Board Issues a Policy Statement on Rail Preemption
Published: November 7, 2026
By: Adam Burns
WASHINGTON — The Surface Transportation Board has placed a policy statement on public inspection for the Federal Register of November 9, 2026. The document is Docket No. EP 791, “Policy Statement on Jurisdiction and Preemption Under the ICC Termination Act,” FR Doc. 2026-22811. It becomes final on November 9. The statement gives an overview of existing precedent on Board jurisdiction over transportation by rail carriers, and on preemption of conflicting state and federal laws under the ICC Termination Act, 49 U.S.C. 10501. It is meant as one place for concise explanations. It is not a set of new binding case holdings.
Nebraska Central GP38-3s #1024, #902 and #1020 are switching the yard at Norfolk, Nebraska on June 19, 2025. Norfolk is the busiest point for the railroad and is served by day and evening locals as well as a road train up from Columbus. Doug Kroll photo.
What the statement is
The Board was created on January 1, 1996, by the ICC Termination Act, Public Law 104-88. It succeeded the Interstate Commerce Commission, which had run from 1887 to 1995. The statement uses that history only as background for the statute it is explaining.
A coalition of six organizations asked for this kind of statement in a letter dated September 19, 2025. The groups are the American Chemistry Council, the American Short Line and Regional Railroad Association, the Association of American Railroads, the Intermodal Association of North America, the National Grain and Feed Association, and the National Industrial Transportation League. Board members Fuchs, Hedlund, and Schultz answered jointly on September 24, 2025. They noted the views in the letter and said the Board was considering a policy statement.
The statement says express preemption is typically treated as categorical, and implied preemption is typically treated as as-applied. It describes two parts of 49 U.S.C. 10501(b): exclusive jurisdiction, and exclusive remedies under the Act that preempt other federal and state remedies. Federal-law preemption, it says, uses a harmonization analysis. The examples it names are the Federal Railroad Safety Act, the Clean Air Act, and the Clean Water Act.
The list of fact patterns is non-exhaustive. The statement names abandonment of rail property interests; a complete taking of rail-carrier property; utilities and pipelines in the right-of-way; blocked crossings; pedestrian or road crossings; locomotive idling; environmental permitting, zoning, and land-use laws; noise, smoke, appearance, and other nuisance claims; design, construction, or maintenance of rail infrastructure; breach of contract; and routing of traffic. A later case is still judged on the facts, the circumstances, and the laws in that case.
What it does not decide
The statement says, in its own words: “The Board is not making any binding determinations in this policy statement.” It “should not be interpreted to predetermine the outcome of any particular dispute.” It compiles principles from existing cases. Where it identifies a refinement, “such as complete takings and regulations directed at rail customers, the discussion below explains the basis for the refinement.”
This docket is not the Union Pacific-Norfolk Southern merger review. That case is separate. The request to end that review is already covered in CPKC Asks the STB to End the Union Pacific-Norfolk Southern Review, and the schedule of the review is in Union Pacific-Norfolk Southern Merger Review Runs to 2027.
Complete takings
On a complete taking, the statement says it is “not adopting a definitive approach that resolves all cases.” It says there are “strong policy arguments” that state and local claims seeking exclusive possession of any portion of a validly held railroad right-of-way, or of rail-carrier property that the carrier uses or plans to use for rail transportation under 49 U.S.C. 10102(9), “would be better reviewed under the categorical preemption analysis.” Once the property right being sought would exclude rail use, “there are strong arguments that the analysis should be at its end,” and such claims “may be categorically preempted without a detailed inquiry” into the effect on present or future operations.
The same passage treats non-exclusive easements differently. At-grade crossings, and subterranean water or sewer lines, are “best assessed using an as-applied analysis as the Board does currently.” A footnote records the limit on that discussion. Girard v. Youngstown Belt Ry. later held that an eminent-domain claim was not preempted. In Grafton & Upton, the Board did not decide whether to endorse Girard.
Rules aimed at rail customers
On regulations directed at rail customers, the statement describes a potential modified framework that, “subject to the arguments and facts presented in particular proceedings, may inform” the evaluation. It poses two threshold questions. First, is the facility developed or used to receive or tender common-carrier rail service, such as a transload, an off-loading point, or a similar interchange? Second, does the state or local action restrict, condition, or dictate that service, including volume, frequency, timing, configuration, or commodity mix?
If the answer to both questions is yes, a categorical or an as-applied analysis may apply. If either answer is no, and the object is activity at the facility that is not rail service, section 10501(b) is not implicated unless the action discriminates against rail. The statement says SEA-3 and Valero asked what the stated object of a rule was. It says “a better reading might ask what was regulated in effect,” and it “takes this opportunity to reemphasize” that common-carrier service remains transportation by a rail carrier even when the restriction is addressed to the customer. It does not say those earlier matters were overruled.
Rail customers are not directly under the jurisdiction of the Board. The statement says much regulation of customer facilities “is, and should remain, beyond” that jurisdiction. The examples are a zoning rule aimed at a private manufacturer that has only an incidental rail component, and electrical, fire, and plumbing codes. Those codes still apply to rail facilities.
The statement also says railroads “should not use ICCTA preemption as an excuse to be unresponsive to local public officials.” It points to communication, information sharing, and cooperation, consistent with 49 U.S.C. 10101. A complaint may go to the Office of Public Assistance, Governmental Affairs, and Compliance. The statement says state and local governments may have legitimate interests in passenger rail, and in trails inside a right-of-way where a trail is allowed.
Related reading on American-Rails.com
- CPKC Asks the STB to End the Union Pacific-Norfolk Southern Review
- Union Pacific-Norfolk Southern Merger Review Runs to 2027
- Rail News
Sources
- Surface Transportation Board, Docket No. EP 791, “Policy Statement on Jurisdiction and Preemption Under the ICC Termination Act,” Statement of Board Policy, FR Doc. 2026-22811, public-inspection copy at public-inspection.federalregister.gov/2026-22811.pdf, scheduled for the Federal Register on November 9, 2026, and final on that date. Overview of existing precedent under 49 U.S.C. 10501. No binding determinations, and no predetermination of a particular dispute. Refinements discussed for complete takings and for regulations directed at rail customers, with the hedges printed above. Non-exhaustive fact-pattern list as named above. Coalition letter of September 19, 2025, stb.gov/wp-content/uploads/Coalition-Letter-on-ICCTA-Preemption_FINAL.pdf. Joint response of September 24, 2025, by Board members Fuchs, Hedlund, and Schultz, stb.gov/wp-content/uploads/Preemption-Letter-Final.pdf. Contact Amanda Gorski, (202) 915-8453. ADA (202) 245-0245. This document is not Finance Docket No. FD 36873.
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