In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1116

NORFOLK SOUTHERN RAILWAY COMPANY,

Plaintiff-Appellant,

v.

CHARLES E. BOX and the other Commissioners

of the Illinois Commerce Commission,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 06 C 641—Virginia M. Kendall, Judge.

ARGUED DECEMBER 8, 2008—DECIDED FEBRUARY 11, 2009

Before EASTERBROOK, Chief Judge, and BAUER and

SYKES, Circuit Judges.

EASTERBROOK, Chief Judge. Illinois requires rail switching

yards built or substantially renovated after February 2005

to include walkways, parallel to each track, for persons

who work there. 625 ILCS 5/18c–7401.1; 92 Ill. Admin.
2 No. 08-1116

Code §1546.10 et seq. Norfolk Southern Railway contends that federal law supersedes this requirement. A

federal regulation “covering the subject matter of the

State requirement” preempts it. 49 U.S.C. §20106. And

even if no federal regulation covers the subject, states

are forbidden to adopt laws or regulations that conflict

with or prevent achievement of federal objectives. See

CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993).

The district court determined that the national government has not adopted any regulation “covering the

subject matter” of paths adjoining railroad tracks. 2007

U.S. Dist. LEXIS 23879 (N.D. Ill. Mar. 30, 2007). Then, after

a bench trial, the court found that Illinois’s requirements

do not conflict with any federal objective. 2007 U.S. Dist.

LEXIS 92367 (N.D. Ill. Dec. 17, 2007). The court entered

judgment for the state, and the railroad has appealed.

Several states have laws or regulations requiring walkways in rail switching yards. Both state and federal courts

are divided on the question whether these rules are

compatible with federal law. Compare Southern Pacific

Transportation Co. v. California Public Utilities Commission,

820 F.2d 1111 (9th Cir. 1987) (California rules valid),

Elston v. Union Pacific R.R., 74 P.3d 478 (Colo. App. 2003)

(Colorado rules valid), and CSX Transportation, Inc. v.

Miller, 159 Md. App. 123, 858 A.2d 1025 (2004) (Maryland

rules valid), with Missouri Pacific R.R. v. Texas Railroad

Commission, 948 F.2d 179 (5th Cir. 1991) (Texas rules

preempted), and Black v. Seaboard System R.R., 487 N.E.2d

468 (Ind. App. 1986) (Indiana rules preempted). These

decisions start, as do we, with this federal law:
No. 08-1116 3

Laws, regulations, and orders related to railroad

safety and laws, regulations, and orders related

to railroad security shall be nationally uniform to

the extent practicable. A State may adopt or continue in force a law, regulation, or order related to

railroad safety or security until the Secretary of

Transportation (with respect to railroad safety

matters), or the Secretary of Homeland Security

(with respect to railroad security matters), prescribes a regulation or issues an order covering

the subject matter of the State requirement. A State

may adopt or continue in force an additional or

more stringent law, regulation, or order related to

railroad safety or security when the law, regulation, or order—

(1) is necessary to eliminate or reduce an essentially local safety or security hazard;

(2) is not incompatible with a law, regulation,

or order of the United States Government; and

(3) does not unreasonably burden interstate

commerce.

49 U.S.C. §20106 (recodified from 45 U.S.C. §434 in 1994

and amended in 2002). Norfolk Southern contends that

federal regulations already cover the subject of walkways,

thus preempting the state rules (for Illinois does not

contend that they may be sustained under the “essentially

local . . . hazard” proviso).

The major problem with the railroad’s position is that

no federal regulation deals with walkways. Railroads are
4 No. 08-1116

free to install them, or not, as they see fit. And if railroads may choose whether to have walkways, how then

could it be said that there is a federal regulation that

forbids states from acting? Norfolk Southern’s answer

is that federal regulations do specify how rail lines must

be built. See 49 C.F.R. §213.103. The railroad must

prepare a roadbed (or subgrade) of compacted earth. A

layer of sub-ballast, made of crushed stone, goes on top

of the roadbed. Then a section of sloped ballast,

made from slightly smaller crushed stone, goes on top of

the sub-ballast. The crossties and rails are laid on the

ballast, which transmits the load to the roadbed while

allowing water to drain through without turning the

roadbed to mud. Federal rules set a maximum slope

and minimum size of the ballast. See 49 C.F.R. §§ 213.1

to 213.241 (four parts covering track safety standards).

