By: Sarah Benjamin
After the train derailment in East Palestine, Ohio last month, many residents are retaining lawyers due to serious health and safety issues. Norfolk Southern Railway (“Norfolk Southern”) has pledged that it will take steps towards better safety and compliance with Federal Railroad Administration regulations. However, railroad companies have usually not been supportive of such changes given the significant monetary effects of a new regulation would place on them in order to meet the newly applicable standards. For example, Norfolk Southern was one of many railway companies that opposed proposed speed limits and brake system requirements due to a number of lethal collisions. Hence, the Environmental Protection Agency (“EPA”) announced that it would be placing sanctions on Norfolk Southern and ordered that it must comply completely with the standards the EPA has set forth to clean and manage the damage, which include quick and complete removal of the toxic waste and repair to the land. The EPA asserts its authority under the Environmental Response, Compensation, and Liability Act (“CERCLA”). Before CERCLA was passed, there were environmental catastrophes in Love Canal and Times Beach, Missouri. The passage of CERCLA provided liability where there was a gap for citizens to sue for such environmental disasters. Therefore allowing for the two class actions that have already been filed by the Ohio residents to attempt to hold Norfolk Southern accountable as the National Transportation Safety Board (“NTSB”) conducts its investigation into the derailment. Some believe that a jury will be able to provide a faster response to those affected by the derailment because the civil trial system is already functioning and prepared to handle such an issue. As suggested by Stuart Razkan, a prominent, Miami-based medical malpractice and personal injury attorney, if a jury holds Norfolk Southern accountable for the preventable harms it has caused, railway companies may be motivated to avoid future costly liability by adhering to or creating their own new safety standards. However, if the case is litigated in state court, the Ohio damage caps will limit the damages awarded regardless of the number of individuals who are harmed. 
On February 28, 2023, as one of the first Congressional actions after the train derailment, Democratic lawmakers introduced new legislation to tighten railway safety regulations. The impetus for this new legislation was that the train was not liable under certain federal regulations because the amount of hazardous waste it was carrying was below the standard. Currently, the new legislation, called The Railway Safety Act of 2023, will again attempt to ensure appropriate liability for the effects of hazardous waste by extending safety regulations. The legislation may be a better solution for those harmed because there would be no damage cap.
This change in legislation demonstrates a growing trend for consumers, specifically how they are increasingly supporting companies whose values for environmental and supply chain responsibility match up with their own.  Moreover, there is pressure from both stakeholders, the consumers who are affected by these business practices, and shareholders in advocating and implementing Environmental, Social, Governance (“ESG”) considerations into long-term business plans due to their fiduciary duties to make decisions for the benefit of the company. In this regard, the business case for passing this legislation is that ensuring the safe transportation of hazardous material will prevent detrimental environmental and health consequences and therefore, guarantee future profits.
Therefore, if the legal business analysis of shareholder primacy is used to increase the palatableness of the new legislation, there is a better chance of guaranteeing the Railway Safety Act passes despite the heavy political influence that the railway system has and its self-interest in not having to conform to the new standards.  Further, President Clinton issued executive order 12898, which charged federal agencies with incorporating environmental justice into their programs. The argument is that by incorporating ESG considerations into how a company runs, such as in following such new legislations as the proposed one and taking environmental justice into consideration, companies can continue to increase their profits long term as these considerations are impactful for financial market participants in terms of risk management and sustainable growth. 
 Campbell Robertson, In Town Where Train Derailed, Lawyers Are Signing Up Clients in Droves, The New York Times (Feb. 24, 2023), https://www.nytimes.com/2023/02/24/us/east-palestine-ohio-residents-lawsuits.html.
 Jennifer A. Dlouhy and Ari Natter, Railroads Fought to Kill Train Rules Biden Aims to Revive After Ohio Derailment, Bloomberg Law (Feb. 23, 2023), https://www.bloomberglaw.com/product/blaw/document/RQJKIZT0AFB4; 49 U.S.C. 5101-5128, https://www.ecfr.gov/current/title-49/subtitle-B/chapter-I/subchapter-C/part-171.
 See Dlouly and Natter, supra note 2; Ari Natter, Schumer Backs New Train Safety Rules Following Ohio Crash, Bloomberg News (Mar. 1, 2023), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/bloomberg-law-news/X57BQQI0000000?bc=W1siU2VhcmNoICYgQnJvd3NlIiwiaHR0cHM6Ly93d3cuYmxvb21iZXJnbGF3LmNvbS9wcm9kdWN0L2JsYXcvc2VhcmNoL3Jlc3VsdHMvZjk4ZmU5MjBkN2I3NWE1ZDExYTQ3MmU5ZjU0NzgyODciXV0–0e62f497c62b1fe513def00e34b035912563c6d6&bna_news_filter=bloomberg-law-news&criteria_id=f98fe920d7b75a5d11a472e9f5478287&search32=7uVjiltvrc9pHnP_BiUulA%3D%3DNGbukG7bt-atYkwA9YVc0kJB8ovZE2CG-5m99X4BMiBE5kG_m1KEW26vrYl_rZUuz_BFU_owTFduyWmBSdX9PuuU3Q567IHPFGvP6Zkv6Z886sIprDi-m1BaLsQWodMbZEfXtWStkAsVMj8jnSS9KbfsTtTyyUcN9k-FIZOx3nA%3D.
