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July 17, 2019

Media contact: Liz Brocker (701) 328-2213

BISMARCK, ND - Attorney General Wayne Stenehjem announced today that North Dakota has filed a petition with the US Department of Transportation seeking to overturn a recently passed Washington State law.

The Hazardous Materials Transportation Act (“HMTA”) is a federal law authorizing the US DOT to protect the nation against the risks inherent in the transportation of hazardous materials and to establish a uniform set of national regulations. DOT has delegated this authority to the Pipeline and Hazardous Materials Safety Administration (PHMSA), which is tasked with ensuring the safe transportation of hazardous materials, including those transported by rail. Congress included express preemption language in the HMTA, specifically to preclude a multiplicity of state and local regulations. By law, PHMSA has the authority to declare a state law is in conflict with federal standards.

North Dakota ships about 10% of its oil by rail to refineries in the state of Washington.  The new law, which goes into effect on July 28, 2019, prohibits oil from being unloaded at refineries within the state from rail cars that have a vapor pressure greater than 9 psi, which is significantly lower than accepted national standards. This new standard would make it uneconomical for oil from the Bakken region in North Dakota and Montana to be unloaded at Washington state refineries. North Dakota is the second largest producer of oil in the United States, at 1.4 million barrels per day, second only to Texas.

“I understand that Washington wishes to protect its citizens and communities from the risk of derailments, particularly those involving hazardous materials. So does North Dakota, and so does the federal government. That is why the federal government has a detailed, rigorous, and comprehensive regulatory scheme governing precisely this concern,” commented Stenehjem. 

North Dakota maintains that Washington’s attempt to re-classify crude oil based on its vapor pressure is inconsistent with federal standards. Moreover, it sets the precedent that one state with access to particular transportation routes, namely rail-to-port, can restrict another state’s ability to move its own natural resources across state borders.

“This is not an issue only about oil. Coastal states should not be able to dictate what goods can move from one state to the next or be exported. This is especially significant for states like North Dakota that do not have direct access to the coasts. While oil is the issue in this case, it is reasonable to expect that other commodities could be next – like soybeans, GMO crops, meat from animals that are not free range – you name it,” Stenehjem said.

The state of Montana has joined North Dakota’s petition.

Update: October 23, 2019 - ND & MT Rebuttal

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