Horton v. The Kan. City S. Ry. Co.

Full title: Angela Horton and Kevin Houser, Petitioners, v. The Kansas City Southern…

Court: Supreme Court of Texas

Date published: Jun 30, 2023

No. 21-0769 (Tex. Jun. 30, 2023)

Opinion

21-0769

06-30-2023

Angela Horton and Kevin Houser, Petitioners, v. The Kansas City Southern Railway Company, Respondent

Jeffrey S. Boyd Justice

Argued January 31, 2023

On Petition for Review from the Court of Appeals for the Fifth District of Texas

Justice Busby filed a concurring opinion, in which Justice Devine, Justice Blacklock, and Justice Young joined.

OPINION

Jeffrey S. Boyd Justice

Petitioners sued the Kansas City Southern Railway Company (KC Southern) for the wrongful death of their mother, alleging KC Southern negligently maintained a railroad crossing by raising the crossing grade over time to form a "humped crossing" and by failing to replace a missing yield sign. In response to a single broad-form negligence question, the jury found both parties negligent and equally responsible for causing the accident, and the trial court entered judgment on the jury's verdict. The court of appeals held that the evidence supports a finding that the missing yield sign proximately caused the accident, but that federal law preempts a negligence claim based on the humped crossing. 666 S.W.3d 1, 9, 10 (Tex. App.-Dallas 2021). Because the appellate court could not determine which of the two allegations the jury relied on when it found KC Southern negligent, it reversed and remanded for a new trial. Id. at 12. We disagree with the court of appeals on both issues and hold: (1) federal law does not preempt the humped-crossing claim, and (2) no evidence supports the jury's finding that the absence of the yield sign proximately caused the accident. Based on these holdings, however, we agree with the court of appeals that a new trial is required. We thus affirm the court of appeals' judgment, but for different reasons.

I.

Background

A KC Southern train collided with Ladonna Sue Rigsby's pickup truck as she drove across a railroad track on a rural county road near her home. The track had been there for over a century, and KC Southern maintained it by lifting and adding materials under the rails and ties, incrementally raising the track over the course of many years. This created a "humped crossing," with the mid-point rising around thirty inches above the level road thirty feet away. No signal lights, bells, or barrier gates protected the crossing, but "crossbuck" signs-white, X-shaped signs reading "Railroad Crossing"-marked the tracks from both directions. The posts holding those signs also previously included yield signs, but-for reasons no one could explain-the yield signs were missing at the time of Rigsby's accident.

According to a video of the accident, recorded by a camera installed on the train, Rigsby slowed her vehicle to around seven miles per hour as she approached the track, and then to three or three-and-a-half miles per hour as she began to ascend the hump. Rigsby, who was deaf in her left ear, continued to cross the track as if she never saw or heard the train approaching from her left. She did not survive the collision.

Rigsby's adult children, Angela Horton and Kevin Houser (together, Horton), sued KC Southern, alleging negligence based on the humped crossing and missing yield sign. KC Southern filed a summary-judgment motion, asserting, among other things, that federal law preempts Horton's claim. The trial court denied the motion, and KC Southern filed a motion for reconsideration, arguing federal law at least preempts Horton's claim to the extent it is based on the humped crossing. The trial court did not rule on that motion, and the case proceeded to trial.

The trial court submitted a single broad-form question to the jury, asking whether the negligence of Rigsby or KC Southern proximately caused the accident. KC Southern objected to the question, arguing the court should submit two separate negligence questions-one based on Horton's humped-crossing allegation and the other on the missing-yield-sign allegation. The trial court overruled that objection. The jury found both Rigsby and KC Southern negligently caused the accident and assigned fifty percent of the responsibility to each. The trial court entered a final judgment based on the verdict, awarding Horton $200,000 in damages.

KC Southern appealed, and the court of appeals reversed, with one justice dissenting. 666 S.W.3d at 4, 25. The court concluded the evidence supports liability under the yield-sign allegation, but federal law preempts the claim to the extent it is based on the humped-crossing allegation. Id. at 14-15. Because the court could not "determine whether the jury rested its liability determination on [Horton's] preempted humped crossing theory, which should not have been submitted, or the missing yield sign theory," it remanded the case for a new trial only on the yield-sign allegation. Id. at 18. Horton and KC Southern both filed petitions for review, which we granted.

II.

Preemption

We begin by addressing whether federal law preempts Horton's negligence claim based on the humped crossing.¹ The United States Constitution provides that federal law "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby." U.S. Const. art. VI, cl. 2. As a result, federal statutes may preempt state laws and render them ineffective. Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008). They may do this expressly, by declaring that intent on the face of the statute, Arizona v. United States, 567 U.S. 387, 399 (2012), or impliedly, by demonstrating an intent to "occup[y] the field" or creating an irreconcilable "conflict," Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992) (first quoting Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 204, (1983), and then quoting Fid. Fed. Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153 (1982)). KC Southern asserts-and the court of appeals agreed-that provisions of the federal ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 (1995) (codified at 49 U.S.C. §§ 10101-16106), expressly and impliedly preempt Horton's humped-crossing claim. We disagree. To explain, we describe the ICCT Act and its relevant provisions, the separate Federal Rail Safety Act and its relationship to the ICCT Act, and other court decisions addressing preemption under the ICCT Act before turning to our own preemption analysis.

1 KC Southern no longer argues federal law preempts the negligence claim to the extent it is based on the missing yield sign.

A. The ICCT Act

Congress enacted the ICCT Act "to reform economic regulation of transportation, and for other purposes." 109 Stat. at 803. The Act amended numerous federal statutes, including Subtitle IV of Title 49 of the United States Code, which addresses and governs interstate transportation. Id. at 803-04. Part A of Subtitle IV specifically addresses rail transportation. 49 U.S.C. §§ 10101-11908. KC Southern's contention that the Act preempts Horton's humped-crossing claim relies on this part, which we refer to as the Rail Provisions.

As part of its reform of "economic regulation of transportation," the ICCT Act abolished the Interstate Commerce Commission and created a new federal agency called the Surface Transportation Board, granting it "jurisdiction over transportation by rail carrier that is . . . only by railroad" or, in some circumstances, "by railroad and water." 109 Stat. at 807; see 49 U.S.C. § 10501(a)(1). More specifically, Section 10501(b) grants the Surface Transportation Board "exclusive" jurisdiction over:

(1) transportation by rail carriers, and the remedies provided in [the Rail Provisions] with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and

(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State.

49 U.S.C. § 10501(b). Immediately following this jurisdictional grant, the section includes a preemption clause: "Except as otherwise provided in [the Rail Provisions], the remedies provided under [the Rail Provisions] with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law." Id. (emphasis added).

The Act defines the term "rail carrier" to mean "a person providing common carrier railroad transportation for compensation." Id. § 10102(5). And it defines the term "transportation" to include a "facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, by rail," and "services related to that movement." Id. § 10102(9). The parties here do not dispute that KC Southern is a "rail carrier" and that its tracks and crossings qualify as "facilities" or "equipment," and thus "transportation."²

2 The Second Circuit has held that rail crossings do not qualify as a "facility" under the Act, see Island Park, LLC v. CSX Transp., 559 F.3d 96, 103 n.9 (2d Cir. 2009), and the Fifth Circuit has expressed similar skepticism, see Franks Inv. Co. v. Union Pac. R.R. Co., 593 F.3d 404, 411 (5th Cir. 2010). In this case, the dissenting opinion in the court of appeals expressed a similar concern that a broad construction of the term "facility" could preclude any state regulatory authority over any movement-by vehicles, bicycles, or pedestrians-over a rail crossing. 666 S.W.3d at 20 n.2 (Carlyle, J., dissenting). Because the parties here do not raise the issue, we assume without deciding that the Rail Provisions reach rail crossings, although that assumption does not affect our conclusions regarding the types of state laws Section 10501(b) preempts.

B. The Federal Rail Safety Act

The ICCT Act is not the only federal statute that addresses rail transportation. The Federal Rail Safety Act (the Safety Act) created a separate statute contained within Subtitle V of Title 49 of the United States Code. See id. §§ 20101-21311. The Safety Act directly addresses rail-safety concerns, as its express purpose "is to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." Id. § 20101. The Safety Act delegates rail-safety regulation to the federal Secretary of Transportation, not to the Surface Transportation Board. Id. § 20103. Because Horton alleges the humped crossing created safety issues, the Safety Act complicates the question of whether the ICCT Act preempts Horton's common-law negligence claim, particularly because the Safety Act contains its own preemption provisions that explicitly address common-law claims concerning safety issues.

The Safety Act's preemption provisions permit states to adopt their own regulations governing rail safety, but only if the state regulation is "not incompatible with" federal regulations and "does not unreasonably burden interstate commerce." Id. § 20106(a)(2); see CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993) (holding federal regulations adopted under the Safety Act preempt state-law regulations "if the federal regulations substantially subsume the subject matter of the relevant state law"). In 2002, however, Congress amended the Safety Act to "clarify" that nothing in Section 20106 "shall be construed to preempt an action under State law seeking damages for personal injury, death, or property damage" if the action alleges that a party (a) "failed to comply with the Federal standard of care established by a regulation or order issued by the Secretary of Transportation," (b) "failed to comply with its own plan, rule, or standard that it created pursuant to a regulation or order issued by" the Secretary, or (c) "failed to comply with a State law, regulation, or order that is not incompatible with subsection (a)(2)." 49 U.S.C. §20106(b). As a result, federal rail-safety regulations can provide the "standard of care by which a defendant's actions are judged for negligence." Gallo v. Union Pac. R.R. Co., 372 F.Supp.3d 470, 483 (W.D. Tex. 2019) (addressing cases). In the absence of a federal safety regulation covering the subject matter at issue, the Safety Act has no preemptive effect. Id. (citing Easterwood, 507 U.S. at 664).

