Courting Disaster: Systemic Failures and Reactive Responses in Railway Safety Regulation

38 Pages Posted: 22 Sep 2010 Last revised: 28 Apr 2013

See all articles by Lloyd Burton

Lloyd Burton

University of Colorado at Denver - Graduate School of Public Affairs

Matthew Jude Egan

Louisiana State University, Baton Rouge - Stephenson Disaster Management Institute

Date Written: October 21, 2010

Abstract

The routine reaction of both industry trade groups and government regulators to deadly infrastructure failures such as railway disasters is to characterize them as anomalous, freak events occasioned either by human error or idiosyncratic equipment failure. Conversely, this Article uses the Institutional Analysis and Development (IAD) framework to show how the systematic federal deregulation of the rail industry, combined with federal court decisions holding that federal deregulation preempts both state government regulation and tort actions to remedy these harms, have almost invited such disasters to occur. Piecemeal, partial, patchwork re-regulation occurs only in response to especially egregious, high-profile tragedies. Such reactive regulation ill-serves the safety needs of a public reliant on increasingly complex and intensively used infrastructure. What is needed instead is preventive regulation, based on the application of an Interdependent Systems Analysis (ISA) approach that integrates the findings of individual accident investigations with aspects of the contextual regulatory and statutory framework within which whole categories of similar accidents occur. Empowering both the National Transportation Safety Board and the Government Accountability Office to use such a whole systems approach, as well as compelling regulatory agencies to explain in greater detail why they either are or are not adopting NTSB and GAO findings and recommendations based on such a whole systems analysis, can measurably improve the safety of both rail passengers and those residing near freight rail lines.

Keywords: Disaster Law, Regulation, Administrative Law, Institutional Analysis and Development

Suggested Citation

Burton, Lloyd and Egan, Matthew Jude, Courting Disaster: Systemic Failures and Reactive Responses in Railway Safety Regulation (October 21, 2010). Cornell Journal of Law and Public Policy, Vol. 20, p. 3, 2011, Available at SSRN: https://ssrn.com/abstract=1680539

Lloyd Burton

University of Colorado at Denver - Graduate School of Public Affairs ( email )

Denver, CO 80217-3364
United States
303-556-5980 (Phone)
303-556-5971 (Fax)

Matthew Jude Egan (Contact Author)

Louisiana State University, Baton Rouge - Stephenson Disaster Management Institute ( email )

Baton Rouge, LA 70803-6308
United States

HOME PAGE: http://sdmi.lsu.edu/faculty.html

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