 Jennifer A. Dlouhy and Ari Natter, supra note 2.
 Nouran Salahieh, Holly Yan and Christina Maxouris, EPA says it can fine Norfolk Southern $70,000 a day if it falls short of cleaning up and paying for the Ohio toxic train wreck, CNN (Feb. 22, 2023), https://www.cnn.com/2023/02/22/us/ohio-train-derailment-east-palestine-wednesday/index.html.
 Salahieh, Yan and Maxouris, supra note 4; 42 U.S.C. §9601 et seq. (1980); EPA, Summary of the Comprehensive Environmental Response, Compensation, and Liability Act, EPA, https://www.epa.gov/laws-regulations/summary-comprehensive-environmental-response-compensation-and-liability-act#:~:text=The%20Comprehensive%20Environmental%20Response%2C%20Compensation%2C%20and%20Liability%20Act%20%2D%2D%20otherwise,and%20contaminants%20into%20the%20environment.
 Laurence S. Kirsch and John C. Raffetto, Federal Environmental Liability under CERCLA and RCRA, American Bar Association, https://www.americanbar.org/content/dam/aba-cms-dotorg/products/inv/book/408778006/chap1-5350266.pdf.
 See id.
 See id; Zack Budryk, East Palestine residents file class-action against Norfolk Southern, The Hill (2/24/23 1:42 PM ET), https://thehill.com/policy/energy-environment/3872818-east-palestine-residents-file-class-action-against-norfolk-southern/.
 Stuart Ratzan, Why a Jury Trial May Be the Fastest Track to a Safer Rail System, Bloomberg Law (Feb. 28, 2023), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/bloomberg-law-news/XE06LBF8000000?bc=W1siU2VhcmNoICYgQnJvd3NlIiwiaHR0cHM6Ly93d3cuYmxvb21iZXJnbGF3LmNvbS9wcm9kdWN0L2JsYXcvc2VhcmNoL3Jlc3VsdHMvZjk4ZmU5MjBkN2I3NWE1ZDExYTQ3MmU5ZjU0NzgyODciXV0–0e62f497c62b1fe513def00e34b035912563c6d6&bna_news_filter=bloomberg-law-news&criteria_id=f98fe920d7b75a5d11a472e9f5478287&search32=7uVjiltvrc9pHnP_BiUulA%3D%3DNGbukG7bt-atYkwA9YVc0kJB8ovZE2CG-5m99X4BMiBE5kG_m1KEW26vrYl_rZUuz_BFU_owTFduyWmBSdX9PuuU3Q567IHPFGvP6Zkv6Z886sIprDi-m1BaLsQWodMbZEfXtWStkAsVMj8jnSS9KbfsTtTyyUcN9k-FIZOx3nA%3D.
 See id.
 Stephanie Lie, Lawmakers Propose Legislation to Tighten Rail Safety Regulations, The New York Times (Feb. 28, 2023), https://www.nytimes.com/2023/02/28/us/politics/congress-east-palestine-legislation.html.
 Id. (requiring trains carrying flammable liquids in at least 20 consecutive, or 35 total cars to travel at a maximum speed of 50 miles an hour and have newer breaking systems and special cars whereas the derailed train in Ohio only had such substances in 3 cars).
 See Lie, supra note 3.
 Press Release, White House, Statement from President Joe Biden on the Bipartisan Railway Safety Act of 2023 (Mar 2, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/03/02/statement-from-president-joe-biden-on-the-bipartisan-railway-safety-act-of-2023/.
 See Shivaram Rajgopal, Has the ESG Train Left the Stattion?, Forbes (Feb. 8, 2023 8:39 AM ET) https://www.forbes.com/sites/shivaramrajgopal/2023/02/08/has-the-esg-train-left-the-station/?sh=102219042be5.
 Martin Lipton, Wachtell, Lipton, Rosen & Katz, Understanding the Role of ESG and Stakeholder Governance Within the Framework of Fiduciary Duties, Harv. L. Sch. F. Gov. (Nov. 29, 2022), https://corpgov.law.harvard.edu/2022/11/29/understanding-the-role-of-esg-and-stakeholder-governance-within-the-framework-of-fiduciary-duties/.
 See Martin Lipton, Wachtell, Lipton, Rosen & Katz, supra note 13.
 Stacey Sublett Halliday, Julius Redd, Raven Hayed & Hilary Jacobs, EPA Is Using CERCLA Enforcement to Further Environmental Justice, Beveridge & Diamond (May 19, 2022), https://www.bdlaw.com/publications/epa-is-using-cercla-enforcement-to-further-environmental-justice/.
 See id.