Addressing the relationship between the Safety Act and the ICCT Act, courts have generally agreed that "the federal statutory scheme places principal federal regulatory authority for rail safety with the Federal Railroad Administration . . . not the [Surface Transportation Board]" and thus the Safety Act "provides the appropriate basis for analyzing whether a state law, regulation or order affecting rail safety is pre-empted by federal law." Island Park, 559 F.3d at 107; see BNSF Ry. Co. v. Hiett, 22 F.4th 1190, 1195-96 (10th Cir.), cert. denied sub nom. City of Edmond v. BNSF Ry. Co., 142 S.Ct. 2835 (2022). As the Sixth Circuit explained, the Federal Railroad Administration's and the Surface Transportation Board's "complementary exercise of their statutory authority accurately reflects Congress's intent for the [ICCT Act] and [the Safety Act] to be construed in pari materia," granting the Federal Railroad Administration "primary authority over rail safety matters" and subjecting state laws related to rail safety to "preemption analysis under the Safety Act," not under the ICCT Act. Tyrrell v. Norfolk S. Ry. Co., 248 F.3d 517, 523 (6th Cir. 2001). Moreover, the Safety Act specifically addresses safety issues affecting "grade crossings and railroad rights of way," which it expressly refers to as "the railroad grade crossing problem." Iowa, Chi. & E. R.R. Corp. v. Washington County, 384 F.3d 557, 559 (8th Cir. 2004) (quoting 49 U.S.C. § 20134(a)). As a result, the Safety Act, rather than the ICCT Act, appears to be the primary authority governing federal preemption of state-law claims addressing rail safety, and particularly the safety of railroad crossings.

But the Safety Act and the ICCT Act have a "complicated" relationship, particularly "when a state action or common law claim falls at the intersection of [the ICCT Act's] realm of economic regulation and the [Safety Act]'s realm of safety regulation." Ezell v. Kan. City S. Ry. Co., 866 F.3d 294, 300 n.6 (5th Cir. 2017). The Surface Transportation Board has suggested that "the overwhelming weight of precedent holds that safety issues are generally governed by [the Safety Act] preemption." Jimmy Lee Waneck & Starr Swearingen Waneck, et al.-Petition for Declaratory Order, FD 36167, 2018 WL 5723286, at *4 (S.T.B. Oct. 31, 2018). Although "there can be rare cases when both the Safety Act and [the ICCT Act] preemption may apply," such cases do not include allegations of unsafe conditions at a railroad crossing.

KC Southern does not contend the Safety Act preempts Horton's humped-crossing negligence claim but instead asserts that the final sentence of Section 10501(b) of the ICCT Act expressly preempts Horton's claim because it would regulate KC Southern's construction, repair, and maintenance of the humped crossing. And in the event it does not, KC Southern contends the Rail Provisions impliedly preempt such claims. We must thus consider whether these facts provide one of the circumstances under which the ICCT Act may have a preemptive effect over a state-law rail-safety claim.

C. Precedent

We are not the first to consider this thorny question. Numerous courts have addressed the scope of preemption under Section 10501(b) and have reached varying conclusions. Many have addressed the question of whether the section preempts state and local legislative enactments-particularly statutes, regulations, and ordinances-as opposed to state common-law claims like the negligence claim at issue in this case. Most of these have concluded Section 10501(b) expressly or "completely"³ preempts state and local legislation that attempts to "regulate," "manage," "govern," or "restrain" a rail carrier's "operations," or at least its operations "in the economic realm."⁴ Conversely, others have held Section 10501(b) does not expressly preempt state and local legislation that does not attempt to "regulate" or "interfere with" a rail carrier's operations.⁵

3 Many federal courts have analyzed preemption under Section 10501(b) to determine their jurisdiction under the federal removal statute. Under the "complete preemption doctrine," a state-law claim arises under federal law and can be removed to federal court if a federal statute wholly displaces the state-law claim. See Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 8 (2003). Although complete preemption and express preemption are not identical concepts, they are sufficiently similar to each other-and sufficiently distinct from implied (or "as-applied") preemption-to render the complete preemption cases helpful guidance in this case.

4 See, e.g., Hiett, 22 F.4th at 1192 (holding Section 10501(b) expressly preempted a state statute regulating trains blocking track crossings because the statute "regulates railroad operations"); Tex. Cent. Bus. Lines Corp. v. City of Midlothian, 669 F.3d 525, 533 (5th Cir. 2012) (holding Section 10501(b) expressly preempted a city ordinance that prevented a rail carrier from expanding transloading operations because the ordinance dictated "construction design and layout of railroad tracks" and thus "would frustrate [the carrier's] economic decision making"); Elam v. Kan. City S. Ry. Co., 635 F.3d 796, 807 (5th Cir. 2011) (holding Section 10501(b) expressly and completely preempted a state statute regulating trains blocking track crossings because the statute "is a direct attempt to manage [the rail carrier's] decisions in the economic realm"); Green Mountain R.R. v. Vermont, 404 F.3d 638, 643 (2d Cir. 2005) (holding Section 10501(b) expressly preempted a state environmental-land-use statute requiring a pre-construction permit for a transloading facility because the statute restrained a rail carrier from developing its land); see also State v. CSX Transp., Inc., 200 N.E.3d 215, 220 (Ohio 2022) (holding Section 10501(b) expressly preempted a state statute regulating trains blocking track crossings because the statute regulates, manages, and governs rail traffic), petition for cert. filed, 91 U.S.L.W. 3130 (U.S. Nov. 10, 2022) (No. 22-459); A & W Props., Inc. v. Kan. City S. Ry. Co., 200 S.W.3d 342, 348 (Tex. App.-Dallas 2006, pet. denied) (holding Section 10501(b) expressly preempted a landowner's suit to enforce a rail carrier's alleged statutory obligation to widen a bridge and culvert to prevent flooding of the landowners' land because the statute would regulate rail operations); Burlington N. & Santa Fe Ry. Co. v. City of Houston, 171 S.W.3d 240, 248-49 (Tex. App.-Houston [14th Dist.] 2005, no pet.) (holding Section 10501(b) preempted a state statute limiting a rail carrier's condemnation power and preempted a state paramount-purpose doctrine because they prevented the rail carrier from constructing and operating a rail line the Surface Transportation Board had approved).

5 See, e.g., Island Park, 559 F.3d at 103-04 (holding Section 10501(b) did not expressly preempt a state agency order requiring a rail carrier to close a private rail crossing because the order did not interfere with the carrier's operations); New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 332-33 (5th Cir. 2008) (holding Section 10501(b) did not completely preempt a state law governing landowners' access across rail lines because local crossing disputes typically do not regulate carriers); Iowa, Chi. & E. R.R. Corp., 384 F.3d at 561-62 (holding Section 10501(b) did not expressly preempt a state statute requiring rail carriers to construct and maintain safe bridges and crossings, at least absent evidence that the carrier obtains federal funding for such projects); Fla. E. Coast Ry. Co. v. City of West Palm Beach, 266 F.3d 1324, 1329, 1331 (11th Cir. 2001) (holding Section 10501(b) did not preempt a city zoning and licensing ordinance as applied to an aggregate company leasing land from a rail carrier because application "does not constitute 'regulation of rail transportation'").

Several courts have also addressed Section 10501(b)'s preemptive effect on common-law claims, including claims for negligence,⁶ trespass, nuisance, and even inverse condemnation. Some have held that Section 10501(b) expressly preempted such common-law claims-which complained of noise and vibrations from a rail carrier's operations or of a train's speed, length, scheduling, use of side tracks, and extended blocking of crossings-because such claims (like the state and local legislation discussed above) sought to regulate, manage, or govern a rail carrier's operations or rail transportation.⁷

6 Courts have employed a different analysis when addressing negligence per se claims based on a rail carrier's alleged violation of a statute, regulation, or ordinance, usually holding Section 10501(b) preempts such claims when they are "based solely on [a] preempted state statute." Elam, 635 F.3d at 807; see Ezell, 866 F.3d at 299-301 (holding Section 10501(b) expressly preempted a negligence per se claim alleging violation of an anti-blocking statute); R.R. Ventures, Inc. v. Surface Transp. Bd., 299 F.3d 523, 563 (6th Cir. 2002) ("Congress intended to preempt the Ohio state statutes, and any claims arising therefrom, to the extent that they intrude upon the [Surface Transportation Board's] exclusive jurisdiction over 'transportation by rail carriers'. . . ."); Friberg v. Kan. City S. Ry. Co., 267 F.3d 439, 443 (5th Cir. 2001) (holding Section 10501(b) preempted a negligence per se claim based on alleged violations of a state anti-blocking statute because "regulation of KCS train operations, as well as the construction and operation of the KCS side tracks, is under the exclusive jurisdiction of the [Surface Transportation Board] unless some other provision in the [ICCT Act] provides otherwise"). We need not and do not address preemption of such negligence per se claims in this case.

