Bnsf Railway Company v. Cdtfa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BNSF RAILWAY COMPANY; No. 16-17130
UNION PACIFIC RAILROAD
COMPANY, D.C. No.
Plaintiffs-Appellees, 3:16-cv-04311-RS

v.
OPINION
CALIFORNIA DEPARTMENT OF
TAX AND FEE
ADMINISTRATION; DAVID
BOTELHO, in his official
capacity as Acting Director of
the California Department of
Tax and Fee Administration;
XAVIER BECERRA, Attorney
General; CALIFORNIA
GOVERNOR’S OFFICE OF
EMERGENCY SERVICES;
MARK GHILARDUCCI, in his
official capacity as Director
of the California Governor’s
Office of Emergency
Services,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
2 BNSF V. CDTFA

Argued and Submitted August 29, 2017
Pasadena, California

Filed September 13, 2018

Before: William A. Fletcher and Sandra S. Ikuta, Circuit
Judges, and Nancy Freudenthal,* Chief District Judge.

Opinion by Judge W. Fletcher;
Partial Dissent by Judge Ikuta

SUMMARY**

Transportation / Preliminary Injunction

The panel affirmed the district court’s preliminary
injunction preventing implementation of California Senate
Bill 84, which requires railroads to collect fees from
customers shipping certain hazardous materials and then to
remit those fees to California.

Railroads sued to enjoin SB 84, arguing that it violated
three federal statutes and the federal Constitution. The
district court concluded that the railroads were likely to
succeed on the merits of their claims. The panel held that the

*
The Honorable Nancy Freudenthal, Chief United States District
Judge for the District of Wyoming, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 BNSF V. CDTFA 3

district court did not abuse its discretion in granting the
preliminary injunction.

The panel held that, even if SB 84 imposed a fee rather
than a tax, it was preempted under the Interstate Commerce
Commission Termination Act because it had a direct effect on
rail transportation. The panel held that SB 84 was not
protected from preemption by the Hazardous Materials
Transportation Uniform Safety Act because the fees
authorized by SB 84 imposed a burden on railroads that were
not imposed on the trucking industry, and the fees therefore
were not “fair.”

The panel further held that the district court did not abuse
its discretion in evaluating irreparable harm, the balance of
the equities, and the public interest. The panel therefore
affirmed the district court’s entry of the preliminary
injunction.

Dissenting in part, Judge Ikuta disagreed with the
majority’s reasoning. She wrote that the HMTA does not
supersede the ICCTA and cannot save a state law regulating
railroad rates from preemption.

COUNSEL

Linda L. Gandara (argued), Nicholas Stern, and Carolyn
Nelson Rowan, Deputy Attorneys General; Randy L. Barrow,
Supervising Deputy Attorney General; Robert W. Byrne,
Senior Assistant Attorney General; Xavier Becerra, Attorney
General; Office of the Attorney General, Sacramento,
California; for Defendants-Appellants.
4 BNSF V. CDTFA

Raymond A. Atkins (argued), Hanna M. Chouest, and Carter
G. Phillips, Sidley Austin LLP, Washington, D.C.; John F.
Muller and Benjamin J. Horwich, Munger Tolles & Olson
LLP, San Francisco, California; for Plaintiffs-Appellees.

OPINION

W. FLETCHER, Circuit Judge:

The California State Board of Equalization (“California”)
appeals from a preliminary injunction preventing
implementation of California Senate Bill 84 (“SB 84”). Cal.
Gov’t Code §§ 8574.30–8574.48. SB 84 requires railroads to
collect fees from customers shipping certain hazardous
materials and then to remit those fees to California. Id.
§ 8574.32(a), (b). BNSF Railway Company and Union
Pacific Railroad Company (“the Railroads”) sued to enjoin
SB 84, arguing that it violates three federal statutes and the
federal Constitution. The district court found that the
Railroads were likely to succeed on the merits and entered a
preliminary injunction. We affirm.

I. Background

In June 2014, California’s Interagency Rail Safety
Working Group released a report entitled “Oil by Rail Safety
in California.” The working group noted an increase, both
nationally and in California, in spills of oil transported by rail
and concluded that California was ill prepared to handle these
spills. California’s Office of Emergency Services echoed
these concerns in a separate report a year later. In response,
the California Legislature passed SB 84. Cal. Gov’t Code
§§ 8574.30–8574.48.
 BNSF V. CDTFA 5

SB 84 charges a fee to “each person owning any of the
25 most hazardous material commodities . . . that are
transported by rail in California.” Id. § 8574.32(a). The fee
is currently established at $45.00 per loaded rail car. 19 Cal.
Code Regs. § 2704(b). If the rail car is loaded in California,
the fee is imposed when the material is loaded onto the car.
If the car is loaded outside California, the fee is imposed
when the car enters the state. Cal. Gov’t Code
§ 8574.32(b)(1). The same fee is charged irrespective of the
distance traveled in California. A railroad may charge
shippers an additional fee of up to five percent of the
established fee “to offset the administrative cost to collect the
fee.” Id. § 8574.32(b)(4)(B).

Railroads are required to collect the established fee from
shippers of the hazardous materials and to remit collected
fees to the state on a quarterly basis. Id. § 8574.32(b)(1); id.
§ 8574.38; 19 Cal. Code Regs. § 2704(c). Failure to collect
and remit the fees can result in civil or criminal sanctions.
Cal. Gov’t Code § 8574.36; Cal. Rev. & Tax. Code §§ 55042,
55121, 55363. The fees are deposited in the Regional
Railroad Accident Preparedness and Immediate Response
Fund (“the Fund”). Cal. Gov’t Code § 8574.44(a), (b). After
taking into account administrative expenses, money from the
Fund is to be used to reimburse a state fund that provided
start-up costs for the SB 84 program. Remaining money is to
be used, inter alia, to pay for “[p]lanning, developing, and
maintaining a capability” for emergency responses to
“railroad accidents involving rail cars carrying hazardous
materials,” and to “releases of hazardous materials from rail
cars”; “[a]cquisition and maintenance of specialized
equipment and supplies used to respond to a hazardous
materials release from a rail car or a railroad accident
involving a rail car”; “[s]upport of specialized regional
6 BNSF V. CDTFA

training facilities”; “[c]reation and support of a[n] . . .
emergency response team”; and “[s]upport for specialized
training for state and local emergency response officials.” Id.
§ 8574.44(d), (e)(1), (e)(2), (e)(4–7).

Emergency response equipment purchased with money
from the Fund may be used to respond to hazardous material
spills resulting from truck accidents. SB 84 specifically
provides that such equipment may be “used for emergency
response activities unrelated to regional railroad accident
preparedness and immediate response,” provided that the
Fund is reimbursed for such use. Id. § 8574.44(i) (emphasis
added). According to a February 10, 2016, memorandum
from the Governor’s Office of Emergency Services, the
“maintenance cost” of using such equipment is to be
reimbursed by “local agenc[ies]” rather than by truck owners
or operators responsible for the accident.

The Railroads contend that SB 84 violates three federal
statutes—the Interstate Commerce Commission Termination
Act of 1995 (“ICCTA”), Pub. L. No. 104-88, 109 Stat. 803
(1995); the Hazardous Materials Transportation Act
(“HMTA”), Pub. L. No. 93-633, tit. I, 88 Stat. 2156 (1975);
and the Railroad Revitalization and Regulatory Reform Act
of 1976 (“4-R Act”), Pub. L. No. 94-210, 90 Stat. 31 (1976).
They contend, further, that SB 84 violates the dormant
Commerce Clause.

“We review a district court’s grant or denial of a
preliminary injunction for abuse of discretion and the
underlying legal principles de novo.” DISH Network Corp.
v. F.C.C., 653 F.3d 771, 776 (9th Cir. 2011). To obtain a
preliminary injunction, a party requesting the injunction must
show “that he is likely to succeed on the merits, that he is
 BNSF V. CDTFA 7

likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008).

For the reasons that follow, we conclude that the district
court did not abuse its discretion in granting the preliminary
injunction.

II. Discussion

A. Preemption under the ICCTA

The 4-R Act prohibits states from imposing a “tax that
discriminates against a rail carrier.” 49 U.S.C. § 11501(b)(4).
If the assessment paid by shippers of hazardous materials is
properly characterized as a “tax,” the parties agree that SB 84
is preempted under the 4-R Act. If it is properly
characterized as a “fee,” however, it is not preempted by the
4-R Act. We need not reach the question whether the
assessment paid by shippers is a tax or a fee under the 4-R
Act because, as written, SB 84 is preempted under the ICCTA
even if it is a fee. The discussion that follows assumes that
SB 84 imposes a fee.

“In the [ICCTA], Congress abolished the [Interstate
Commerce Commission], revised the Interstate Commerce
Act, and transferred regulatory functions under that Act to the
[Surface Transportation Board].” DHX, Inc. v. Surface
Transp Bd., 501 F.3d 1080, 1082 (9th Cir. 2007). The
ICCTA continued a decades-long trend of deregulating
railroads. Id. As part of this deregulation program, the
ICCTA included a broad preemption provision. Specifically,
the ICCTA provides:
8 BNSF V. CDTFA

The jurisdiction of the [Surface
Transportation] Board over –

(1) transportation by rail carriers, and the
remedies provided in this part with respect
to rates, classifications, rules . . . ,
practices, routes, services, and facilities of
such carriers; . . .

