies should be implemented to prevent future disasters. Yet such an inquiry has been rejected by successive governments.

Ten years after Lac-Mégantic, corporate negligence and regulatory failure remain predominant systemic features of the transportation of dangerous goods by rail in North America, evident most recently in the derailment and toxic chemicals spill in East Palestine, Ohio. The status quo cannot be tolerated. Public safety must supersede shareholder value.

Bruce Campbell, Adjunct Professor, Faculty of Environmental and Urban Change, York University, Canada and Jennifer Quaid, Associate Professor & Vice-Dean Research, Civil Law Section, Faculty of Law, L’Université d’Ottawa/University of Ottawa

This article is republished from The Conversation under a Creative Commons license. Read the original article.