7 See, e.g., Ezell, 866 F.3d at 299-300 (holding Section 10501(b) expressly preempted a negligence claim based on a train's blocking of a crossing because the claim would "economically regulate [the carrier's] switching operations" (quoting Elam, 635 F.3d at 807)); Tubbs v. Surface Transp. Bd., 812 F.3d 1141, 1145-46 (8th Cir. 2015) (holding Section 10501(b) expressly preempted a landowners' common-law claims for trespass, nuisance, negligence, inverse condemnation, and statutory trespass, alleging a rail carrier built embankments that caused flooding on the landowner's land, because the claims "would unreasonably burden or interfere with rail transportation"); Franks, 593 F.3d at 411 (stating Section 10501(b) would expressly preempt "a tort suit that attempts to mandate when trains can use tracks and stop on them" because the suit would "attempt[] to manage or govern rail transportation in a direct way"); Friberg, 267 F.3d at 444 (holding Section 10501(b) expressly preempts common-law claims seeking to impose liability for "a railroad's economic decisions such as those pertaining to train length, speed or scheduling"); Rushing v. Kan. City S. Ry. Co., 194 F.Supp.2d 493, 500 (S.D.Miss. 2001) (holding Section 10501(b) expressly preempted common-law nuisance and negligence claims complaining of a rail carrier's annoying switch-yard operations); Guckenberg v. Wis. Cent. Ltd., 178 F.Supp.2d 954, 959 (E.D. Wis. 2001) (holding Section 10501(b) expressly preempted a common-law nuisance claim complaining of a rail carrier's use of a side track because the claim would effectively regulate the carrier's operations); A & W Props., 200 S.W.3d at 351 (holding Section 10501(b) expressly preempted a landowner's common-law nuisance, trespass, and negligence claims seeking to force a rail carrier to widen a bridge and culvert to prevent flooding of the landowners' land because the claims would regulate the carrier's operations).

Other courts, however, have held that Section 10501(b) does not expressly preempt common-law claims, for various reasons. Some concluded the rail carrier's allegedly negligent conduct was not the type of "transportation"-related conduct the Rail Provisions address and for which they provide remedies that carry preemptive power under Section 10501(b).⁸ Others focused on the idea that an adverse judgment on a common-law claim would not necessarily require the carrier to alter its operations, see Elam, 635 F.3d at 813-14, or observed that a common-law claim seeking only compensatory damages does not attempt to "manage" or "govern" operations, even in the "economic realm," id. at 813.⁹ And several concluded that common-law claims, by their nature, do not "directly" address rail-carrier operations and instead have only an "incidental" effect on rail transportation. See, e.g., id. (citing Franks, 593 F.3d at 411).

8 See, e.g., Emerson v. Kan. City S. Ry. Co., 503 F.3d 1126, 1131 (10th Cir. 2007) (holding Section 10501(b) did not expressly preempt claims for trespass, unjust enrichment, nuisance, and negligence based on a rail carrier's alleged dumping of used railroad ties and vegetation in a drainage culvert, causing flooding to the plaintiffs' land, because "these acts or omissions are not 'transportation' under § 10102(9)"); Rushing, 194 F.Supp.2d at 501 (holding although Section 10501(b) expressly preempted negligence and nuisance claims complaining of noise and vibrations caused by a carrier's rail-yard operations, it did not preempt such claims complaining that a carrier's construction of a berm to minimize rail-yard noise resulted in flooding the plaintiff's property because the carrier's "design/construction of the berm does not directly relate to the manner in which the Defendant conducts its switching activities").

9 See Elam, 635 F.3d at 813 (holding Section 10501(b) did not expressly preempt a negligent-failure-to-warm claim by a driver who drove into the side of a stopped train because a "typical negligence claim seeking damages for a typical crossing accident (such as the Elams' simple negligence claim) does not directly attempt to manage or govern a railroad's decisions in the economic realm"); Rushing, 194 F.Supp.2d at 501 (holding Section 10501(b) did not expressly preempt negligence and nuisance claims complaining that a carrier's construction of a berm to minimize rail-yard noise resulted in flooding the plaintiffs' property because "an order by the Court directing the Defendant to compensate and correct drainage problems resulting from the construction of the berm would not implicate the type of economic regulation Congress was attempting to prescribe when it enacted the [ICCT Act]").

The Fifth Circuit focused on this direct-versus-incidental distinction in Franks, holding that Section 10501(b) did not expressly preempt a landowner's claim seeking to enforce a covenant in an easement deed to prevent a rail carrier from removing a track crossing on the landowner's land, explaining that the claim was "governed by Louisiana property laws and rules of civil procedure that have nothing to do with railroad crossings. Railroads are only affected when the [easement] happens to cross a railroad." 593 F.3d at 411. The same court later applied that distinction to conclude the ICCT Act did not expressly preempt a negligent-failure-to-warn claim, explaining that, "[l]ike state property laws and rules of civil procedure that generally 'have nothing to do with railroad crossings,' the effects of state negligence law on rail operations are merely incidental." Elam, 635 F.3d at 813 (quoting Franks, 593 F.3d at 411). As a Texas federal district court explained when applying this Fifth Circuit approach, although tort claims may "affect the management or governance of railroads if the railroad company is the tortfeasor, these claims arise under state common law and are not intended to regulate railroad transportation even if they may incidentally affect it." Gallo, 372 F.Supp.3d at 480.¹⁰

10 See Battley v. Great W. Cas. Ins. Co., No. CIV.A. 14-494-JJB, 2015 WL 1258147, at *4-5 (M.D. La. Mar. 18, 2015) ("[T]he plaintiffs' negligence claim [does not] challenge [the carrier's] general operating procedures," and a "judgment for the plaintiffs based on the circumstances presented in this case would have only an incidental and limited effect on rail transportation.").

Two other federal district courts within the Fifth Circuit, however, have addressed "humped crossing" negligence claims like the one at issue here, and both concluded that Section 10501(b) expressly preempted such claims. Addressing claims by those injured and killed when a train struck a tour bus that got stuck on a humped crossing, a federal district court in Mississippi reasoned that the plaintiffs' negligent-maintenance claims were "tantamount to a claim regarding the design and construction of the crossing" and thus "directly attempt to manage or govern a railroad's decisions in the economic realm such as the construction and operation of tracks." Waneck v. CSX Corp., No. 1:17CV106-HSO-JCG, 2018 WL 1546373, at *5 (S.D.Miss. Mar. 29, 2018). Addressing similar claims arising from a similar train-bus collision, a Texas federal district court reasoned that an adverse judgment would require "changes in design and construction of railroad tracks and crossings" and thus "have the effect of managing or governing rail transportation in the economic realm." Voight v. CSX Transp., Inc., No. 3:17-CV-01018-N, slip op. at 7, 9 (N.D. Tex. June 19, 2017).

A federal district court in Kentucky, however, expressly rejected the reasoning in Voight and Waneck, concluding that both "cases are inconsistent with Sixth Circuit and Supreme Court law on complete preemption." Minton v. Paducah & Louisville Ry., Inc., 423 F.Supp.3d 375, 383 (W.D. Ky. 2019). And the Surface Transportation Board itself rejected their reasoning in response to requests for administrative rulings from the parties involved in Waneck. See Waneck, 2018 WL 5723286, at *4. According to the Board, the question of federal preemption of these types of humped-crossing claims "should be governed by the preemption provisions of the Federal Railway Safety Act . . . and not by 49 U.S.C. § 10501(b)." Id. at *1. Expressly rejecting the courts' holdings in Voight and Waneck, the Board opined that the plaintiffs' negligent-maintenance claims based on humped crossings "appear to be focused on purely safety-related issues" and thus "are not in direct conflict with the Board's exclusive jurisdiction over transportation that is part of the interstate rail network." Id. at *7.

Having described the ICCT Act's relevant provisions and its complex relationship with the Safety Act, as well as the broad array of precedent considering this question, we now turn to the question of whether Section 10501(b) expressly or impliedly preempts Horton's humped-crossing claim. We agree with KC Southern that federal law can expressly preempt common-law negligence claims in some circumstances,¹¹ but we hold that the ICCT Act does not expressly preempt Horton's humped-crossing claim. We reach this conclusion based on the ICCT Act's clear language, which much of the precedent has underemphasized.

11 It is well-established that federal law can preempt a state common-law negligence claim. See Cont'l Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 282 (Tex. 1996); see also Easterwood, 507 U.S. at 676; Ezell, 866 F.3d at 298. But courts have applied presumptions both for and against federal preemption of state laws-particularly state common-law claims like negligence-that are relevant here. Courts presume, for example, that federal law does not preempt "the historic police powers of the State . . . unless that was the clear and manifest purpose of Congress" and that presumption "applies with particular force when Congress legislates in a field traditionally occupied by the states." Altria, 555 U.S. at 77 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). And as the Supreme Court noted long ago, "[t]he care of [railroad] grade crossings is peculiarly within the police power of the states." Lehigh Valley R. Co. v. Bd. Of Pub. Util. Comm'rs, 278 U.S. 24, 35 (1928). This presumption "is nowhere stronger than under circumstances in which a state is exercising" authority "in matters involving their citizens' public health and safety" because states have traditionally "exercised primary authority" in such matters. Great Dane Trailers, Inc. v. Est. of Wells, 52 S.W.3d 737, 743 (Tex. 2001) (first citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996), and then citing Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 718-19 (1985)). Because common-law negligence claims "involve the state's power to regulate health and safety matters," overcoming the presumption against preemption of a negligence claim presents a "difficult burden." Id. On the other hand, the presumption against preemption applies with less force when the federal statute addresses a field in which the federal government has historically been significantly involved, as is true for railroad regulation. Elam, 635 F.3d at 803-04. Congress and federal courts have long recognized a need for federal regulation of railroad operations. City of Auburn v. United States, 154 F.3d 1025, 1029 (9th Cir. 1998). These considerations make the usual presumption against preemption somewhat hazy in the context of this case. But we are guided here by our previous recognition that, “while a federal requirement would ordinarily not preempt general state common law requirements such as a duty of care or a duty to warn in the abstract, a federal requirement would preempt a particularized application of such duties that imposed a specific ‘standard of care or behavior' different or in addition to the federal requirement.” Worthy v. Collagen Corp., 967 S.W.2d 360, 371 (Tex. 1998) (quoting Medtronic, 518 U.S. at 504-05 (Breyer, J., concurring)).