...

is exclusive. Except as otherwise provided in
this part, the remedies provided under this
part with respect to regulation of rail
transportation are exclusive and preempt the
remedies provided under Federal or State law.

49 U.S.C. § 10501(b) (emphasis added). This provision
grants the Surface Transportation Board exclusive jurisdiction
over “a wide range of state and local regulation of rail
activity.” Ass’n of Am. Railroads v. S. Coast Air Quality
Mgmt. Dist., 622 F.3d 1094, 1096 (9th Cir. 2010) (emphasis
added). “It is difficult to imagine a broader statement of
Congress’s intent to preempt state regulatory authority over
railroad operations.” City of Auburn v. United States,
154 F.3d 1025, 1030 (9th Cir. 1998) (citation omitted)
(emphasis added).

The ICCTA does not “preempt state or local laws if they
are laws of general applicability that do not unreasonably
interfere with interstate commerce.” Am. Railroads, 622 F.3d
at 1097. The ICCTA “preempts all state laws that may
reasonably be said to have the effect of managing or
governing rail transportation, while permitting the continued
 BNSF V. CDTFA 9

application of laws having a more remote or incidental effect
on rail transportation. What matters is the degree to which
the challenged regulation burdens rail transportation[.]” Id.
at 1097–98 (citations and internal quotation marks omitted).

SB 84 requires shippers to pay to railroads a fee currently
established at $45.00 per loaded car, and an additional fee of
up to five percent of the established fee. Because these fees
are paid by shippers as part of the price for shipping
hazardous materials by rail, we conclude that they are “rates”
within the meaning of § 10501(b). SB 84 is neither a law of
“general applicability,” nor a law with only a “remote or
incidental effect on rail transportation.” SB 84 imposes fees
on shippers of hazardous materials in California, but only if
they ship by rail. It thus “targets” the railroad industry.
Adrian & Blissfield R. Co. v. Vill. of Blissfield, 550 F.3d 533,
541 (6th Cir. 2008). Further, in requiring railroads to collect
fees from shippers, SB 84 has a direct, rather than a “remote
or incidental” effect on rail transportation. Am. Railroads,
622 F.3d at 1097–98.

Considered in isolation, the ICCTA would preempt SB
84. However, another federal statute, the HMTA, protects
from preemption certain state, local and tribal fees related to
the transportation of hazardous materials.

B. HMTA Protection from Preemption

In 1990, Congress substantially amended the HMTA by
passing the Hazardous Materials Transportation Uniform
Safety Act (“HMTUSA”). The following provision was
added to the HMTA as part of the revision:
10 BNSF V. CDTFA

Fees.—A State or political subdivision thereof
or Indian tribe may not levy any fee in
connection with the transportation of
hazardous materials that is not equitable and
not used for purposes related to the
transportation of hazardous materials,
including enforcement and the planning,
development, and maintenance of a capability
for emergency response.

Hazardous Materials Transportation Uniform Safety Act of
1990, Pub. L. 101-615, § 112(b), 104 Stat. 3244, 3260 (1990).
In 1994, this provision was amended to its current form as
part of an effort to “revise, codify, and enact without
substantive change” certain transportation laws. Act of July
5, 1994, Pub. L. 103-272, 108 Stat. 745, 783 (1994). It now
reads:

Fees.—(1) A State, political subdivision of a
State, or Indian tribe may impose a fee related
to transporting hazardous material only if the
fee is fair and used for a purpose related to
transporting hazardous material, including
enforcement and planning, developing, and
maintaining a capability for emergency
response.

49 U.S.C. § 5125(f)(1). California argues that SB 84 assesses
a fee “for a purpose related to transporting hazardous
material,” that the fee is “fair,” and that SB 84 is therefore
authorized by the HMTA.

We will not easily conclude that one federal statute
preempts another. “A party seeking to suggest that two
 BNSF V. CDTFA 11

statutes cannot be harmonized, and that one displaces the
other, bears the heavy burden of showing ‘ “a clearly
expressed congressional intention” ’ that such a result should
follow.” Epic Systems Corp. v. Lewis, 138 S.Ct. 1612, 1624,
___ U.S. ___ (2018) (internal citation omitted). Specific to
the ICCTA, we have written, “If an apparent conflict exists
between ICCTA and a federal law, then the courts must strive
to harmonize the two laws, giving effect to both laws if
possible.” Am. Railroads, 622 F.3d at 1097 (emphasis in
original) (citing In re Box & Me. Corp. & Town of Ayer,
Mass., No. 33971, 2001 WL 458685, at *6 n.28 (S.T.B. Apr.
30, 2001)). The Surface Transportation Board wrote in Town
of Ayer, “[I]f two Federal statutes are ‘capable of
coexistence,’ the statutes should be harmonized and each
should be regarded as effective unless there is a ‘positive
repugnancy’ or an ‘irreconcilable conflict’ between the laws.”
Id. We owe Chevron deference to the STB’s “guidance on
the scope of ICCTA preemption.” Am. Railroads at 1097
(citing DHX, Inc. v. Surface Trnsprotation Bd., 501 F.3d
1080, 1086 (9th Cir. 2007)).

We conclude that the ICCTA and the HMTA are easily
harmonized by reading § 5125(f)(1) of the HMTA to protect
from preemption the fees specifically authorized in that
section.

The Railroads argue on two grounds that § 5125(f)(1)
does not protect the fees authorized in SB 84 from
preemption by the ICCTA. First, they argue that § 5125(f)(1)
does not independently authorize a State to charge fees for
transportation of hazardous materials by rail. Second, they
argue that the fees authorized in SB 84 are not “fair” within
the meaning of § 5125(f)(1). We disagree with the first
12 BNSF V. CDTFA

argument but agree with the second. We consider the
arguments in turn.

1. Affirmative Authorization to Charge a Fee Related to
Transportation of Hazardous Materials by Rail

The Railroads argue that § 5125(f)(1) does not
independently protect a State, local, or tribal fee from
preemption under the ICCTA, no matter how “fair” that fee
might be. The Railroads assert that “the linchpin of
California’s HMTA theory—a claim that ‘HMTA expressly
permits states to impose fees’—is textually indefensible.”
Appellees’ Brief at 33. The Railroads argue that the phrase
“may impose a fee,” contained in § 5125(f)(1), does not
authorize a state to charge a fee for the transportation of
hazardous materials, limited by the phrase “only if the fee is
fair.” They argue that under § 5125(f)(1) a state-imposed fee
for the transportation of hazardous materials must be
authorized by some other, unspecified federal law. The
Railroads argue that the “only if” phrase of § 5125(f)(1)
addresses the fees authorized by that other, unspecified
federal law. It is undisputed that there is no other federal law
authorizing a State to charge a fee for the interstate
transportation of hazardous materials.

We disagree with the Railroads. The Railroads cite only
Township of Tinicum v. U.S. Department of Transportation,
582 F.3d 482 (3d Cir. 2009), in support of their argument. In
Tinicum, some runways of the Philadelphia International
Airport were located within the borders of the Township of
Tinicum. For many years, under an agreement between
Philadelphia and the Township, Philadelphia paid the
Township for use of its land as runways. The agreement
expired in 2007. When the parties were unable to reach a
 BNSF V. CDTFA 13

new agreement, the Township passed an ordinance assessing
a tax against airlines that used runways within Township
borders. Id. at 484.

The United States Department of Transportation (“DOT”)
concluded that the ordinance was preempted by the federal
Anti-Head Tax Act (“AHTA”). Id. at 487. “Except as
provided in subsection (c),” § 40116 of the AHTA prohibited
States and their political subdivisions from charging four
specified types of fees or taxes on air commerce. Id. at 486
(citing 49 U.S.C. § 40116(b)). Subsection (c) provided that
a State or its political subdivision “may levy or collect a tax”
on air commerce “only if the aircraft takes off or lands in the
State or political subdivision as part of the flight.” 49 U.S.C.
§ 40116(c) (emphasis added). Subsection (c) was a
recodification of an earlier federal statute. The Township
conceded that the earlier version of the statute would not have
authorized the challenged tax. Tinicum, 582 F.3d at 487. The
recodification stated that it made no “substantive change”
from the prior law. Id. at 486. “Bas[ing] its decision
primarily on the recodification law,” the DOT concluded that
subsection (c) was not intended as a change of law, and
therefore did not authorize the tax. Id. at 487. The Third
Circuit denied the Township’s petition for review of the
DOT’s decision. Without relying on Chevron deference, the
court agreed with the DOT’s interpretation of the AHTA,
holding that the “may” phrase did not affirmatively authorize
the collection of a tax, and that the “only if” phrase imposed
a necessary but not sufficient condition for imposing the tax.
Id. at 488–89.

We do not challenge here the correctness of the Third
Circuit’s decision in Tinicum, which agreed with the DOT’s
interpretation of the AHTA. But even if correct, the decision
14 BNSF V. CDTFA

is not applicable to the HMTA. The fees provision at issue
here was enacted as part of the Hazardous Materials
Transportation Uniform Safety Act of 1990. Pub. L. No. 101-
615, § 112(b), 104 Stat. 3244, 3260 (1990). Like the
provision at issue in Tinicum, the fees provision was later
recodified and revised into its current form “without
substantive change.” Act of July 5, 1994, Pub. L. No. 103-
272, 108 Stat. 745, 745, 783 (1994); see also Hazardous
Materials Transportation Authorization Act of 1994, Pub. L.
No. 103-311, § 107, 108 Stat. 1673, 1674 (1994)
(redesignating the provision as subsection (g)(1) but not
altering the language); Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users, Pub. L. No.
109-59, § 7123, 119 Stat. 1144, 1907 (2005) (redesignating
the provision as subsection (f)(1) but not altering the
language). Here, however, unlike in Tinicum, there is no
undisputed meaning of the earlier statute upon which we must
“primarily” rely in interpreting the language. We also note
that in the case before us there is no agency interpretation to
which we owe Chevron deference.

