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Judge demands to view D.C. rail plan

(The following article by Carol D. Leonnig was posted on the Washington Post website on September 22.)

WASHINGTON -- A federal judge yesterday demanded to see a highly secret plan for protecting the Washington area's rails from a chemical attack and erupted after a Justice Department attorney said he doubted the government would comply.

U.S. District Judge Emmet G. Sullivan said he was stunned and offended by the government's hesitation and ordered that a copy of the document be delivered to his chambers by 10 a.m. today.

"The government doesn't want me to see the plan, says they don't have to give it to me, which I quite frankly find offensive," Sullivan declared, glaring at the Justice Department attorneys. "I want to see the plan with my own eyes, and I'm not going to rely upon the assertions of government lawyers."

The judge's demand came at a hearing in a lawsuit over a D.C. law that prohibits the rail shipment of hazardous materials through the city. CSX Transportation Inc. filed suit to overturn the ban, and the federal government joined on the railroad's behalf. The law, which was to have taken effect in April, has been on hold pending a decision in the court case.

In court yesterday, Sullivan said he needed to see the rail security plan, which was developed by CSX, to verify for himself that it even exists. CSX submitted the plan to the federal government, which has been reviewing it to determine how much of it can be released.

Government attorneys declined to comment after the hearing.

The harsh words capped off a hearing that featured several testy exchanges between the judge and Justice Department attorney Arthur Goldberg. For Sullivan, a central issue in the case involves what steps the federal government and CSX have taken to make the nation's capital safe from a terrorist attack on the rail lines.

"Who's scrutinizing these plans to determine if they are plans or illusions?" the judge asked. "It seems bizarre."

During hearings in the spring, Sullivan echoed many of the concerns cited by Mayor Anthony A. Williams (D) and D.C. Council members, who had argued that the ban is necessary because Washington is a top terrorist target. The city noted that an estimated 100,000 people could die from the resulting cloud of poisonous gas if one rail car of chlorine was ruptured.

Sullivan refused in April to issue an emergency order that would have stopped the ban from taking effect, saying that the city's duty to protect its residents from a rail line catastrophe outweighed any added costs to CSX from rerouting trains while the lawsuit was pending. But the ban never was imposed because Sullivan was overruled by a panel from the U.S. Court of Appeals for the D.C. Circuit.

The appellate judges ruled there was a high likelihood that CSX and the federal government would win their argument that the city had overstepped its authority. The appellate panel said the federal government has the lead role in overseeing rail security, and it blocked the ban from taking effect until the lawsuit was decided.

Now the case is back before Sullivan, with CSX asking for a final ruling in its favor and the District and the Sierra Club pushing to obtain documents about federal efforts to secure the rails.

During yesterday's hearing, Sullivan raised doubts about the thoroughness of federal oversight of rail shipping companies and questioned government lawyers' assertions that all documents related to federal rail security are too sensitive to share in the suit.
D.C. activists and politicians later applauded the judge's move to sort out facts from allegations.

"I'm glad somebody's standing up for public safety," said D.C. Council member Kathy Patterson (D-Ward 3), who proposed the ban. "It doesn't make any sense to me. These are people who don't have very much respect for local law, but still, their lack of respect for a federal court is stunning."

A spokesman for the mayor, Vincent Morris, said he hoped the federal government would reconsider and provide the plan to the judge. "It's disappointing that CSX and the feds are still playing hide-and-seek with a safety plan that affects the lives of more than a million men, women and children," Morris said.

Thursday, September 22, 2005

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