D. Express Preemption

It is clear that Section 10501(b) expressly "preempts" something, but we must focus on the statute's language to determine the scope of that preemption. "Where, as in this case, Congress has superseded state legislation by statute, our task is to 'identify the domain expressly pre-empted.' To do so, we focus first on the statutory language, 'which necessarily contains the best evidence of Congress' pre-emptive intent.'" Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260 (2013) (first quoting Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001), and then quoting Easterwood, 507 U.S. at 664).

As noted, Section 10501(b) states that "the remedies provided" under the Rail Provisions "with respect to regulation of rail transportation" are "exclusive and preempt" the "remedies" provided under state law. 49 U.S.C. § 10501(b). In a statement other courts have often quoted, one federal district court suggested that it "is difficult to imagine a broader statement of Congress's intent to preempt state regulatory authority over railroad operations." CSX Transp., Inc. v. Ga. Pub. Serv. Comm'n, 944 F.Supp. 1573, 1581 (N.D.Ga. 1996). We agree with the Eleventh Circuit, however, that "[a]lthough this subsection on its surface seems to provide for broad pre-emption, the text contains limitations on the reach of pre-emption." West Palm Beach, 266 F.3d at 1330. Specifically, the section grants preemptive power only to the "remedies" provided in the Rail Provisions "with respect to regulation of rail transportation." 49 U.S.C. § 10501(b). To determine the scope of preemption, we must explore the section's references to "remedies," "with respect to," and "regulation" of rail transportation.

1. "Remedies"

Section 10501(b)'s preemption clause uses "remedies" twice-first to describe what has preemptive power (remedies "provided under [the Rail Provisions] with respect to regulation of rail transportation"), and then to describe what is preempted (remedies "provided under Federal or State law"). Id. Thus, per the clause's explicit text, the "remedies" that preempt state law are those provided in the Rail Provisions. The Rail Provisions provide "remedies" in Sections 11701 through 11708, including the recovery of "damages sustained by a person as a result of an act or omission of" a rail carrier "in violation of" the Rail Provisions. Id. § 11704(b). A person who sustains such damages as a result of a violation may assert a claim for those damages before the Surface Transportation Board and through a civil action to enforce the Board's order. Id. § 11704(c)(1)-(2), (d)(1)-(2).

Relying primarily on the ICCT Act's purpose and legislative history, some courts have concluded that the Rail Provisions' remedies address only economic regulation of rail transportation. See, e.g., Elam, 635 F.3d at 805 (relying on legislative history to "observe Congress was particularly concerned about state economic regulation of railroads when it enacted the [ICCT Act]"). Based on this conclusion, they have construed Section 10501(b) to grant preemptive power to (and against) only "laws (and remedies based on such laws) that directly attempt to manage or govern a railroad's decisions in the economic realm." Id. at 807 (emphasis added).¹² Other courts have disagreed, see, e.g., N.Y. Susquehanna & W. Ry. Corp. v. Jackson, 500 F.3d 238, 252 (3d Cir. 2007) ("[The ICCT Act] does not preempt only explicit economic regulation."), as has the Surface Transportation Board, see CSX Transp., Inc.-Petition for Declaratory Order, Fed. Carr. Cas. (CCH) ¶ 37186, 2005 WL 584026, at *7-8 (S.T.B. Mar. 14, 2005) (concluding that Section 10501's preemption scope "is broader than just direct economic regulation of railroads" and that states and municipalities "cannot take an action that would have the effect of foreclosing or unduly restricting a railroad's ability to conduct its operations").

12 Although the Elam court acknowledged that the "preemptive effect of § 10501(b) may not be limited to state economic regulation," it nevertheless concluded that because "economic regulation is at the core of [the ICCT Act] preemption," it expressly and completely preempts only state laws that "directly attempt to manage or govern a railroad's decisions in the economic realm." Elam, 635 F.3d at 806-07.

Based on the ICCT Act's text, we also disagree. The Act's introduction states that its purpose is "to reform economic regulation of transportation, and for other purposes," 109 Stat. at 803 (emphasis added), and we find nothing in its text that strictly limits its remedies to address only violations of "economic" regulations. Yet we note that, as even the Board has suggested, characterizing the ICCT Act as regulating "economic" operations can provide a helpful label for distinguishing between the ICCT Act and the Safety Act, which generally governs rail-safety issues, along with their respective preemption provisions. See Waneck, 2018 WL 5723286, at *4 (agreeing that "safety issues are generally governed by [the Safety Act] preemption" but concluding "there can be rare cases when both [the Safety Act] and [the ICCT Act] preemption may apply"). In other words, whether we label¹³ the ICCT Act's regulatory scope as "economic" or merely "non-safety operational-related," as the Board has labeled it,¹⁴the important point is that the two Acts generally address different regulatory scopes, although they may overlap.

13 As the Second Circuit has explained, labels distinguishing between "economic" and other types of regulation, such as "environmental" regulation, are not particularly "useful" in this context because various types of regulation can and often do overlap. Green Mountain, 404 F.3d at 644-45 (explaining how a regulation labeled as "environmental" can "in fact amount to 'economic regulation' when it prevents a carrier from conducting economic activities" (quoting City of Auburn, 154 F.3d at 1031)).

14 Waneck, 2018 WL 5723286, at *7 (agreeing it can be "difficult for courts and the Board to draw the line between safety-related claims (subject to [the Safety Act] preemption) and non-safety operational-related claims (subject to [the ICCT Act] preemption)" (citing Griffioen v. Cedar Rapids & Iowa City Ry. Co., 914 N.W.2d 273, 289 (Iowa 2018))).

These observations about the remedies the Rail Provisions provide (in contrast to those the Safety Act provides) matter here because the types of state-law "remedies" Section 10501(b) preempts are the same types of federal-law remedies the Rail Provisions provide. Although the sentence does not expressly limit its reference to state-provided remedies to those "with respect to regulation of rail transportation," the sentence clearly imposes that limitation. See, e.g., Franks, 593 F.3d at 410 (explaining that the preempted state-law "remedies receive their meaning from the earlier part of the sentence"). We thus conclude that Section 10501(b) grants preemptive power only to remedies provided in the Rail Provisions "with respect to regulation of rail transportation," and those remedies only preempt state-law remedies "with respect to regulation of rail transportation." We thus turn to the meaning of that limitation.

2. "With respect to regulation"

Consistent with the jurisdiction the ICCT Act grants exclusively to the Surface Transportation Board, the Rail Provisions address a rail carrier's "rates, classifications, rules . . . practices, routes, services, and facilities" and the "construction, acquisition, operation, abandonment, or discontinuance of" its tracks and facilities. 49 U.S.C. § 10501(b); see Franks, 593 F.3d at 409 (addressing the Act's exclusive remedies); Jackson, 500 F.3d at 252 (same). Section 10501(b), however, does not grant preemptive power to or against all laws that merely affect these types of activities, but instead grants such power only to and against remedies provided "with respect to regulation" of such activities.

Rather than encompassing any law that might indirectly touch on the relevant subject matter, the phrase "with respect to" limits the clause's preemptive effect so that it includes only those remedies that directly "concern" or "involve" the matter the clause describes. Dan's City, 569 U.S. at 261-62 . ¹⁵ And the matter the clause describes- "regulation of rail transportation"-further narrows its preemptive scope. Section 10501(b) does not preempt "all state laws"¹⁶or even all state-law remedies "with respect to rail transportation." Instead, it preempts state-law remedies with respect to "regulation of" rail transportation. 49 U.S.C. § 10501(b). The inclusion of the word "regulation" within the description of the section's preemptive scope "necessarily means something qualitatively different from remedies 'with respect to rail transportation.'" West Palm Beach, 266 F.3d at 1331.

15 See also Consumer Data Indus. Ass'n v. Frey, 26 F.4th 1, 8 (1st Cir. 2022) (holding a statute that preempted state laws "with respect to" a subject intentionally narrowed the scope of preemption to those laws that directly concern the subject matter), cert. denied, 143 S.Ct. 777 (2023); Galper v. JP Morgan Chase Bank, N.A., 802 F.3d 437, 446 (2d Cir. 2015) (same).

16 As the Eleventh Circuit has noted, see West Palm Beach, 266 F.3d at 1330, Section 11321 of the same chapter provides a helpful contrast. See 49 U.S.C. § 11321(a). There, the statute expressly provides that a rail carrier is exempt from "all other law, including State and municipal law," as necessary to permit the carrier to participate in a corporate consolidation, merger, or acquisition the Surface Transportation Board has approved. Id. (emphasis added). As the Supreme Court has recognized, this language "is clear, broad, and unqualified." Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass'n, 499 U.S. 117, 128 (1991). Section 10501(b), by contrast, does not preempt "all other law," but only state remedies "with respect to the regulation of rail transportation."

Both the Supreme Court and this Court have recognized the narrow scope of a statutory reference to laws that "regulate" a subject matter. Concluding that an insured's common-law claims against an insurance carrier for breach of contract, breach of fiduciary duty, and fraud did not "regulate insurance," the Supreme Court explained that a "common-sense view of the word 'regulates' would lead to the conclusion that in order to regulate insurance, a law must not just have an impact on the insurance industry, but must be specifically directed toward that industry." Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50 (1987) (emphasis added).¹⁷ And applying that same "common-sense view," we held that Texas laws that empower state-agency executives to discipline licensees for violations of other laws that "regulate" abortions are not themselves laws that regulate abortions because such laws are not "specifically directed toward" that subject. Whole Woman's Health v. Jackson, 642 S.W.3d 569, 578 (Tex. 2022). Similarly, as discussed above, the Fifth Circuit has held that Section 10501(b) expressly preempts state "laws that have the effect of managing or governing rail transportation." Franks, 593 F.3d at 410 (emphasis added).

17 See also Ky. Ass'n of Health Plans, Inc. v. Miller, 538 U.S. 329, 334 (2003); Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 365-66 (2002); UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 368 (1999); FMC Corp. v. Holliday, 498 U.S. 52, 61 (1990).