A plain-language analysis of the HMTA tells us that
§ 5125(f)(1) affirmatively authorizes a State to charge a fee
for transportation of hazardous materials, subject only to the
qualification that the fee be “fair.” The syntactical structure
of § 5125(f)(1)—a person or entity “may” perform some act
“only if” some criterion is satisfied—is used repeatedly and
consistently in the HMTA. As used in the HMTA, the “may”
phrase affirmatively authorizes the performance of the
specified act by a person or entity. The “only if” phrase
limits the scope of that authorization. See, e.g., 49 U.S.C.
§ 5104(a)(1) (“A person may represent . . . that . . . a package
. . . is safe . . . only if the package . . . meets the requirements
of . . . this chapter.”); id. § 5108(a)(3) (“A person . . . may
 BNSF V. CDTFA 15

transport . . . a package . . . only if the person has a statement
on file . . . .”); id. § 5109(a) (“A motor carrier may transport
. . . hazardous material only if the carrier holds a safety
permit . . . .”); id. § 5109(f) (“A person offering hazardous
material for motor vehicle transportation . . . may offer the
material to a motor carrier only if the carrier has a safety
permit . . . .”); id. § 5109(g) (“A motor carrier may provide
transportation . . . only if the carrier complies with conditions
. . . .”); id. § 5116(a)(3) (“The Secretary may make a grant to
a State or Indian tribe . . . only if . . . the State or Indian tribe
certifies . . . .”); id. § 5116(b) (“The Secretary may make a
grant to a State . . . only if the State certifies . . . .”); id.
§ 5125(f)(1) (“A State, political subdivision of a State, or
Indian tribe may impose a fee . . . only if the fee is fair . . . .”).
See also Massachusetts v. U.S. Dep’t of Transp., 93 F.3d 890,
895 (D.C. Cir. 1996) (“[Section 5125(f)(1)] permit[s] states
to impose their own fees ‘related to transporting hazardous
material,’ but only ‘if the fee is fair and used for a purpose
related to transporting hazardous material.’ ”).

Where the plain language of a provision is open to more
than one interpretation, we may look to legislative history to
clarify its meaning. See United States v. Gallegos, 613 F.3d
1211, 1214 (9th Cir. 2010). Given the consistent use of the
“may” but “only if” structure throughout the HMTA, we do
not believe the language of § 5125(f)(1) is ambiguous.
However, because our concurring colleague believes that the
statute in its current form is ambiguous, we will examine the
legislative history. That history not only confirms that
§ 5125(f)(1) is an affirmative authorization of state-imposed
fees related to the transportation of hazardous materials so
long as they are “fair.” It also confirms that § 5125(f)(1) was
intended to protect such fees from preemption by federal
laws, like the ICCTA, that regulate transportation by rail.
16 BNSF V. CDTFA

The HMTUSA, the source of § 5125(f)(1), was enacted in
1990 as an amendment of the HMTA. It grew out of a variety
of proposals to amend the HMTA. See S. Rep. No. 101-499
at 3 (1990) (listing eight bills to amend the HMTA that were
before the Senate Committee on Commerce, Science, and
Transportation when the Committee considered Senate Bill
2936). House Bill 3520, introduced by Representative
Thomas Luken, was among these proposals. H. 3520, 101st
Cong. (1989). The bill contained a provision virtually
identical to the fees provision at issue here. Id. § 14.

Representative Luken’s bill was referred to the
Committee on Energy and Commerce, of which Luken was
a member. The Committee then favorably reported on the
bill. H.R. Rep. No. 101-444, pt. 1, at 1. The Committee
Report described the bill at length, including the provision
that eventually became § 5125(f)(1). The Report tells us two
things.

First, the Report tells us that the predecessor to
§ 5125(f)(1), as originally enacted in 1990, affirmatively
authorized a State to charge fees related to the transportation
of hazardous materials. The Report explained that the fees
“would provide that a non-Federal governmental entity may
levy . . . fees, but would require that . . . such . . . fees be
reasonable[.]” H.R. Rep. No. 101-444, pt. 1, at 49 (emphasis
added). The Report “recognize[d] the critical role State and
local governments must play in order to effectuate a
comprehensive national hazardous materials program,” and
stated that state “authority . . . should properly extend to
being able to fund legitimate activities directly connected
with hazardous materials transportation programs.” Id. at
49–50. The Report “emphasize[d]” that the bill “make[s]
clear that states may adopt and enforce hazardous materials
 BNSF V. CDTFA 17

laws, regulations, and other requirements that conform to the
bill’s requirements.” Id. at 53–54 (emphasis in original). It
noted that “[a] State’s ability to enforce such [laws] includes
the ability to impose, collect, and utilize . . . fees[.]” Id.
(emphasis added).

Second, the Report unambiguously stated that a State’s
authority to charge fees under § 5125(f)(1) extended to
transportation by rail. The bill as a whole was addressed to
the transportation of hazardous materials by interstate
transportation, including transportation by rail. See 49 U.S.C.
§ 5104 (authorizing companies to represent that a “rail freight
car” contains hazardous material and prohibiting tampering
with “rail freight car[s]” so designated); id. § 5105(b), (c)
(“[T]he Secretary shall conduct a study comparing the safety
of using trains . . . with the safety of using other methods of
rail transportation for transporting that waste and fuel. . . .
[A]fter considering the results of the study . . ., the Secretary
shall prescribe amendments to existing regulations that the
Secretary considers appropriate to provide for the safe rail
transportation of high-level radioactive waste . . . .”); id.
§ 5107(f) (“The Secretary shall ensure that . . . railroad
signalmen receive general awareness and familiarization
training and safety training . . . .”); id. § 5108(a)(1)(B)
(requiring persons transporting more than 25 kilograms of
explosive material in a “rail car” to register with the
government); id. § 5110(b) (requiring that shipping papers be
kept on trains carrying hazardous materials and be presented
to federal, state, or local authorities responding to “an
accident or incident involving the . . . train”); id.
§ 5121(d)(2), (5) (authorizing the Secretary to issue an “out-
of-service” order to “an aircraft, vessel, motor vehicle, train,
railcar, locomotive, other vehicle, [etc.]”).
18 BNSF V. CDTFA

The Report did not specifically address the preemption
provision of the ICCTA because that provision was enacted
in 1995, six years after the Report was written. But the bill
and the Report did address preemption. A federal statute with
a broad preemption provision, the Federal Railroad Safety
Act (“FRSA”), was already part of federal law. See
49 U.S.C. § 20106. Enacted in 1970, the FRSA had been in
effect for twenty-one years. The Report explained that the
bill was designed “expressly to override any notion that the
preemption language contained in [the FRSA] governs the
regulation of hazardous materials transportation by rail and
overrule any court decision that relies on the FRSA to
invalidate State requirements relating to the transportation of
hazardous materials by rail insofar as they conform to the
requirements of this bill.” H.R. Rep. No. 101-444, pt. 1, at
53–54 (1990). The Committee’s explicit intent was “to make
clear that States may adopt and enforce hazardous material
laws, regulations, and other requirements that conform to the
bill’s requirements.” Id.

House Bill 3520 never became law as House Bill 3520.
Senate Bill 2936, which was eventually enacted as the
HMTUSA, did not initially include a provision authorizing
States to charge fees related to the transportation of hazardous
materials. S. 2936, 101st Cong. (1990). However, when
Senate Bill 2936 reached the House, Representative Luken
proposed an “amendment in the nature of a substitute.”
136 Cong. Rec. 34168 (1990). That amendment incorporated
the fees provision from House Bill 3520 into the Senate Bill.
136 Cong. Rec. 34168, 34181 (1990). Senate Bill 2936, as
thus amended, passed both houses and became the HMTUSA.

The preemption provision of the ICCTA is worded very
broadly and generally. It provides for exclusive Surface
 BNSF V. CDTFA 19

Transportation Board jurisdiction over “transportation by rail
carriers, and the remedies provided in this part with respect
to rates, classifications, rules . . . , practices, routes, services,
and facilities of such carriers[.]” 49 U.S.C. § 10501(b)(1).
Under one principle of federalism and two canons of
construction, we should not read the preemption provision of
the ICCTA to eliminate the protection from preemption
provided by § 5125(f)(1) of the HMTA.

First, federalism entails a “traditional presumption against
the federal preemption of state rules in areas of traditional
state regulation.” Comm. of Mass., 93 F.3d at 894. One of
those areas of traditional state regulation is protection of state
residents from physical and environmental hazards. See, e.g.,
National Solid Wastes Management Ass’n v. Killian, 918 F.2d
671 (7th Cir. 1990) (observing that “[e]nvironmental
regulation has long been recognized as an ‘historic police
power[] of the States.’”) (quoting Huron Portland Cement
Co. v. City of Detroit, 362 U.S. 440, 442 (1960)), aff’d,
505 U.S. 88 (1992). The D.C. Circuit relied on this
presumption in applying § 5125 of the HMTA to conclude
that a Massachusetts bonding requirement for a hazardous
waste transporter was not preempted. Id. (“[T]he regulation
of how waste may be picked up or dropped off in a state must
be thought an area of traditional state control.”).