None of these rules deals with walkways, but Norfolk

Southern maintains that they “cover” the subject because

any walkway is bound to affect the slope of the ballast,

its drainage properties, or both.

This understanding of what it means for a federal

regulation to “cover” a subject would make §20106’s

second sentence internally contradictory. Here is that

sentence again: “A State may adopt or continue in force

a law, regulation, or order related to railroad safety or

security until the Secretary of Transportation (with

respect to railroad safety matters), or the Secretary of

Homeland Security (with respect to railroad security

matters), prescribes a regulation or issues an order covering the subject matter of the State requirement.” The

sentence deals with state laws and regulations that are
No. 08-1116 5

“related to railroad safety and security” and provides

that they are preempted if there is a federal regulation

“covering the subject matter of the State requirement.”

Norfolk Southern observes that many federal regulations

deal with railroad safety. It necessarily follows, from

the Railway’s perspective, that any state regulation

“related to railroad safety” must be “covered” by a

federal regulation. But then the sentence we have

quoted is self-defeating: Instead of providing a division

between state and federal spheres (in which the state

rule prevails unless a federal rule covers the topic), the

sentence would effectively read: “All state laws and

regulations related to railroad safety and security are

preempted.” That is not, however, what the actual sentence says. The structure of the statute’s second sentence makes sense only if the category of “covering”

federal regulations is a subset of all topics related to

railroad safety and security. And that is how the

Supreme Court has understood the word “cover”, giving

it a relatively narrow scope compared with all safetyrelated issues. Easterwood, 507 U.S. at 664–65. The rules

for roadbed construction and maintenance do not

“cover” the subject of adjacent walkways.

Norfolk Southern relies on a policy statement as well

as the roadbed regulations. In 1978 the Federal Railroad

Administration told railroads to ignore any regulations

that the Occupational Safety and Health Administration

had prescribed for walkways, because walkways in

railroad yards “are so much a part of the operating environment that they must be regulated by the agency with

the primary responsibility for railroad safety.” 43 Fed. Reg.
6 No. 08-1116

10,587 (1978). This does not sound like a statement that

the regulations for roadbeds, ballast, and drainage

already deal with the topic; the safety of workers on

walkways—whether they are too steep or slippery,

whether the walkways are too close to the rails and

create a risk of workers being struck by moving trains,

and so on—is distinct from questions about stability and

drainage of tracks. The 1978 declaration suggests that

the FRA contemplated issuing rules about walkways, but

in the ensuing 30 years it has not done so. To the

contrary, it has left in place a decision taken in 1977

that federal walkway rules should not be adopted. In 1976

the FRA had asked for comments on the question

whether it should require walkways adjacent to the tracks

on trestles and bridges. 41 Fed. Reg. 50,302 (1976). After

receiving comments the FRA decided not to act, explaining that, “if an employee safety problem does exist

because of the lack of walkways in a particular area or

on a particular structure, regulation by a State agency

that is in a better position to assess the local need is

the more appropriate response.” 42 Fed. Reg. 22,184–85

(1977). Illinois took the FRA at its word.

On to the question whether Illinois’s system conflicts

with federal rules or objectives. Illinois allows the railroads considerable discretion over the size, placement,

and materials of the walkways. They may be made

from concrete, asphalt, wood, or gravel. All that the

state requires is that they be non-slippery, at least two

feet wide, and slope no more than 1 inch of elevation

change for 8 inches of width or length. Norfolk Southern

says that wooden walkways are impractical and that
No. 08-1116 7

impervious materials (concrete or asphalt) would direct

rainwater and snowmelt toward the tracks and overwhelm their drainage-control systems, so gravel is the

only feasible material. At the bench trial, two experts

testified for Norfolk Southern that even gravel walkways

would cause drainage problems. The district judge found

otherwise; unless that finding is clearly erroneous, the

Railway must lose.

Jeffrey McCracken, Norfolk Southern’s Assistant Vice

President of Maintenance, was its principal expert.