Under this "common-sense view," a state statute that restricts the amount of time a train may block a crossing "regulates" rail transportation because the statute "homes in on 'railroad compan[ies]'" and "has no application" at all "except with respect to the operation of railroads at rail crossings." Elam, 635 F.3d at 807 (quoting Miss. Code § 77-9-235). But general laws that are not specifically directed toward rail transportation, such as general state property laws, "are not meant to regulate railroad transportation, though at times they may have an incidental effect on railroad transportation." Franks, 593 F.3d at 411. The same is true of "standard building, fire, and electrical codes," which do not specifically "target[] the railroad industry," Jackson, 500 F.3d at 254, and even common-law contract laws, which enforce "[v]oluntary agreements between parties" and "are not presumptively regulatory acts," PCS Phosphate Co. v. Norfolk S. Corp., 559 F.3d 212, 218 (4th Cir. 2009). In the same way, a common-law negligence claim does not ordinarily "regulate" rail transportation because it is not specifically directed toward rail transportation and only incidentally affects rail transportation when the alleged tortfeasor happens to be a rail carrier.

As we have previously recognized, although "the term 'law' can include both common law and statutory law" and "jury awards can have an effect akin to regulation," generally, such a "regulatory effect is not as direct as that of positive enactments," and thus a federal law that preempted state "laws and regulations" did not preempt state common-law claims. Moore v. Brunswick Bowling & Billiards Corp., 889 S.W.2d 246, 247, 249-50 (Tex. 1994) (holding the Federal Boat Safety Act did not preempt a "state law tort claim that a boat was defective because it lacked a propeller guard").¹⁸

18 We are aware, of course, of the Supreme Court's observations that state "regulation can be as effectively exerted through an award of damages as through some form of preventive relief" and that an "obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy." San Diego Bldg. Trades Council, Millmen's Union, Loc. 2020 v. Garmon, 359 U.S. 236, 246-47 (1959). And the Court quoted this principle again as part of its preemption analysis in Cipollone. 505 U.S. at 521. In this context, however, the text of Section 10501(b) indicates a narrower understanding of the term "regulation." Neither of those cases addressed a clause preempting state laws or remedies related to "regulation" of a subject matter, much less "with respect to" such "regulation." Because the federal law at issue in Garmon provided essentially no guidance on the scope of its preemptive effect, the Court based its decision in that case on its own perception of the federal law's "national purposes," 359 U.S. at 244, not on a statute that preempted state "regulation" of anything, id. at 240 (noting that the federal law "leaves much to the states, though Congress has refrained from telling us how much" (quoting Garner v. Teamsters, Chauffeurs & Helpers Loc. Union No. 776 (A.F.L.), 346 U.S. 485, 488 (1953))). Similarly, in Cipollone, the federal law at issue preempted any "requirement or prohibition . . . imposed under state law," not any state law that "regulated" the subject matter. 505 U.S. at 515 (emphasis added). The Court concluded this "broad" language, not any reference to "regulation," effected preemption of state common-law claims. Id. at 520. In fact, the Court recognized that a prior version of the federal law, which did not target state "requirements or prohibitions," "most naturally refers to positive enactments by those bodies, not to common-law damages actions" and thus preempted "rulemaking bodies from mandating particular cautionary statements and did not pre-empt state-law damages actions." Id. at 519-20. The prior law, the Court explained, was concerned not with "requirements or prohibitions" but with "'regulations'-positive enactments, rather than common-law damages actions." Id. at 521 n.19.

The combination of these phrases, with their respective histories, is determinative, especially when considered within the context of the chapter that also includes the Safety Act. Section 10501(b) does not expressly preempt this common-law negligence claim. It may be, as other courts have held, that a common-law claim could so directly seek to control, manage, or govern the core operational functions of a rail carrier that it could only be said to seek a "remedy with respect to regulation of rail transportation."¹⁹ But in our view, negligence claims based on railroad-crossing safety will rarely meet that standard.

19 See, e.g., West Palm Beach, 266 F.3d at 1331 (holding Section 10501(b) preempts "state laws that may reasonably be said to have the effect of 'manag[ing]' or 'govern[ing]' rail transportation, while permitting the continued application of laws having a more remote or incidental effect on rail transportation" (quoting Regulation, Black's Law Dictionary (6th ed. 1990))); Elam, 635 F.3d at 805 (holding Section 10501(b) expressly preempts laws that "have the effect of managing or governing rail transportation," but not "generally applicable state laws that have a mere 'remote or incidental' effect on rail transportation" (quoting Franks, 593 F.3d at 410)); City of Midlothian, 669 F.3d at 532 ("[E]nactments that 'have the effect of managing or governing,' and not merely incidentally affecting, rail transportation are expressly or categorically preempted under the ICCTA." (quoting Franks, 593 F.3d at 410)).

Considering Section 10501(b)'s language limiting its preemptive effect to "remedies" provided by state law "with respect to regulation" of rail transportation, the Safety Act's primary role in addressing rail-safety issues, and its clause expressly allowing certain common-law claims, we conclude that Section 10501(b) does not expressly preempt Horton's common-law claim that KC Southern negligently maintained the crossing resulting in an allegedly distracting and dangerous hump.

E. Implied Preemption

We now turn to the issue of whether Section 10501(b) impliedly preempts Horton's humped-crossing claim. As stated above, a federal law may impliedly preempt state law if Congress intended federal law to occupy the field exclusively or if the state law is in actual conflict with and creates an obstacle for the federal law. See Cipollone, 505 U.S. at 545 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). Within the context of the ICCT Act, courts have relied on the "conflict" prong of implied preemption to hold that Section 10501(b) may impliedly preempt a generally applicable state-law remedy if, as applied to a particular case, that remedy has the effect of "unreasonably burdening or interfering with rail transportation." Elam, 635 F.3d at 805 (quoting Franks, 593 F.3d at 410); see CSX Transp., Inc. v. City of Sebree, 924 F.3d 276, 284 (6th Cir. 2019); Tubbs, 812 F.3d at 1145-46; PCS Phosphate Co., 559 F.3d at 220-21; Jackson, 500 F.3d at 254; Emerson, 503 F.3d at 1133. We might question whether an unreasonable burden or interference, standing alone, is sufficient to create the kind of legal "conflict" required to establish implied preemption, but the parties here agree that this is the proper test in this context. So, for purposes of this case, and for the sake of consistency with courts across the country, we will apply this standard here, without suggesting that it provides the proper test for evaluating conflict preemption in other contexts.

A party arguing for implied preemption has the burden on that issue. Mo. Pac. R.R. v. Limmer, 299 S.W.3d 78, 84 (Tex. 2009). In the context of Section 10501(b) and a claim involving a rail crossing, this means the rail carrier must provide specific evidence regarding the crossing at issue, rather than rely on assertions about the effect of grade crossings on rail transportation in general. See Elam, 635 F.3d at 813; Franks, 593 F.3d at 415. This requirement is consistent with the requirements of an "as-applied" preemption analysis, which considers the degree to which a specific scenario conflicts with requirements and objectives of the federal law at issue. Thus, for example, evidence that private crossings can affect drainage, increase track maintenance costs, and cause trains to move at slower speeds, without evidence that the particular private crossing at issue would have those effects, is insufficient to establish the kind of unreasonable burden or interference necessary to trigger implied preemption. Franks, 593 F.3d at 415; see Emerson, 503 F.3d at 1133.

Here, Horton's negligence claim does not seek a court order requiring KC Southern to alter its operations. Horton sought only economic damages, not any sort of injunctive requirement that could prevent KC Southern from maintaining the lines, crossings, services, rates, or other operations in which it was engaged at the time of Rigsby's death. Consistent with the typical purpose of a negligence claim, Horton sought only compensation for damages resulting from the accident. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Rsch. Corp., 299 S.W.3d 106, 122 (Tex. 2009) ("A negligence claim . . . is about compensating an injured party.").

As KC Southern notes, however, the effect of a successful negligence claim can far exceed the payment of compensatory damages to a particular claimant. KC Southern contends that a successful claim in this case would effectively require KC Southern to alter all of its humped crossings, or at least this particular line and crossing, and that requirement would unreasonably burden KC Southern or interfere with its operations. The trial court made no factual findings on this assertion, so we must presume the court resolved any factual disputes against preemption. See Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996). Thus, KC Southern must conclusively demonstrate its contention as a matter of law. Nevertheless, even if we assume that KC Southern could have established an unreasonable burden or interference based on changes in its tracks and operations (as opposed to the damages award), we conclude KC Southern's evidence is insufficient here.

A lack of definitive evidence regarding costs and operational methods will render evidence insufficient to establish an unreasonable burden or interference as a matter of law. In Gallo, for example, the federal district court found the evidence of unreasonable burden was insufficient when the parties offered competing visions for how a railroad could remedy a potential drainage issue, and different cost estimates for those changes, without any clear evidence that the defendant's more burdensome proposed change was required. See 372 F.Supp.3d at 481.

On the other hand, in Union Pacific Railroad Co. v. Taylor Truck Line, Inc., No. 15-0074, 2018 WL 1750516 (W.D. La. Apr. 10, 2018), the railroad offered evidence that lowering the specific crossing at issue would require extensive studies and redesign of the drainage, signal circuits, and nearby crossings; rehabilitation of the switches, adjacent tracks, and drainage culverts; and extensive construction work at the crossing and three-quarters of a mile of track on both sides, at a cost of approximately $2,000,000. Id. at *7-8. It also provided evidence that the work would require closure of the mainline track through the area for at least three to four days, impacting five road crossings. Id. The court found this evidence, in the absence of any sufficient opposing evidence, established that the change would pose an unreasonable burden and result in regulation of the railroad. Id. at *8-9.