Second, “[w]here there is no clear intention otherwise, a
specific statute will not be controlled or nullified by a general
one, regardless of the priority of enactment.” Crawford
Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987)
(emphasis omitted) (quoting Radzanower v. Touche Ross &
Co., 426 U.S. 148, 153 (1976)). The preemption provision of
the ICCTA is broad and general, providing without
differentiation for preemption of state and local regulation of
20 BNSF V. CDTFA

railroad “rates, classifications, rules . . . , practices, routes,
services, and facilities.” Section 5125(f)(1), on the other
hand, is narrow and specific. Though it does not differentiate
between rail and truck transportation, it protects from
preemption only fees relating to the transportation of
hazardous materials, and does so only if those fees are fair.

Third, “in approaching a claimed conflict [between two
federal laws], we come armed with the ‘strong presum[ption]’
that repeals by implication are ‘disfavored’ and that
‘Congress will specifically address’ preexisting law when it
wishes to suspend its normal operations in a later statute.”
Epic Systems, 138 S.Ct. at 1624 (quoting United States v.
Fausto, 484 U.S. 439, 452–53 (1988)). The predecessor to
§ 5125(f)(1) was enacted in 1990, and was recodified as
§ 5125(f)(1) without substantive change in 1994. The ICCTA
was enacted in 1995, a year later. There is nothing in the text
of the ICCTA, or in its legislative history, to indicate that
Congress intended to restrict or overrule the protection from
preemption provided by § 5125(f)(1). Congress knew that
§ 5125(f)(1) provided protection from preemption by federal
law, in particular by the Federal Railroad Safety Act. That is,
Congress knew that § 5125(f)(1) permitted States to impose
fees related to the transportation of hazardous materials by
rail, and to do so despite the FRSA. If Congress intended in
the ICCTA to reverse course and no longer to permit States
to impose such fees, one would expect Congress to have said
so. But Congress said nothing.

2. Fees Must Be “Fair”

Conceding for the sake of argument that the HMTA
authorizes a State to charge a fee for transportation of
hazardous materials by rail so long as the fee is “fair,” the
 BNSF V. CDTFA 21

Railroads argue that the fees authorized by SB 84 are not fair
within the meaning of § 5125(f)(1). They argue that SB 84 is
unfair because it imposes a burden on railroads that it does
not impose on the trucking industry. We agree.

According to a declaration by an expert employed by the
Railroads, “railroads and trucks transport roughly equivalent
amounts of hazardous materials on a ton-mile basis.” The
risks, and associated costs, of hazardous materials spills are
substantial for both rail and trucking. SB 84 imposes costs on
shippers if they ship hazardous materials by rail but not if
they ship such materials by truck, thus favoring the trucking
industry at the expense of railroads.

Rail accidents are less frequent than trucking accidents,
but some rail accidents are catastrophic. As stated by a
California Legislative Analyst’s Office report released prior
to the passage of SB 84, “a rail accident is potentially of a
much larger scale when it does occur.” For example, the
report referred to a 1991 train derailment in Dunsmuir,
California that spilled “19,000 gallons of pesticide into the
Sacramento River.” The spilled pesticide “killed fish and
vegetation along the river for forty miles and caused wide-
spread health problems for area residents.” Union Pacific Rr.
Co. v. California Public Utilities Comm’n, 346 F.3d 851, 856
(9th Cir. 2003). The railroad settled a federal suit arising out
of the spill for $38,000,000. As a further example, an
Addendum to a Notice of Emergency Rulemaking issued by
the California Governor’s Office referred to a “devastating
derailment in Mosier, Oregon” in 2016. “[A]n estimated
42,000 gallons of crude oil spilled and rapidly caught fire.
The nearby communities, including an elementary school,
had to be evacuated. The oil entered the nearby waterway
22 BNSF V. CDTFA

and the full extent of the damage to the environment is not
fully known.”

Trucking accidents, on the other hand, are more frequent
but are smaller in scale. According to the U.S. Department of
Transportation, from 2010 to 2014 in the United States there
were 67,639 “incidents” involving transportation of
hazardous materials on highways, compared to 3,530
incidents involving transportation by rail. According to the
report of the Legislative Analyst, during the period between
2005 and 2015 in California 92% of the costs associated with
hazardous materials spills arose out of trucking accidents.
Notably, however, that time period does not include the
catastrophic 1991 Dunsmuir derailment.

Recognizing the danger of transporting hazardous
materials by truck, SB 84 provides that equipment purchased
using fees collected from rail shippers under SB 84 may be
used to respond to spills resulting from trucking accidents.
See Cal. Gov’t Code § 8574.44(i). However, local
governmental entities—rather than the truck owner or
operator involved in the spill—must reimburse the state Fund
for use of the equipment. Trucks transporting hazardous
materials are required to pay a licensing fee, see Cal. Veh.
Code § 32000.5, but the licensing and renewal fees—$100
and $75, respectively—are trivial in comparison to the per-
rail-car fee on hazardous material shipments under SB 84.
13 Cal. Code Regs. § 1160.4(g)(2).

California could easily have imposed on railroads and
trucking companies equivalent, or roughly equivalent, fees
related to the transportation of hazardous materials. Indeed,
it did so from 1991 to 1995, under a statute that imposed fees
on both railroads and trucking companies. The proceeds were
 BNSF V. CDTFA 23

deposited in the Rail Accident Prevention and Response
Fund, which was then used to fund local hazardous waste
response equipment and training. See Cal. Pub. Util. Code
§§ 7713, 7714.5(e). Prior to the passage of SB 84, the
California legislature considered and rejected a plan to
finance the Fund in a similar manner, assessing fees against
both railroads and trucking companies. Cal. State Assemb.
102, 2015 Assemb., Reg. Sess. (Cal. 2015). Instead of
adopting such a plan, the legislature passed SB 84, assessing
fees against only railroads.

Because the fees authorized by SB 84 favor trucking
companies over railroads, they are not “fair” and do not come
within the protection provided by § 5125(f)(1). We therefore
agree with the Railroads and conclude that SB 84 is
preempted by the ICCTA.

3. Dissenting View of Our Concurring Colleague

Our colleague concurs in the result, but dissents from our
reasoning. According to our colleague’s concurrence,
§ 5125(f)(1) is entirely preempted by the ICCTA insofar as it
deals with shipment by rail. The concurrence concludes that
any state-imposed fee related to the transportation by rail of
hazardous materials is invalid, even if it is “fair.” The
concurrence makes a number of arguments in support of its
conclusion. We respectfully disagree with them.

First, the concurrence argues that the ICCTA leaves no
room for any state regulation of rates. The concurrence states
that there has been “a century of federal laws making
regulation of railroad rates the exclusive prerogative of the
federal government.” Conc. Op. at 31. Further, the
concurrence cites a decision of the Surface Transportation
24 BNSF V. CDTFA

Board: “[A]ny state regulation of railroad rates is ‘preempted
regardless of the context or rationale for the action’ because
it is ‘a per se unreasonable interference with interstate
commerce.’ ” Conc. Op. at 33 (citing CSX Transportation,
Inc.—Petition for Declaratory Order, STB Finance Docket
No. 34662, 2005 WL 1024490, at *2–*3 (S.T.B. May 3,
2005)).

The concurrence states the matter too generally. We
agree with the concurrence that the preemption provision of
the ICCTA is broad. Indeed, we would entirely agree with
the concurrence if the question were whether the ICCTA
entirely preempts a State from regulating railroad rates when
the State’s only source of authority is a state law passed under
its traditional police powers. But the question here is
different. The question is whether a State has been
authorized by federal law to charge a fair fee related to the
transportation of hazardous materials. In our view, the text of
that federal law, § 5125(f)(1), is clear. The legislative history
of § 5125(f)(1), if we must resort to it, tells us that Congress
intended afirmatively to authorize state-imposed fees related
to the transportation of hazardous materials so long as they
are “fair.” Congress gave no indication that in enacting the
broad preemption provision of the ICCTA it intended to
preempt the fees that it had statutorily authorized only a year
before.

Similarly, the Surface Transportation Board in CSX
Transportation recited broad general principles:

[There are] two broad categories of state
and local actions to be preempted regardless
of the context or rationale for the action. The
first is any form of state or local permitting or
 BNSF V. CDTFA 25

preclearance that, by its nature, could be used
to deny a railroad the ability to conduct some
part of its operations . . . .

Second, there can be no state or local
regulation of matters directly regulated by the
Board—such as the construction, operation,
and abandonment of rail lines; railroad
mergers, line acquisitions, and other forms of
consolidation; and railroad rates and service.

Both types of categorically preempted
actions by a state or local body would directly
conflict with exclusive federal regulation of
railroads.

2005 WL 1024490 at *2–*3 (citations omitted). But the
question actually at issue in CSX Transportation was narrow.
The question was whether the District of Columbia could ban
rail transportation of hazardous materials within a 2.2-mile
radius of the United States Capitol Building. The District
relied only on its police powers in support of its law. It cited
no provision of the HMTA, or of any other federal statute,
authorizing it to control railroad routes. Not surprisingly in
that circumstance, the STB held that the ban was preempted.

