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Baltimore & Ohio R.R. v. Oberly

ELR Citation: 15 ELR 20584
Nos. No. 84-452 WKS, 606 F. Supp. 1340/22 ERC 1700/(D. Del., 04/09/1985)

In a suit brought by owners of an interstate railroad facility seeking a preliminary injunction to prevent Delaware from enforcing its state Noise Control Act, the court holds that plaintiffs have demonstrated a reasonable probability of success on the merits for their argument that the federal Noise Control Act (NCA) preempts the stricter Delaware law, which therefore cannot be applied to noise emitted from plaintiffs' facility. While conceding that the NCA was generally intended to preempt the regulation of interstate railroad noise and its stated applicability to refrigerator units on rail cars, defendants nevertheless argue that the Environmental Protection Agency's (EPA's) failure to issue standards for these units leaves the noise emissions from refrigerator units at their facility free of federal control and subject to state regulation. The court rejects this "regulatory gap" argument because EPA has expressly considered and rejected as unnecessary regulation of these units. NCA's preemption clause, §17(c), cannot be read as preempting state regulation only when the noise is covered by federal regulation. A federal decision not to regulate can have the same preemptive effect as affirmative regulation if based on a determination that the area is best left unregulated.

The court next holds that plaintiffs have demonstrated an imminent threat of irreparable harm if the injunction does not issue. If forced to comply with the Delaware standards, plaintiffs' facility will not only lose profits, but will lose its competitive position. Also, issuance of the injunction will, on balance, cause no harm to the public interest. The harms suffered by homeowners surrounding the facility do not significantly outweigh the harm to interstate commerce that would result from application of the Delaware standards. Finally, the court holds that plaintiffs did not abuse their privileges under the temporary restraining order by expanding their operations because this expansion had begun prior to defendants' threatened enforcement of the Delaware standards.

Counsel for Plaintiffs
David S. Swayze, William E. Manning, James L. Holzman, Wendy E. Cohen
Prickett, Jones, Elliot, Kristol & Schnee
P.O. Box 1328, Wilmington DE 19899-1328
(302) 658-5102

Counsel for Defendants
John J. Polk, Ellen R. Chaikin, Deputy Attorneys General
844 King St., Wilmington DE 19801
(302) 487-6277