Here, KC Southern failed to provide such definitive evidence. At trial, Horton's railroad-maintenance expert, Allen Blackwell, testified without opposition that KC Southern could address the humped crossing either by lowering the track to the level of the county road or by raising the county road to create a gradual incline up to the track. KC Southern did not present its own expert or other specific evidence of the likely cost and burden of either option. Instead, it relied on Blackwell's deposition testimony that lowering the track might cost up to $300,000. But at trial, Blackwell testified that number was inaccurate and that the project would more likely cost between $50,000 to $150,000. Horton also offered evidence that the cost of removing the hump would be comparable to KC Southern's routine-maintenance process, which, incidentally, created the hump in the first place, saving KC Southern about $100,000 that could be deducted from the cost of removing the hump.

Even if this cost were unreasonable, courts have generally concluded that increased costs alone cannot create the type of "unreasonable" burden or interference necessary to trigger implied preemption. See Barrois, 533 F.3d at 335; Adrian & Blissfield R.R. v. Village of Blissfield, 550 F.3d 533, 541 (6th Cir. 2008); City of Sebree, 924 F.3d at 284-85. KC Southern therefore also relied on Horton's expert to describe the type of construction required to lower the track to the road level. Blackwell agreed that lowering the track by thirty-two inches-the amount required for KC Southern to comply with its own adopted safety guidelines-would require "major revision to the alignment, elevation, or profile of the track." According to Blackwell, KC Southern would have to remove asphalt up to six feet away from each side of the track rails, cut and remove the rails and track panel at the crossing, resurface the crossing area with new ballast, pour new asphalt, and then install new crossing panels. The parties also agreed that KC Southern would need to extend the renovation out at least 661 feet on each side to maintain required evenness of the track. KC Southern's corporate representative testified that a culvert present under the track could make it impossible to lower the track by the full thirty-two inches. Thus, KC Southern argued this project would far exceed the scope and cost of a typical crossing rehabilitation.

On the other hand, Horton provided evidence that, despite the seemingly broad scope of work, it would take relatively little time. Blackwell testified that undercutting the track would take the same amount of time as a routine resurfacing (six to eight hours). He also specified that, to the extent work could not be completed in a day, KC Southern could run trains in the evening at a reduced speed, with subsequent speed and tonnage restrictions lasting no more than forty-eight hours. KC Southern did not contest this evidence.

All of this evidence, however, addressed only one possible means of eliminating the hump. Other testimony established that KC Southern could address the safety issue by raising the county road on each side of the crossing. Blackwell testified that, while KC Southern would not have a sufficient right-of-way to complete that project alone, it would not be unusual for the railroad to coordinate with county and state authorities to complete the work. KC Southern argued it could not alter the road alone but failed to dispute that it could do so in coordination with the county. More importantly, it offered no evidence regarding the probable costs and burdens of such a project.

We conclude that KC Southern did not meet its burden to establish that Horton's negligence claim complaining of the humped crossing would pose the "unreasonable burden or interference with rail transportation" required to trigger implied preemption under Section 10501(b). Even assuming we should consider more than the burden of the compensatory damages alone, KC Southern failed to provide definitive evidence of the cost of any of the possible solutions needed to eliminate the hazard at this specific crossing. And even if we assume, as KC Southern argues, that Horton's claim could require it to lower all the humps on all of its crossings, it provided no evidence of those costs and burdens either.

The most specific evidence KC Southern presented to establish an "unreasonable" burden involved testimony that the curvature of this section of track, which was in a hilly area, would require undercutting a longer section of track than normal and would be further complicated by the presence of a flood-control culvert in the area. KC Southern's witness testified that this would not be "a very feasible function for us to perform." But even accepting KC Southern's assertions that lowering the track would exceed the scope of a typical crossing rehabilitation, KC Southern failed to contest Horton's evidence that lowering the track would close the track for less than a day and would only require weight and speed restrictions for forty-eight hours. As to the less burdensome option of raising the road, KC Southern provided no evidence of possible delays associated with such a solution, nor did it successfully refute Horton's evidence that partnering with the local road authority for such a project would be routine.

We thus hold that KC Southern failed to meet its burden to establish that Section 10501(b) impliedly preempts Horton's humped-crossing negligence claim. And having also concluded that the section does not expressly preempt the claim, we reverse the court of appeals' judgment to the extent it was based on the trial court's contrary conclusion.

III.

Yield Sign

In addition to the complaint about the humped crossing, Horton also argued and put on evidence that KC Southern negligently caused the accident by failing to ensure that yield signs remained in place on the posts containing the crossbuck signs at the crossing. KC Southern argues that no evidence could support a finding that the lack of a yield sign proximately caused the accident. We agree.

In reviewing the legal sufficiency of evidence to support a jury verdict, we honor the rule that the jurors "are the sole judges of the credibility of the witnesses and the weight to give their testimony," and it is their role to resolve any conflicts in the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 819-21 (Tex. 2005) (citations omitted). We "credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Id. at 827. We must consider the evidence "in the light most favorable to the verdict, and indulge every reasonable inference that would support it," and we must credit any evidence that "allows of only one inference." Id. at 822 (citations omitted). We cannot substitute our judgment for the jury's. Id.

Applying these standards, we conclude that the following evidence, presented through expert testimony and supporting studies and documents, supports Horton's yield-sign theory:

- Like a yield sign, "[t]he purpose of a crossbuck sign is to tell a motorist they need to yield." In a sense, it sends the same message as a yield sign. But it is "a more specific yield sign," specifically telling drivers "there's a railroad crossing" and they need to "yield for [a] train."

- "[S]tudies have shown that [a] crossbuck [sign] alone does not give the kind of warning . . . that reminds people that there is a potential train coming."

- This is because the same type of crossbuck sign is used at both active rail crossings (those with lights, bells, or protective gates that automatically warn a driver that a train is approaching) and passive crossings (those lacking such automatic signals). As a result, drivers "tend to regard the crossbuck sign as marking there's a railroad track here" and then rely on "active signals as being the devices that control whether they should stop or go through the crossing." So, at passive crossings, drivers "sometimes think the crossbuck sign merely marks the location of the grade crossing when, in fact, it . . . also needs to [warn drivers to] yield to trains."

- Because "research . . . showed road users do not fully comprehend the message being communicated by the crossbuck" sign, and because "there is an advantage for awareness improvement with the use of a yield sign," in 2009, federal law began requiring yield signs be posted along with crossbuck signs at passive crossings.

- Studies "indicate that [adding a] yield sign . . . conveys the message that the driver has the responsibility to look for and yield to an oncoming train better than . . . the crossbuck alone."

- Adding the yield sign "adds awareness and it makes people recognize yield more than they recognize a crossbuck [sign]. So the combination together works well."

- This is particularly true for drivers who are not as familiar with the crossing. "[D]rivers who are crossing the tracks for the first time or very infrequently would be more prone to respond by slowing somewhat and more conscientious about searching for oncoming traffic." But drivers who cross the tracks "on a frequent basis" are likely to "eventually . . . revert back to [their] behavior before the yield sign was installed." Warnings "tend to be less

effective" for those who "use the same crossing over and over."

We agree with Horton that this evidence would support a finding that adding a yield sign to an already existing crossbuck sign would help alert drivers and cause them to look for an oncoming train before actually crossing an otherwise unprotected track. And so conversely, we agree that the evidence would support a finding that the absence of the yield sign made it less likely that Rigsby would have looked and stopped for the train that struck her pickup. But it is not sufficient to support the finding Horton had to obtain to prevail on the yield-sign claim: that, more likely than not, the absence of the yield sign proximately caused Rigsby to proceed into the train's path.

Other evidence, which a reasonable juror could not have ignored, established that no studies or empirical data confirm that adding a yield sign helps reduce crashes. The literature on which the experts relied provides "little empirical basis regarding the change in crash rates at crossings with either a yield or a stop sign," and "no study has been conducted on crash effect when yield signs are used." As one report explained, "[i]t is expected that this knowledge [a yield sign provides] should increase advanced searching [for oncoming trains], but how this apparent effectiveness carries over to actual locations, especially if most passive crossings were to have a yield sign, is a matter of conjecture."

A jury finding of proximate causation cannot be based on such "conjecture." Horton's expert conceded that he could not point to any study or evidence that the absence of the yield sign, "more likely than not, would have been a difference" for this accident. And he could not say that "this accident more likely than not would not have happened if the yield sign was present." Nor does any other evidence support such a finding. Horton's expert testified that, in his opinion, the addition of a yield sign more likely than not provides a more effective warning, but he based that opinion merely on the fact that the federal government recommended the addition of yield signs in 2000 and required them in 2009. This is not the type of basis that could support such an opinion, and the opinion itself was insufficient to support a finding that the absence of the yield sign more likely than not caused this particular accident.

As to this accident, the video recording confirms that Rigsby, who lived near the crossing and regularly crossed it for years up until she was hospitalized several weeks before the accident in fact did slow down as she approached the crossing, and then slowed even more, to three or three-and-a-half miles per hour, before reaching the rails. As Horton's expert confirmed, Rigsby "was cautious. She showed approach. It looked like she was intent. The purpose of those kind of signs and a warning sign is to alert that." We must conclude that no evidence supports a finding that, more likely than not, Rigsby would have approached the crossing any more cautiously or intently had the yield sign been present, or that the absence of the yield sign more likely than not caused Rigsby to drive into the train's path.

IV.

Harmful Error

Having concluded that the ICCT Act does not preempt Horton's negligence claim based on the humped crossing, but no evidence supports the negligence claim based on the missing yield sign, we must finally determine whether the trial court's submission of both negligence theories through a single broad-form negligence question constituted harmful error. KC Southern objected to the broad-form question on the ground that it would permit the jury to find negligence on an invalid liability theory, and it offered a proposed charge that included two blanks for the jury to separately determine the parties' negligence liability for the humped crossing and the missing yield sign.