Second, the concurrence argues that the text of the fee
provision, as it was originally enacted in 1990, is
unambiguous. It contends that § 5125(f)(1), as enacted in
1990, forbade States from imposing unfair fees and did not
affirmatively authorize States to assess fair fees. According
to the concurrence, the 1990 text did nothing more than
“preclude[] states from exercising their legislative authority
to impose inequitable fees in connection with hazardous
26 BNSF V. CDTFA

materials transportation.” Conc. Op. at 44. The concurrence
argues that because the recodification of § 5125(f)(1) in 1994
was not intended to work any substantive change, any
ambiguity in the current wording of § 5125(f)(1) must be
resolved by looking to the 1990 wording, which, in the view
of the concurrence, was unambiguous. There are two
problems with this argument.

The initial problem is that if the 1990 and 1994 texts of
§ 5125(f)(1) are substantively the same (as the concurrence
agrees they are), the 1990 and 1994 wordings are equally
authoritative. The 1990 text is ambiguous at best, and the
legislative history shows that it was intended to provide
affirmative authorization to the States to charge fair fees. The
Committee Report for House Bill 3520 explained that the fees
provision, as then worded, “would provide that a non-Federal
governmental entity may levy . . . fees, but would require that
. . . such . . . fees be reasonable[.]” H.R. Rep. No. 101-444,
pt. 1, at 49 (emphasis added). The further problem is that the
1994 text, when considered in paria materia with
syntactically identical provisions in the rest of the 1994
statute, is unambiguous in affirmatively authorizing States to
charge fair fees related to the transportation of hazardous
materials.

Third, the concurrence refuses to follow the rule of
construction under which we give effect to the particular over
the general. The rule directs us to compare the statutory
provisions at issue, but the concurrence does not do so.
Instead, the concurrence considers the particular issue being
litigated rather than the actual statutory provisions: “Because
the only question here is whether the HMTA supercedes
ICCTA on the issue of regulating railroad rates, our focus
must be on how the two statutes address that particular issue.”
 BNSF V. CDTFA 27

Conc. Op. at 38. The concurrence focuses only on the word
“rates,” ignoring the other words in the preemption provision
of the ICCTA that make clear the generality of the statute.
The statutory provision, which the concurrence would have
us ignore, is extremely broad, covering “transportation by rail
carriers, and the remedies provided in this part with respect
to rates, classifications, rules . . . . , practices, routes, services
and facilities of such carriers; . . . .” 49 U.S.C. § 10501(b).
Section 5125(f)(1), by contrast, is fairly narrow, authorizing
only fees for the transportation of hazardous materials, and
only fees that are “fair.”

Fourth, the concurrence would read § 5125(f)(1) into
oblivion. The concurrence would read § 5125(f)(1) to permit
the State to assess fees from shippers of hazardous materials
by truck, but to forbid the State to assess any fees whatsoever
from shippers of such materials by rail. But if it is unfair to
charge fees only for shipment by rail, it is equally unfair to
charge fees only for shipment by truck. Under the
concurrence’s interpretation of § 1525(f)(1) there would be
no possibility of a fair fee. In effect, the concurrence would
read § 5125(f)(1) out of the U.S. Code. We do not believe
Congress intended § 5125(f)(1) to suffer such a fate.

The concurrence disagrees, based on alternative
contentions. The concurrence contends that although the
State cannot require a railroad to charge fees and then remit
those fees to the State, the State could assess those fees
directly from the shippers. The concurrence relies in part on
a “suggestion” by the Railroads. Conc. Op. at 42 (“[T]he
railroads have suggested that if the state collected a charge
from the shippers directly . . . the charge would not be subject
to STB jurisdiction and would not qualify as a rate.”). We
disagree that the Railroads have made such a suggestion, in
28 BNSF V. CDTFA

the sense of endorsing it. The most that the Railroads have
done is point out that we would have a different case if the
State were to collect the fee directly, and then to argue
strenuously that, however that case might come out, this case
is easy because the Railroads cannot be required to collect the
fee themselves. See Appellees’ Brief at 28 (“If the ICCTA
permits a State to impose a hypothetical charge directly on
rail shippers, it would be because the STB has no jurisdiction
over the direct charge.”) (first emphasis added).

We are skeptical that the ICCTA would allow the State to
do directly what it cannot do indirectly. To allow a State to
charge a shipper a fee directly but to forbid it to charge the
same fee indirectly would be to choose form over substance.
Whether a shipper pays a fee directly to the State or pays the
fee to a railroad for remittance to the State, the economic
consequence is the same. Under either alternative, the fee is
part of the price the shipper pays to transport its hazardous
material by rail. As we wrote in Sanchez v. Aerovias de
Mexico, S.A., 590 F.3d 1027, 1030 (9th Cir. 2010), “ ‘[I]t is
freshman-year economics that higher prices mean lower
demand, and that consumers are sensitive to the full price that
they must pay, not just the portion of the price that will stay
in the seller’s coffers.’ ” (quoting Buck v. Am. Airlines, Inc.,
467 F.3d 29, 36 (1st Cir. 2007)).

In the alternative, the concurrence contends that assessing
a fee solely against the trucking industry would be fair “[s]o
long as California imposes a fee on truck shipments of
hazardous waste that is commensurate with the danger posed
by such shipments.” Conc. Op. at 41. According to the
concurrence, charging a fee for all shipments of hazardous
materials by truck while charging no fee whatsoever for such
shipments by rail would be “commensurate” with the dangers
 BNSF V. CDTFA 29

posed by the two methods of shipping. It is not true that
charging no fee whatsoever to shippers by rail would be
“commensurate” and therefore “fair.”

As is made clear from the record, shipment by truck and
shipment by rail both pose very serious risks. The
concurrence relies on the Legislative Analyst’s report to
suggest that 92% of the costs of spills might properly be
allocated to trucks as “commensurate” with the risk. Conc.
Op. at 41. The Analyst’s report did state that 92% of the
costs associated with hazardous materials spills in California
were due to trucking accidents, but the period at issue was
2005 to 2015. The record is clear that railroad accidents,
while less frequent than trucking accidents, are often
catastrophic when they do occur. Such accidents include the
Dunsmuir pesticide spill in California in 1991 (outside the
2005–2015 period considered in the Analyst’s report), the oil
spill in Mosier, Oregon, in 2016, and several other
catastrophic railroad accidents documented in the record. In
the case of the Dunsmuir spill, clean up costs and other
damages were paid only after the fact and only after suit was
brought. As recounted above, the suit was settled for
$38,000,000.

The concurrence contends that it would be
“commensurate,” and therefore “fair,” to recover clean up
costs by two different methods—assessing up-front per-
shipment fees from truckers, but requiring after-the-fact
litigation for any money paid by railroads. The two methods
of payment are based on different theories of liability. An up-
front, per-shipment system is a no-fault system. Truckers pay
the fee regardless of fault, and the collected fees are used to
clean up spills regardless of fault. By contrast, an after-the-
fact, litigation-based system is a fault-based system.
30 BNSF V. CDTFA

Railroads would be required to pay for spills only if found at
fault for the spill. It would hardly be “fair” to subject the
trucking industry to no-fault liability while subjecting
railroads only to a fault-based liability.

C. Dormant Commerce Clause

Because we hold that SB 84 is preempted on statutory
grounds, we need not decide whether it is invalid under the
dormant Commerce Clause.

D. Irreparable Harm, Balance of Equities, and Public
Interest

The district court found that the Railroads would suffer
irreparable harm if an injunction did not issue because some
shippers would choose to ship hazardous materials by truck,
or by other means, in order to avoid paying the fees mandated
in SB 84. The district court further found that a weighing of
the equities favored the Railroads. It acknowledged that fees
collected during the pendency of this lawsuit could fund
additional accident preparedness, which could help avert
future damage to Californians and to the environment. It
concluded, however, that these benefits were more
speculative, and therefore less weighty, than the economic
harms to the Railroads. The district court did not abuse its
discretion in so concluding. Finally, the district court found
that the injunction was consistent with the public interest. It
did not abuse its discretion in so finding.
 BNSF V. CDTFA 31

Conclusion

We conclude that the district court did not abuse its
discretion in entering a preliminary injunction against the
implementation of SB 84.

AFFIRMED.

IKUTA, Circuit Judge, dissenting in part:

In contradiction to a century of federal laws making
regulation of railroad rates the exclusive prerogative of the
federal government, see, e.g., City of Auburn v. U.S. Gov’t,
154 F.3d 1025, 1029 (9th Cir. 1998), the majority today rules
that states have the authority to regulate railroad rates. One
would expect clear authorization from Congress before
making such an unprecedented ruling, but the majority
merely points to a federal statute providing that states may
impose fees on the transportation of hazardous materials only
if the fees are fair. In reaching this conclusion, the majority
not only misreads the federal statutes at issue, but blunders in
its application of longstanding rules for harmonizing federal
statutes. I dissent.