McCracken testified that the tracks in switching yards are

located so that their centerlines are 14 feet apart. Ballast

is flat at the top (supporting the crossties and rails) and

slopes of 1:2 rise over run at the side, down to the subballast. Only 41⁄2 feet separate the flat areas at the top of the

ballast, so the 1:2 side slope means that there is a V-shaped

area between each track. Flattening that area by adding

gravel to form a walkway there would interfere with

drainage, McCracken testified, and thus imperil the tracks’

stability by increasing the risk that mud would form—for

even though Norfolk Southern constructs a drainage

system of pipes and culverts under each rail yard, to

improve on natural drainage, more gravel between the

tracks would cover the inlets of this drainage system

and hamper its effectiveness.

McCracken’s testimony may well be sound, but the

district judge did not believe it. She gave two reasons.

First, the record contains photographs of three of

Norfolk Southern’s switching yards. None of the photos

shows a V-shaped depression between adjacent tracks.
8 No. 08-1116

They show, instead, a shallow slope—less than the 1:8

required by Illinois law, so the Railway may already be

in compliance. If the Railway operates its yards with

shallow slopes, the judge observed, then it is hard to

see how the state’s requirements will cause safety problems. McCracken responded that the yards depicted in

the photos are abnormal and experience drainage problems, but neither he nor the Railway produced photographs of yards with the V-shaped depression that he

described, and neither McCracken nor any other witness

produced details about the supposed drainage problems

at the three depicted yards. The judge concluded that,

whatever McCracken’s design preferences may be, a

shallow topography satisfying the Illinois rules has not

caused demonstrable drainage or safety problems.

The judge’s second reason was an inference from

silence. Some railroads have built walkways voluntarily

and others have built them under the compulsion of

state regulation. California’s rules have been in force for

more than 20 years. What has happened in the places

where walkways adjoin the tracks? Have these tracks

required extra maintenance because of drainage problems? Have trains derailed, or been subject to speed

limitations, because of stability problems traceable to

walkways? Many thousands of miles of track must have

been affected. (Norfolk Southern alone has more than

300 miles of track in its Illinois switchyards.) This facilitates statistical analysis that could identify even a small

effect per mile. The judge asked McCracken and the

other expert whether they had analyzed the experience of

railroads that have walkways adjacent to their track. They
No. 08-1116 9

replied that they had not. The judge asked whether

they knew about any published literature on the question; they replied that they did not. We asked the same

question of the Railway’s appellate counsel, who likewise

responded that he did not know of any analysis of the

effects of California’s law, of the laws in Colorado and

other states, or of walkways voluntarily constructed

elsewhere. (Nor did counsel contend that other states’

regulations differ in any material way from Illinois’s,

preventing a useful comparison.)

That’s a telling omission. In Missouri Pacific the district

judge predicted that enforcement of Texas’s rules

would adversely affect drainage and thus jeopardize

railroad safety; the fifth circuit held that the finding was

not clearly erroneous, and the upshot was a declaration

that the Texas requirement was preempted. One can do

only so much with projections. Talk is cheap; when it

is possible to test whether a prediction has come true,

then a test is essential. See Bechtel v. FCC, 10 F.3d 875

(D.C. Cir. 1993). Norfolk Southern did not use the opportunity to put its assessment to a test. Because nothing in

this record (or any published literature we could find)

suggests that the walkway regulations of other states

have imperiled rail safety, or even affected railroads’ costs

of maintaining a constant level of safety, the district court’s

findings of fact are not clearly erroneous. And, given

those findings, the state is entitled to enforce its walkway requirement.

According to Norfolk Southern, it is physically impossible to comply with the state’s rules for some tracks in
10 No. 08-1116

some yards. It gives as an example tracks constructed at

different heights (tracks for through trains may be two

or three feet higher in elevation than adjacent switching

tracks), which make it impossible to satisfy the state’s

1:8 limit on walkway slope. How this presents a question

of federal law is unclear. For its part Illinois insists that

the Railway is overstating the problem and that the

impossible is never required. For adjacent tracks at different elevations, the state says, it will be satisfied with a

walkway on one side of each track, something that can

be done even though there isn’t room to build between

the tracks a high walkway for the higher track and a

low walkway for the lower track. The Railway suspects

that its definition of “impossibility” will turn out to be

different from the state’s. But federal courts do not issue

advisory opinions. Norfolk Southern must try to work

these details out with the state commission. Any order

that presents a question of federal law can be reviewed

once a concrete dispute has ripened.

AFFIRMED

2-11-09