The trial court overruled the objection and refused the proposed question, believing it improperly granulated a single negligence cause of action. The court of appeals-after agreeing with KC Southern that federal law preempts the humped-crossing claim and agreeing with Horton that the evidence supports the yield-sign claim-concluded that the trial court erred by submitting both theories in one question and that the error was harmful under Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000), because the court could not determine whether the jury found negligence on a valid or invalid theory. See 666 S.W.3d at 19.

We have also concluded that only one of Horton's two allegations can support the jury's negligence finding, albeit the opposite one. Thus, we too must determine whether submission of the broad-form question over KC Southern's objection resulted in harmful error. KC Southern argues it did because the question "commingle[d] valid and invalid liability theories . . . and a proper reason for the verdict cannot be ascertained from the record." Horton argues it did not because the question properly submitted Horton's single claim for negligence, leaving it to the jury to determine what acts would support that claim. We agree with KC Southern.

We held in Casteel that "when a trial court submits a single broad-form liability question incorporating multiple theories of liability, the error is harmful, and a new trial is required when the appellate court cannot determine whether the jury based its verdict on an improperly submitted invalid theory." 22 S.W.3d at 388. Horton argues Casteel does not apply here, however, because that case involved multiple, distinct "theories of liability," some of which were valid and others of which were not. But here, Horton contends, the court submitted just one liability theory-negligence. According to Horton, Casteel does not apply because "[f]ailing to maintain tracks and failing to post a yield sign are different negligent acts, not separate theories of liability." We disagree.

It is true that Casteel involved a single broad-form liability question with instructions addressing "thirteen independent grounds for liability," four of which we concluded were invalid. Id. at 387. But in holding that the error was harmful because appellate courts could not determine whether the jury based its verdict on an invalid theory, we relied on and reaffirmed our prior decision in Lancaster v. Fitch, 246 S.W. 1015 (Tex. 1923), in which "the trial court submitted a single general negligence issue with instructions regarding three distinct theories of negligence liability." Casteel, 22 S.W.3d at 389. Lancaster applied the same rule in a case in which the plaintiff "pleaded three separate acts of negligence as the proximate cause of his injury" and the trial court submitted a single negligence question. 246 S.W. at 1015-16. We held that the submission of one invalid negligence theory along with two valid theories, where it was impossible to tell which theory the jury relied on, was harmful error. Id. at 1015-17.

We have since applied Casteel's harmful-error rule in cases involving a variety of circumstances that created the same problem for the appellate courts, including the broad-form submission of multiple elements of damages, Harris County v. Smith, 96 S.W.3d 230, 231 (Tex. 2002), the inclusion of two theories within a single apportionment-of-responsibility question, Romero v. KPH Consol., Inc., 166 S.W.3d 212, 215 (Tex. 2005), and a trial court's refusal to submit necessary instructions with a broad-form question, Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 865 (Tex. 2009). Most recently, and most importantly, we specifically rejected Horton's argument in Benge v. Williams, 548 S.W.3d 466 (Tex. 2018).

At the trial in Benge, the plaintiff "argued and offered evidence that her physician was negligent both in using an inexperienced resident to assist with performing her surgery and in not disclosing the resident's level of involvement." Id. at 467-68. But the plaintiff only claimed a right to recover based on the physician's negligent use of the inexperienced resident and did "not claim a right to recover for the nondisclosure." Id. at 468. The trial court submitted a broad-form negligence question, after refusing the physician's request for an instruction that the jury should disregard the plaintiff's arguments and evidence regarding the nondisclosure, and the jury found in the plaintiff's favor. Id. at 470. We held that the court erred in refusing to submit the requested instruction, and we found that error harmful under Casteel because the jury could have found negligence based on the nondisclosure even though the plaintiff "does not assert that claim." Id. at 474. We did so even though the question the trial court submitted, "unlike the one in Casteel, did not include multiple theories, some valid and some invalid. It inquired about a single theory: negligence." Id. at 475.

To the extent Horton contends that the Casteel rule applies only when a broad-form question permits a liability finding based on a theory or ground that is legally "invalid" as opposed to, as here, a ground lacking sufficient evidence, our precedent has also rejected that argument. We have applied the rule not only when the question permits a finding based on a legally "invalid" theory, but when it permits an erroneous finding based on a ground the evidence does not support, Harris County, 96 S.W.3d at 231; Romero, 166 S.W.3d at 227-28, a ground that is "jurisdictionally barred," Tex. Comm'n on Hum. Rts. v. Morrison, 381 S.W.3d 533, 535 (Tex. 2012), and, in Benge, a claim the plaintiff simply "does not assert," 548 S.W.3d at 474. As we explained in Hawley, "[s]ubmission of an invalid theory" simply "involves '[a] trial court's error in instructing a jury to consider erroneous matters.'" 284 S.W.3d at 865 (quoting Harris County, 96 S.W.3d at 233).

Horton relies on our opinion in Dillard v. Texas Electric Cooperative, where we stated that, under broad-form submission rules, "jurors need not agree on every detail of what occurred so long as they agree on the legally relevant result. Thus, jurors may agree that a defendant failed to follow approved safety practices without deciding each reason that the defendant may have failed to do so." 157 S.W.3d 429, 434 (Tex. 2005) (citing Burk Royalty Co. v. Walls, 616 S.W.2d 911, 924 (Tex. 1981)). Indeed, we went on to say in Dillard that jurors "could have unanimously found [the defendant] negligent, even if half believed the negligent act was overloading his truck and half believed it was failing to warn oncoming traffic-acts that preceded two different collisions." Id. We read Horton's reliance on Dillard to argue that the trial court's broad-form submission of his two negligence allegations was not error at all, much less harmful under Casteel.

But Dillard involved a completely different issue: "whether the trial court abused its discretion in refusing to submit one of two different instructions on the defendants' inferential rebuttal defenses." Id. at 430. We held that the court sufficiently instructed the jury on those defenses and thus committed no error, and we made the statements on which Horton relies to explain why additional instructions would have been duplicative and unnecessary. Id. Our discussion addressed only the defendants' defenses, not the plaintiff's claims, and the statements on which Horton relies presumed that each of the acts supporting a negligence finding were themselves valid and supported by the evidence. Here, by contrast, we have concluded that the evidence does not support one of the acts on which Horton relied for a negligence finding. Jurors finding negligence may not all have to agree on the same valid and supported grounds to find negligence, but they cannot rely on invalid or unsupported grounds.

Finally, Horton argues that application of the Casteel rule in this case would undermine our strong preference for broad-form submissions, as set forth in Texas Rule of Civil Procedure 277. We think this argument goes too far. Although Rule 277 is "intended to simplify jury charges for the benefit of the jury, the parties, and the trial court," it "was certainly never intended to permit, and therefore encourage, more error in a jury charge." Romero, 166 S.W.3d at 230. As we explained when addressing this argument in Romero, Rule 277 requires that issues be submitted to a jury in broad form "whenever feasible." Id. (quoting Tex.R.Civ.P. 277). We adhere to that rule today, but "Rule 277 is not absolute," and "[s]ubmitting alternative liability standards when the governing law is unsettled might very well be a situation where broad-form submission is not feasible." Casteel, 22 S.W.3d at 390 (quoting Westgate, Ltd. v. State, 843 S.W.2d 448, 455 n.6 (Tex. 1992)).

Our holding does not overhaul the general preference for broad-form submission. Rather, it emphasizes that, despite our rules' preference for broad-form jury questions, "broad-form submission cannot be used to broaden the harmless error rule to deny a party the correct charge to which it would otherwise be entitled." Romero, 166 S.W.3d at 230. Where, as here, true doubt exists as to the validity of one underlying theory and the trial court must resolve a close call²⁰ as to whether sufficient evidence supports a separate act of negligence, submitting either separate questions or separate blanks within the same question may be helpful. Separate jury questions are not the only means to avoid a Casteel problem. In some cases, rephrasing the question or giving an instruction not to consider theories that are unpled, invalid, or lacking in evidentiary support will be sufficient.²¹ And that alternative is preferable to separate questions when it is feasible. Again, we emphasize that this holding does not undermine the general preference for broad-form submission, but rather provides additional guidance as to how courts should approach instances where broad-form submission is not feasible.

20 We note that this case does not present an issue of whether KC Southern preserved its objection to the trial court's error. KC Southern objected that there was a Casteel-type defect in the form of the negligence question because the humped-crossing theory was preempted, and the missing-yield-sign theory was not supported by the evidence. Although this objection was sufficient to make the court aware of its complaint, KC Southern also tendered an alternative charge that separated the theories.

21 See, e.g., Benge, 548 S.W.3d at 474-76 (holding it was error to deny a jury instruction not to consider an unpled negligence theory regarding failure to disclose a resident's level of involvement in surgery); Morrison, 381 S.W.3d at 535-36 (holding that it was error to deny a request to rephrase an employment discrimination liability question to specify discriminatory termination rather than a term that encompassed actions that had not been administratively exhausted); Hawley, 284 S.W.3d at 863-65 (holding it was error to deny a limiting instruction that the jury should not consider actions of a doctor who was not the hospital's agent in determining hospital liability).

Because the trial court submitted Horton's negligence claim as a broad-form question subsuming both his humped-crossing theory and his missing-yield-sign theory, we are unable to discern whether the jury found KC Southern negligent based on the yield-sign theory, which the evidence does not support. Because the question "allows a finding of liability based on evidence that cannot support recovery," Casteel's "presumption-of-harm rule must be applied." Benge, 548 S.W.3d at 475.

V.