I

“Railroads have been subject to comprehensive federal
regulation for [more than] a century.” United Transp. Union
v. Long Island R.R. Co., 455 U.S. 678, 687 (1982), overruled
on other grounds by Garcia v. San Antonio Metro. Transit
Auth., 469 U.S. 528 (1985). In the late 19th century, federal
regulation of railroad rates was “deemed necessary for the
32 BNSF V. CDTFA

protection of the interests of the people to control and
circumscribe the exercise of the monopoly powers of
[railway] corporations,” and to prevent railroads “from
making extortionate charges and unlawful exactions upon the
people.” H.R. Rep. No. 49-902, at 2 (1886). Accordingly,
Congress enacted the Interstate Commerce Act of 1887
(ICA), which provided that “[a]ll charges made for any
service rendered or to be rendered in the transportation of
passengers or property [by rail], . . . shall be reasonable and
just; and every unjust and unreasonable charge for such
service is prohibited and declared to be unlawful.” Interstate
Commerce Act of 1887, ch. 104, 24 Stat. 379, 379. To
enforce this federal regulation of railroad rates, Congress
created the Interstate Commerce Commission (ICC) and
endowed it with the power to determine “the reasonableness
of a published rate.” Ariz. Grocery Co. v. Atchison, T. &
S. F. Ry. Co., 284 U.S. 370, 384 (1932). With later
amendments in the 1920s, Congress “granted the [ICC]
power to fix the maximum reasonable rate . . . or the
maximum and minimum limits within which the carriers’
published rate must come.” Id. at 386. Thus, the ICC
became “the first great federal regulatory rate-setting
agency.” Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct.
1378, 1388 (2015) (Breyer, J., concurring).

A century later, Congress enacted the ICC Termination
Act of 1995 (ICCTA), which built on the ICA and reinforced
the policies that “promoted growth and stability in the surface
transportation sector.” H.R. Rep. No. 104-311, at 93 (1995).
ICCTA retained the federal government’s exclusive authority
to regulate the rates of rail carriers, see 49 U.S.C. § 10501(b);
it merely shifted the ICC’s rate-setting authority to a newly
created agency, the Surface Transportation Board (STB), see
ICC Termination Act of 1995, Pub. L. No. 104-88,
 BNSF V. CDTFA 33

§§ 701–02, 109 Stat. 803, 932–34. The STB’s jurisdiction
over specified interstate rail functions, including railroad
“rates,” is “exclusive and preempt[s] the remedies provided
under Federal or State law.” 49 U.S.C. § 10501(b).

“It is difficult to imagine a broader statement of
Congress’s intent to preempt state regulatory authority over
railroad operations.” City of Auburn, 154 F.3d at 1030
(citation omitted). We have held that “ICCTA preempts all
state laws that may reasonably be said to have the effect of
managing or governing rail transportation.” Assoc. of Am.
R.R. v. S. Coast Air Quality Mgmt. Dist., 622 F.3d 1094, 1098
(9th Cir. 2010) (quoting N.Y. Susquehanna & W. Ry. Corp. v.
Jackson, 500 F.3d 238, 252 (3d Cir. 2007)). As a result, any
state regulation of railroad rates is “preempted regardless of
the context or rationale for the action” because it is “a per se
unreasonable interference with interstate commerce.” CSX
Transp., Inc.—Petition for Declaratory Order, STB Finance
Docket No. 34662, 2005 WL 1024490, at *2–*3 (S.T.B. May
3, 2005); see Assoc. of Am. R.R., 622 F.3d at 1097 (stating
that we owe Chevron deference to the STB’s interpretations
of ICCTA).

The majority has determined that under SB 84, “fees are
paid by shippers as part of the price for shipping hazardous
materials by rail” and the fees are collected by railroads; they
therefore constitute “‘rates’ within the meaning of
§ 10501(b).” Maj. Op. at 9. Because SB84 governs railroad
rates, it is per se unreasonable and preempted by ICCTA.
That’s the end of the matter.
34 BNSF V. CDTFA

II

The majority’s conclusion that the Hazardous Materials
Transportation Act, 49 U.S.C. §§ 5101–5128 (HMTA), saves
SB 84 from being preempted by ICCTA has no basis in the
language of HMTA and is contrary to Congress’s
longstanding determination that “only the Federal
Government, not the states, could regulate the interstate rates
of railroads,” United Transp. Union, 455 U.S. at 687 (citing
Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U.S. 557 (1886)).

A

HMTA does not purport to regulate railroad rates.
Rather, HMTA’s stated purpose is to “protect against the
risks to life, property, and the environment that are inherent
in the transportation of hazardous material in intrastate,
interstate, and foreign commerce.” 49 U.S.C. § 5101.
HMTA accomplishes this goal by, among other things,
authorizing the Secretary of Transportation to “prescribe
regulations for the safe transportation . . . of hazardous
material.” Id. § 5103(b)(1). HMTA thus federalizes certain
aspects of hazardous materials transportation and limits state
intrusion into those areas. See The Transportation of
Hazardous Materials: Hearing on S. 261 Before the
Subcomm. on Surface Transp. of the S. Comm. on Sci.,
Commerce, and Transp., 101st Cong. 30 (1990) (statement of
Travis P. Dungan, Administrator, Research and Special
Programs Administration, Department of Transportation)
(“[O]ur bill proposes that certain areas be carved out
exclusively for Federal regulation.”).

To accomplish this goal, HMTA identifies several
categories of requirements (such as requirements for
 BNSF V. CDTFA 35

packaging and labeling hazardous materials and reporting
releases of the same) imposed on persons transporting
hazardous materials and preempts any state law that does not
have the same substantive content as federal regulations
pertaining to the same subject. See 49 U.S.C. § 5125(b).1

1
HMTA’s preemption provision provides, in pertinent part:

Except as provided in [a subsection relating to highway
routing] and unless authorized by another law of the
United States, a law, regulation, order, or other
requirement of a State, political subdivision of a State,
or Indian tribe about any of the following subjects, that
is not substantively the same as a provision of this
chapter, a regulation prescribed under this chapter, or a
hazardous materials transportation security regulation
or directive issued by the Secretary of Homeland
Security, is preempted:

(A) the designation, description, and classification of
hazardous material.

(B) the packing, repacking, handling, labeling, marking,
and placarding of hazardous material.

(C) the preparation, execution, and use of shipping
documents related to hazardous material and
requirements related to the number, contents, and
placement of those documents.

(D) the written notification, recording, and reporting of
the unintentional release in transportation of hazardous
material and other written hazardous materials
transportation incident reporting involving State or
local emergency responders in the initial response to
the incident.

(E) the designing, manufacturing, fabricating,
inspecting, marking, maintaining, reconditioning,
36 BNSF V. CDTFA

Congress did not preempt all areas of state regulation,
however. See The Transportation of Hazardous Materials:
Hearing on S. 261 Before the Subcomm. on Surface Transp.
of the S. Comm. on Sci., Commerce, and Transp., 101st Cong.
30 (1990) (statement of Travis P. Dugan, Administrator,
Research and Special Programs Administration, Department
Of Transportation) (“Our bill also recognizes the interests of
the state and local governments in the transportation of
hazardous materials. We provide that state and local laws
and regulations may address anything that does not fall under
the areas of Federal jurisdiction.”). HMTA does not list fees
imposed on shippers to transport hazardous materials as one
of the subjects that must have the same substantive content as
federal law, see 49 U.S.C. § 5125(b), and so fee provisions
are not preempted by HMTA.

Nevertheless, Congress sought to ensure that any fee
imposed by a state was reasonable and that the revenues
derived from such fees were used for hazardous materials
transportation purposes. As such, HMTA provides that “[a]
State, political subdivision of a State, or Indian tribe may
impose a fee related to transporting hazardous material only
if the fee is fair and used for a purpose related to transporting
hazardous material, including enforcement and planning,
developing, and maintaining a capability for emergency
response.” 49 U.S.C. § 5125(f)(1). For reasons explained
below, § 5125(f)(1) is best interpreted as a congressional

repairing, or testing a package, container, or packaging
component that is represented, marked, certified, or
sold as qualified for use in transporting hazardous
material in commerce.

49 U.S.C. § 5125(b)(1).
 BNSF V. CDTFA 37

determination that state laws imposing fees relating to
transporting hazardous materials will not be preempted by
HMTA, so long as such fees are fair. The majority holds
otherwise, claiming that § 5125(f)(1) constitutes Congress’s
affirmative grant of authority to states to impose fees relating
to transporting hazardous materials. Maj. Op. at 14. But our
interpretative disagreement is not material. The only question
that matters here is whether § 5125(f)(1) allows states to
impose rates on railroads in contradiction of the STB’s
exclusive jurisdiction. Regardless whether § 5125(f)(1) is
limiting or empowering, the answer to that question is clearly
no.

B

“When confronted with two Acts of Congress allegedly
touching on the same topic, this Court is not at ‘liberty to pick
and choose among congressional enactments’ and must
instead strive ‘to give effect to both.’” Epic Sys. Corp. v.
Lewis, 138 S. Ct. 1612, 1624 (2018) (citation omitted). As
with other conflicting federal laws,“[i]f an apparent conflict
exists between ICCTA and a federal law, then the courts must
strive to harmonize the two laws, giving effect to both laws
if possible.” Assoc. of Am. R.R., 622 F.3d at 1097 (emphasis
omitted). Under the rules applicable to harmonizing federal
laws, “[w]here there is no clear intention otherwise, a specific
statute will not be controlled or nullified by a general one,
regardless of the priority of enactment.” Crawford Fitting
Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987) (quoting
Radzanower v. Touche Ross & Co., 426 U.S. 148, 153
(1976)); see Morales v. Trans World Airlines, Inc., 504 U.S.
374, 384–85 (1992). Further, a general savings clause in one
statute “cannot be allowed to supersede the specific
38 BNSF V. CDTFA

substantive pre-emption provision” of another. Morales,
504 U.S. at 385.

