Every day, between 80 to 100 trains laden with coal leave the mines of the Powder River Basin in Montana and Wyoming, bound for export terminals and power plants across the country.
But coal trains can’t be covered, due to the combustible nature of coal, which means that as these trains rumble through communities, and near rivers, they can spew coal dust into the air and, potentially, into bodies of water.
For years, environmental and climate groups have tried to hold railroad companies that ship coal responsible for the pollution caused by coal trains. Now, a federal judge in Seattle has determined that, under the Clean Water Act, a case can go forward to hold BNSF Railway liable for pollution from coal trains. The judge warned that, to prevail, environmental and climate groups must show that debris from the coal trains is directly polluting bodies of water.
“What’s so important about this case is we are talking about waters that people use for swimming, for drinking, that are critical for bringing back strong salmon runs,” Lauren Goldberg, staff attorney for Columbia Riverkeeper, told ThinkProgress. “It’s really a key lawsuit to demonstrate that no one — not even a huge railroad company like BNSF — is above the law.”
In 2013, a coalition of environmental groups, including Columbia Riverkeeper, the Sierra Club, and Puget Soundkeeper Alliance, filed a lawsuit against BNSF in federal court, claiming that the company had violated the Clean Water Act by allowing coal dust and pieces of coal to escape from their trains and enter into water sources. Coal dust, as well as fragments of coal that has broken off from larger pieces, contains toxins like mercury, arsenic, and uranium.
“This case is about protecting people that live near the state’s largest rivers, and on the Puget Sound, and who are impacted on a daily basis by dirty coal dust,” Goldberg said. “We know that it is going into our rivers and waters and it’s unacceptable. The Clean Water Act is very clear that no one is allowed to discharge pollution unless they have a permit that restricts the amount of pollution going into the water.
BNSF, in a statement to the Associated Press on Wednesday, said it “is confident in its legal arguments,” and pointed to its coal-loading rule, which requires shippers to load coal into cars using a modified chute, as well as to take additional mitigation measures, to reduce the amount of coal dust lost from trains during shipments. Under the BNSF’s coal loading rule, cars must reduce the lost of coal dust by 85 percent, compared to cars loaded without mitigation measures.
By their own admission, however, a fair amount of coal dust still manages to escape from BNSF coal trains. According to an old guide for freight customers that used to be housed on the BNSF website, internal company studies have shown that between 500 and 2,000 pounds of coal dust can escape from a single loaded car (that page has since been deleted). Even if 85 percent of that dust is avoided, that’s still at least 75 pounds per car and potentially as much as 300 pounds per car. An average coal train has about 115 cars — meaning that between 8,625 and 34,500 pounds of coal dust are likely to escape from a single train, even if it has been loaded using BNSF’s mitigation techniques.
The decision comes during the week of final hearings for a proposed coal export terminal in Longview, Washington, which, if approved, would be the largest coal export facility in the country. If built, 44 million metric tons of coal could pass through the terminal annually, requiring an additional 16 coal trains to travel through the Columbia Gorge and Washington each day. According to the Washington State Department of Ecology’s draft Environmental Impact Statement, the terminal would create 37.6 million metric tons of carbon dioxide equivalent between 2018 and 2038 — roughly the same as adding 8 million passenger vehicles to the road.
Goldberg hopes that the Clean Water Act lawsuit against BNSF, which will go to trial on November 7, will have a chilling effect on the proposed terminal.
“This case will set national precedent and will require that companies that want to transport coal by rail need employ technology to ensure that none of that coal is going into our drinking water sources and waters that people swim in and rely on fish from,” she said. “For the nation’s largest coal export terminal, it will really call into question whether that project is still economically viable.”