Applying these rules here, ICCTA necessarily supersedes
HMTA as to the authority for setting railroad rates.
According to the majority’s interpretation, HMTA gives
states the general authority to “impose a fee related to
transporting hazardous material” if fair. 49 U.S.C.
§ 5125(f)(1). ICCTA, by contrast, prohibits states from
enacting “laws that may reasonably be said to have the effect
of managing or governing rail transportation,” Assoc. of Am.
R.R., 622 F.3d at 1097 (emphasis added) (citation omitted),
and gives the STB exclusive authority to regulate railroad
rates, 49 U.S.C. § 10501(b). ICCTA’s specific provisions
prohibiting states from imposing rates on railroads are not
superseded by HMTA’s general provisions regarding state
fees relating to hazardous material transportation. In
contending that ICCTA’s preemption provision is “broad and
general,” while HMTA’s authorization is “narrow and
specific,” Maj. Op. at 19–20, the majority misses the context
in which the question arises. Because the only question here
is whether HMTA supersedes ICCTA on the issue of
regulating railroad rates, our focus must be on how the two
federal statutes address that particular issue. Here, ICCTA is
specific to railroads and directly targets railroad rates. It also
expressly preempts all state and federal laws that govern
railroad rates, and gives the STB exclusive jurisdiction over
those rates. By contrast, HMTA generally governs fees
relating to hazardous materials transportation of all sorts and
does not suggest that it supersedes any federal law. HMTA’s
vague statements regarding fair fees and hazardous materials
transportation “cannot be allowed to supersede the specific
 BNSF V. CDTFA 39

substantive pre-emption provision” of ICCTA. Morales,
504 U.S. at 385.2

Moreover, “[a] party seeking to suggest that two statutes
cannot be harmonized, and that one displaces the other, bears
the heavy burden of showing ‘a clearly expressed
congressional intention’ that such a result should follow. The
intention must be ‘clear and manifest.’” Epic Sys., 138 S. Ct.
at 1624 (citations omitted). ICCTA is clear that it preempts
all “rates” governing railroad transportation, including any
federal laws governing such rates. 49 U.S.C. § 10501(b) (the
STB’s jurisdiction over railroad rates is “exclusive” and
preempts “Federal or State law” that conflicts with this
exclusive jurisdiction). By contrast, HMTA’s “authorization”
is at best a permission, and more likely a limit on state power.
Either way, there is no evidence that Congress intended
HMTA to supersede conflicting federal law applying to
railroad rates or to intrude on the STB’s exclusive
jurisdiction. The majority fails to explain how HMTA
manifests Congress’s clear intent that a provision regarding
fair fees should supersede ICCTA’s exclusive regulation of
railroad rates.

Finally, at the time HMTA was enacted in 1975, the
federal regulation of railroad rates had been established for
almost 100 years (since 1887) and regulation of railroad rates
had been the exclusive province of federal agencies for over

2
The majority argues that because ICCTA broadly regulates railroad
operations, it is more general than § 5125(f)(1), which references fees for
the transportation of hazardous materials. Maj. Op. at 27. This is mere
word play. While ICCTA may be a more general statute compared to a
federal statute governing a specific aspect of railroad operations, it is not
a more general statute compared to a federal statute governing
transportation of hazardous materials by any means.
40 BNSF V. CDTFA

50 years (since 1920). See Ariz. Grocery Co., 284 U.S. at
383–86. And yet, HMTA does not mention railroad rates at
all. There is a “‘stron[g] presum[ption]’ that repeals by
implication are ‘disfavored’ and that ‘Congress will
specifically address’ preexisting law when it wishes to
suspend its normal operations in a later statute.” Epic Sys.,
138 S. Ct. at 1624 (alterations in original) (quoting United
States v. Fausto, 484 U.S. 439, 452, 453 (1988)). The
majority provides no evidence to overcome this presumption
here.

The majority’s contrary arguments are without support.
For example, the majority claims that federalism requires a
presumption against preemption here, but this is plainly
incorrect. The presumption applies when federal law governs
“state rules in areas of traditional state regulation.” Maj. Op.
at 19 (quoting Massachusetts v. U.S. Dep’t of Transp.,
93 F.3d 890, 894 (D.C. Cir. 1996)). As is evident from
above, states have not traditionally regulated railroad rates.
“Just as the Federal Government cannot usurp traditional state
functions, there is no justification for a rule which would
allow the states . . . to erode federal authority in areas
traditionally subject to federal statutory regulation.” United
Transp. Union, 455 U.S. at 687. Railroad rates fall squarely
into the latter category. Id. Even before the Interstate
Commerce Act, the Court “held that only the Federal
Government, not the states, could regulate the interstate rates
of railroads.” Id. (citing Wabash, St. L. & P. R. Co. v.
Illinois, 118 U.S. 557 (1886)). Therefore, the presumption is
inapplicable here.

The majority also argues that Congress did not intend
ICCTA to supersede HMTA with respect to railroad rates
because that “would read § 5125(f)(1) into oblivion.” Maj.
 BNSF V. CDTFA 41

Op. at 27. This argument is simply false. The STB’s
exclusive jurisdiction over rates applies only to railroads, not
to other means of transporting hazardous materials. See
49 U.S.C. § 10501(a)(1) (“[T]he Board has jurisdiction over
transportation by rail carrier . . . .”). The majority’s claim
that “if it is unfair to charge fees only for shipment by rail, it
is equally unfair to charge fees only for shipment by truck,”
Maj. Op. at 27, is baseless. Trucks have historically been a
significant source of hazardous waste spills in California; as
the majority acknowledges, “during the period between 2005
and 2015 in California 92% of the costs associated with
hazardous materials spills arose out of trucking accidents.”3
Maj. Op. at 22. So long as California imposes a fee on truck
shipments of hazardous waste that is commensurate with the
danger posed by such shipments (rather than including any
extra amounts needed to address potential future occurrences
of railroad spills), such a fee would not be unfair to truckers.4
California can recover the costs of addressing the rare
railroad spill through litigation and settlement, as it did in the
1991 Dunsmuir derailment identified by the majority.5

3
By contrast, the majority identifies a single major railroad spill that
took place in California 27 years ago. Maj. Op. at 21.
4
In other words, California could impose a fee on truckers that is
calculated to collect the costs of responding to spills caused by truck
shipments of hazardous materials. Such a fee would be commensurate
with the danger posed by truck shipments of hazardous materials.
5
See Memorandum of Agreement settling California ex rel. Wheeler
v. Southern Pacific Transportation Company, Inc., No. S-92-1117-LKK-
GGH, and United States v. Southern Pacific Transportation Company,
Inc., No. S-92-2090-WBS-GGH, 1994 (settling damages caused by
the Dunsmuir derailment for $38 million), available at
https://www.cerc.usgs.gov/orda_docs/CaseDetails?ID=946.
42 BNSF V. CDTFA

Moreover, the STB’s jurisdiction applies only to “rates,”
not to fees that are not rates. If, for instance, a state followed
the lead of the federal government and required shippers
transporting hazardous materials to file a registration
statement and pay “a fee necessary to pay for the costs” of
processing that statement, 49 U.S.C. § 5108(g), a court could
reasonably conclude that such a charge was not part of the
price for shipping hazardous materials by rail and therefore
was not a rate. Maj. Op. at 9.

Similarly, the STB’s jurisdiction applies to rail carriers,
or entities “acting under the auspices of a rail carrier,” not to
noncarriers. See., e.g., Valero Ref. Co.—Petition for
Declaratory Order, STB Finance Docket No. 36036, 2016
WL 5904757, at *3 (Sept. 20, 2016). Accordingly, the
railroads have suggested that if the state collected a charge
from the shippers directly (instead of requiring the railroads
to do so, as in this case) the charge would not be subject to
STB jurisdiction and would not qualify as a rate.6 If a charge

6
Although the majority states it is “skeptical that the ICCTA would
allow the State . . . to charge a shipper a fee directly but to forbid it to
charge the same fee indirectly,” Maj. Op. at 28, the STB has indicated
“there is no preemption” under ICCTA when a state or local government
entity regulates a third party that is neither a rail carrier nor acting under
the auspices of a rail carrier. See Valero Ref. Co., 2016 WL 5904757, at
*3. Further, in Sanchez v. Aerovias De Mexico, S.A. De C.V., we placed
great weight on the fact that a Mexican tourism tax was collected by an
airline, rather than directly by the Mexican government. 590 F.3d 1027,
1030 (9th Cir. 2010). Sanchez concluded the tax was part of the airline’s
“ticketed price,” and therefore the suit against the airline for wrongful
collection of the tax was preempted by the Airline Deregulation Act, id.,
which preempts suits against airlines “related to a price, route, or service
of an air carrier,” 49 U.S.C. § 41713(b)(1). As these examples indicate,
a federal law’s preemption of state regulation of common carriers
generally does not extend to state regulation of noncarriers. Accordingly,
 BNSF V. CDTFA 43

is not a rate, the state may impose it under HMTA so long as
it is fair, and ICCTA would have no bearing on these fees.
But once a state tries to impose a fee that is actually a railroad
rate, it is categorically preempted by ICCTA and falls within
the STB’s exclusive jurisdiction.

Stated succinctly, the majority offers no plausible basis
for its conclusion that some railroad rates are not subject to
the STB’s exclusive jurisdiction, when federal law dictates
that all state and federal regulation of railroad rates is
preempted by ICCTA.

C

The majority’s conclusion that HMTA’s fee provision
supersedes the STB’s exclusive jurisdiction is wrong for
another reason: HMTA can be read so that it does not conflict
with ICCTA at all. Instead of applying the rules for
harmonizing apparently conflicting federal statutes, the
majority makes the bare assertion that “the ICCTA and the
HMTA are easily harmonized by reading § 5125(f)(1) of the
HMTA to protect from preemption the fees specifically
authorized in that section.” Maj. Op. at 11. Obviously, this
does not harmonize the statutes, it merely chooses HMTA
over ICCTA. In other words, the majority purports to
harmonize the two federal statutes by ruling that HMTA’s fee
provision supersedes ICCTA’s exclusive regulation of
railroad rates, and therefore that states can impose fair fees,
even when they conflict with the STB’s exclusive
jurisdiction. This would require altering ICCTA’s language

§ 5125(f)(1) maintains effect even if it is superseded by ICCTA’s
preemption provision when a fee crosses the line into a rate collected by
a railroad.
44 BNSF V. CDTFA

to read that the STB’s exclusive jurisdiction over railroad
“rates” does not cover fair fees imposed on the transportation
of hazardous materials.

HMTA’s fee provision can be given effect without
reading it as an authorization or altering its language. When
the fee provision was first enacted in 1990, it read:

A State or political subdivision thereof or
Indian tribe may not levy any fee in
connection with the transportation of
hazardous materials that is not equitable and
not used for purposes related to the
transportation of hazardous materials,
including enforcement and the planning,
development, and maintenance of a capability
for emergency response.

Hazardous Materials Transportation Uniform Safety Act of
1990, Pub. L. 101-615, § 112, 104 Stat. 3244, 3260 (emphasis
added). In other words, HMTA precluded states from
exercising their legislative authority to impose inequitable
fees in connection with hazardous materials transportation.7

In making wholesale amendments to Title 49 (including
HMTA) four years later, Congress clarified that these
revisions were designed to revise and codify “general and

7
The majority claims that the text of the fee provision as first enacted
in 1990 is “ambiguous at best.” Maj. Op. at 26. But because it provides
that a state “may not levy any fee in connection with the transportation of
hazardous materials that is not equitable,” Hazardous Materials
Transportation Uniform Safety Act of 1990, Pub. L. 101-615, § 112, 104
Stat. 3244, 3260, there is no plausible way to read it as granting states
authority to impose fees, and the majority does not try to do so.
 BNSF V. CDTFA 45

permanent laws of the United States, related to transportation
. . . without substantive change.” Revision of Title 49, United
States Code Annotated, “Transportation,” Pub L. 103-272,
108 Stat. 745 (1994) (emphasis added). As part of this
general revision, the statutory language in HMTA preventing
the imposition of unfair fees was revised to its current state,
and provides that “[a] State, political subdivision of a State,
or Indian tribe may impose a fee related to transporting
hazardous material only if the fee is fair . . . .” 49 U.S.C.
§ 5125(f)(1).

Read in isolation, the current version of § 5125(f)(1) is
ambiguous. Given that “state governments do not need
[federal] authorization to act,” Nat’l Fed’n of Indep. Bus. v.
Sebelius, 567 U.S. 519, 535 (2012), this language most likely
means that a state may enact a law imposing a fee only if the
fee is fair. As the majority argues, however, it could be read
as affirmatively authorizing states to enact laws imposing
fees so long as they are fair. In support of this latter
interpretation, the majority notes that “[t]he syntactical
structure of § 5125(f)(1)—a person or entity ‘may’ perform
some act ‘only if’ some criterion is satisfied—is used
repeatedly and consistently in the HMTA” as an
authorization. Maj. Op. at 14. But we are not reading this
statutory language in isolation; rather, we must read it in light
of Congress’s statement that the 1994 revisions were not
intended to make a substantive change from the original
wording—that a state “may not levy any fee . . . that is not
equitable.” Hazardous Materials Transportation Uniform
Safety Act of 1990, Pub. L. 101-615, § 112, 104 Stat. 3244,
46 BNSF V. CDTFA

3260.8 This language can only be interpreted as a limitation
on state power.

Moreover, our “[r]espect for Congress as drafter counsels
against too easily finding irreconcilable conflicts in its work”
because “[a]llowing judges to pick and choose between
statutes risks transforming them from expounders of what the
law is into policymakers choosing what the law should be.”
Epic Sys., 138 S. Ct. at 1624. With the goal of harmonization
in mind, and armed with the original statutory language as a
limitation on state power, we should read § 5125(f)(1) as a
limitation, rather than an authorization to impose fair fees. In
fact, we are bound to do so. See id. As a limitation on state
power, § 5125(f)(1) does not conflict with the STB’s
exclusive jurisdiction, and we are not tasked with choosing
between two laws posing an irreconcilable conflict.

8
For similar reasons, the majority’s attempt to distinguish Township
of Tinicum v. U.S. Department of Transportation, 582 F.3d 482 (3d Cir.
2009), is unconvincing. In Tinicum, the Third Circuit reasoned that
similar text in the Anti-Head Tax Act (AHTA) was not an authorization,
but a limitation. Id. at 488–89. The AHTA provides that states “may levy
or collect a tax on or related to a flight of a commercial aircraft or an
activity or service on the aircraft only if the aircraft takes off or lands in
the State or political subdivision as part of the flight.” 49 U.S.C.
§ 40116(c) (emphasis added). Tinicum reasoned, in part, that the language
should be interpreted as a limitation on state power because a predecessor
statute could be read only as a limitation, and no substantive change was
intended when the language changed. 582 F.3d at 487. To the extent
Tinicum bears on the interpretative question presented here, it supports
reading HMTA as a limitation rather than an authorization. Like in
Tinicum, there is an undisputed meaning of an earlier verison of the statute
upon which “we must ‘primarily’ rely in interpreting the language.” Maj.
Op. at 14.
 BNSF V. CDTFA 47

To counter this straightforward approach to harmonizing
ICCTA and HMTA, the majority relies heavily on a 1990
report from the Committee on Energy and Commerce on H.R.
3520, which discusses a version of the revisions to HMTA
that was not enacted by Congress. See Maj. Op. at 16–18, 26.
The majority excerpts language stating that the fee provision
of a predecessor bill to HMTA “would provide that a non-
Federal governmental entity may levy . . . fees, but would
require that . . . such . . . fees be reasonable[.]” H.R. Rep. No.
101-444, pt. 1, at 49 (1990) (emphasis added).9 But this
language is likewise ambiguous; it does not expressly indicate
whether the bill authorizes state regulation or merely permits
the state to exercise its inherent police powers. The context
of the report, however, indicates that the legislators
understood the proposed bill to be permissive.

Nothing in this section of the report suggests that H.R.
3520 granted states authority to impose fees that it did not
already have. As noted above, “state governments do not
need [federal] authorization to act,” Nat’l Fed’n of Indep.

9
The full language from the report provides that states may exercise
the full range of enforcement authority typically exercised by states; it
does not give states any special authorization as the majority suggests:

Section 112(b) of the HMTA, as amended by the bill,
would provide that a non-Federal governmental entity
may levy fines, penalties, and fees, but would require
that (1) such fines, penalties, or fees be reasonable; and
(2) the revenues derived therefrom must be used
exclusively for hazardous materials transportation
purposes (including enforcement and the planning,
development, and maintenance of a capability for
emergency response).

H.R. Rep. No. 101-444, pt 1 at 49 (emphasis added).
48 BNSF V. CDTFA

Bus., 567 U.S. at 535, and this section of the report focuses
on states’ lawmaking power, notwithstanding the HMTA. It
discusses, for instance, the procedure whereby a state could
apply to the federal government for a determination of
whether its law was preempted, and disclaims any intent to
“pre-approve State and local requirements before such
requirements obtain the force of law.” H.R. Rep. No. 101-
444, pt. 1, at 49. In other words, the report supports the
reading that legislators recognized that states retained the
power to impose fees, but limited that authority by ensuring
any fee is fair.10

In short, HMTA does not evince a clear intent to
supersede ICCTA. Because we must give effect to both
ICCTA and HMTA if possible, and because there is a reading
of HMTA that retains its effect of allowing state fees only
when fair, we are bound to interpret the provision that way.
The majority errs in holding otherwise and creating an
unnecessary conflict.

10
The majority relies on a statement in the report on H.R. 3520
(Section 18, State Participation) discussing a section in the proposed bill
that would allow states to participate in carrying out investigative and
surveillance activities in connection with federal regulations pertaining to
rail safety. Maj. Op. at 18 (discussing H.R. Rep. No. 101-444, pt. 1, at
53–54). This section of the bill was intended to overturn judicial rulings
interpreting provisions of the Federal Railroad Safety Act (FRSA) to
preclude states from adopting any laws relating to the transportation of
hazardous materials based on FRSA’s preemption provision. H.R. Rep.
No. 101-444, pt. 1, at 53–54 (citing CSX Transp., Inc. v. Pub. Utils.
Comm’n of Ohio, 701 F. Supp. 608, 612 (S.D. Ohio 1988), aff’d, 901 F.2d
497 (6th Cir. 1990)). This issue has no bearing on the question whether
HMTA was intended to override the STB’s exclusive jurisdiction over
railroad rates.
 BNSF V. CDTFA 49

The majority does not provide a single plausible basis for
its claim that § 5125(f) supercedes ICCTA and could save a
state law regulating railroad rates from preemption. The
STB’s broad, exclusive jurisdiction over railroad rates, and
ICCTA’s express preemption of state and federal law,
contradicts such a claim. I therefore dissent.