Conclusion

We hold that the ICCT Act does not expressly preempt Horton's humped-crossing negligence claim, that KC Southern failed to bear its burden of proving that the Act impliedly preempts that claim, that the evidence does not support liability based on Horton's missing-yield-sign negligence claim, and that the trial court's submission of both negligence theories using a broad-form question constituted harmful error in this case. We thus affirm the court of appeals' judgment reversing the trial court's judgment and remanding the case to that court for a new trial.

JUSTICE BUSBY, joined by Justice Devine, Justice Blacklock, and Justice Young, concurring.

J. Brett Busby Justice

The heart of this case should be decided as a straightforward question of statutory interpretation: when both chambers of the United States Congress passed and the President signed the Interstate Commerce Commission Termination Act (ICCTA) in 1995, did they actually delegate to the Surface Transportation Board (STB) exclusive jurisdiction over humped railroad crossings, preempting state commonlaw negligence suits concerning accidents at such crossings? I join the Court's opinion holding that the answer to this question is no.

In addition to deciding this question of express preemption, United States Supreme Court precedent requires us to consider implied obstacle preemption. Under Hines v. Davidowitz and its progeny, we must analyze whether allowing the plaintiffs to bring their claim in court would stand as an "obstacle to the accomplishment and execution of the full purposes and objectives of Congress." 312 U.S. 52, 67 (1941).

Although I agree with my colleagues that the claim before us presents no such obstacle, I am concerned that this doctrine has developed in a manner that poses questions judges are neither authorized to ask under our Constitution nor able to answer in a consistent and principled manner.

As Justice Clarence Thomas has observed for two decades, "implied pre-emption doctrines that wander far from the statutory text are inconsistent with the Constitution" Wyeth v Levine, 555 U.S. 555, 583 (2009) (Thomas, J, concurring in judgment). In particular, implied obstacle preemption invites judges to imagine what the unexpressed "purposes and objectives" of Congress might have been and speculate about whether there is tension between those purposes and state law that rises to the level of an "obstacle." Such creativity seems especially misplaced when (as here) the statute includes an express preemption clause, which "necessarily contains the best evidence of Congress' pre-emptive intent." CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993).

Justice Thomas has urged the Court to abandon its "purposes and objectives" approach to implied preemption in favor of a test that asks whether state law stands in "logical contradiction" to federal law. Merck Sharp & Dohme Corp. v. Albrecht, 139 S.Ct. 1668, 1681 (2019) (Thomas, J., concurring). This test, which draws on the research of Professor Caleb Nelson,¹ commendably seeks to refocus the Court's preemption precedent on the original public meaning of the Supremacy Clause. In its lack of originalist provenance, empirical unworkability, encouragement of standards-less judicial discretion, and constitutionally illegitimate aggregation of federal power, the Supreme Court's "purposes and objectives" preemption jurisprudence bears flaws akin to those that recently led the Court to repudiate the Lemon test. See Kennedy v. Bremerton Sch. Dist., 142 S.Ct. 2407, 2427 (2022) (overruling Lemon v. Kurtzman, 403 U.S. 602 (1971)).

1 Caleb Nelson, Preemption, 86 VA. L. REV. 225 (2000).

Moreover, because ICCTA's preemption clause is coupled with a delegation of exclusive jurisdiction to the STB, administrative law principles should inform the proper preemption analysis. The presumption underlying the U.S. Supreme Court's implied obstacle preemption jurisprudence is exactly contrary to that underlying its recent federal administrative law jurisprudence-particularly the major questions doctrine and the principle that clear statutory direction is required to transfer core state power to a federal agency. Instead of the statutorily prescribed scope of an agency's powers giving rise to a presumption that Congress did not mean to delegate major questions outside that scope exclusively to the agency, implied obstacle preemption presumes that matters outside that scope are also withdrawn from other decisionmakers as necessary to fulfill Congress's "purposes and objectives."

These two approaches to federalism, the separation of powers, and statutory interpretation are irreconcilable. Because this case painfully illustrates the failures of implied obstacle preemption's "'ambitiou[s]', abstract, and ahistorical"² approach to what is one of the "most frequently used doctrine[s] of constitutional law in practice,"³ I write separately to urge the U.S. Supreme Court to reconsider Hines and its progeny.

2 Kennedy, 142 S.Ct. at 2427 (quoting Am. Legion v. Am. Humanist Ass'n, 139 S.Ct. 2067, 2087 (2019)).

3 Steven A. Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. 767, 768 (1994).

I. ICCTA does not expressly preempt ordinary state common-law claims.

ICCTA provides that "[t]he jurisdiction of the [STB] . . . is exclusive" over (1) "transportation by rail carriers" and the "remedies provided by this part [of the Act] with respect to" matters including carriers' rates, operating rules, routes, services, and facilities, and (2) "the construction, acquisition, operation, abandonment, or discontinuance of" tracks or facilities. 49 U.S.C. § 10501(b). The next sentence goes on to say that "the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law." Id.

The text and context of Section 10501(b) make clear that ordinary state common-law claims regarding rail crossing safety are not expressly preempted by this second sentence. Instead, as I explain below, state- and federal-law remedies "with respect to regulation of rail transportation" include only laws that are specifically directed toward managing or governing the aspects of rail transportation that the statute gives the STB exclusive jurisdiction to regulate. And the state and federal "remedies" Congress preempted in Section 10501(b) are those that Congress granted the STB exclusive jurisdiction to provide regarding economic and operational aspects of rail transportation.

Throughout this case, respondent KCSR has emphasized the wrong question. The central issue Congress sought to address in ICCTA generally, and within Section 10501(b) in particular, was not the scope of federal preemption of state-law claims. Rather, Congress was focused on specifying the parameters of exclusive regulatory power being delegated to an executive branch agency, and Congress provided for preemption of state and federal "remedies" to ensure that the agency's jurisdiction within the specified range of its expertise was exclusive. Thus, instead of asking whether Congress deprived state courts of the ability to address common-law negligence claims such as the ones at issue here, we should be asking whether Congress clearly delegated to the STB the exclusive authority to provide a remedy.

The answer to that question is no. Like generally applicable "state property laws and rules of civil procedure that" on their face "'have nothing to do with railroad crossings,' . . . state negligence law" typically has "effects . . . on rail operations [that] are merely incidental"; thus, ordinary negligence claims do not qualify as preempted "regulation of rail transportation." Elam v. Kan. City S. Ry., 635 F.3d 796, 813 (5th Cir. 2011) (quoting Franks Inv. Co. v. Union Pac. R.R., 593 F.3d 404, 411 (5th Cir. 2010) (en banc)).⁴ Instead, "State law[s]" that provide remedies "with respect to regulation of rail transportation" are laws- generally positive laws-that are specifically directed toward managing or governing such transportation.⁵ This statutory phrase "necessarily means something qualitatively different from laws 'with respect to rail transportation.'" Fla. E. Coast Ry. v. City of W. Palm Beach, 266 F.3d 1324, 1331 (11th Cir. 2001). An overly broad reading of Section 10501(b)'s express preemption provision would deprive the word "regulation" of independent meaning,⁶ and the Court appropriately declines to follow KCSR down that path.

4 Under this rule, the only common-law claims expressly preempted by ICCTA will typically be negligence per se claims based on statutes, regulations, or ordinances that directly regulate an aspect of rail transportation over which the STB has exclusive jurisdiction. See also Friberg v. Kan. City S. Ry., 267 F.3d 439, 444 (5th Cir. 2001). I express no view regarding whether a state court could recognize a particular common-law negligence duty so specifically tailored to rail transportation that it would qualify as preempted "regulation."

5 Elam, 635 F.3d at 805-07; Franks Inv. Co., 593 F.3d at 411; Emerson v. Kan. City S. Ry., 503 F.3d 1126, 1130-31 (10th Cir. 2007) (McConnell, J.); see also Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260-62 (2013) (observing that phrase "with respect to" limits preemptive scope to laws that directly "concern" or "involve" the matter described); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50 (1987) (explaining that "[a] common-sense view of the word 'regulates' would lead to the conclusion" that a law regulates a subject if it is "specifically directed toward that" subject).

6 Cf. Sprietsma v. Mercury Marine, 537 U.S. 51, 63 (2002) ("[T]he terms 'law' and 'regulation' used together in the pre-emption clause indicate that Congress pre-empted only positive enactments. If 'law' were read broadly so as to include the common law, it might also be interpreted to include regulations, which would render the express reference to 'regulation' in the pre-emption clause superfluous."). As in Sprietsma, the word "regulation" here must be given a meaning different from "law," though "regulation" is used somewhat differently in each statute. The statute at issue in Sprietsma generally preempts (among other things) a state or local "law or regulation" establishing boating safety standards or equipment requirements not identical to federal regulations, 46 U.S.C. § 4306, while the statute at issue here preempts "remedies provided under Federal or State law" "with respect to regulation of rail transportation." 49 U.S.C. § 10501(b).

In addition, although this section gives the STB exclusive jurisdiction to regulate certain economic and operational aspects of rail transportation and provide remedies with respect to that regulation, it does not preempt "all other law" regarding those aspects of rail transportation-a phrase Congress used elsewhere to preempt laws that would limit the STB's exclusive authority to permit railroad mergers and acquisitions.⁷ 49 U.S.C. § 11321. Instead, Section 10501(b) focuses its preemptive force more narrowly on state- and federal-law "remedies" that Congress granted the STB exclusive jurisdiction to "provid[e] under this part" of ICCTA. Here, KCSR identifies no "remedies provided under this part" that would bear on plaintiffs' common-law negligence claim regarding crossing safety, so it is not preempted.

7 See United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988) (Scalia, J.) ("A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme.").

Section 10501(b) is "unlike a typical preemption provision."⁸Rather, it is a jurisdictional provision designed to establish an exclusive zone of jurisdiction⁹ for the STB in areas within its defined range of economic and operational expertise, under which it provides parties with "remedies" that are different from those offered by other federal agencies that regulate railroad safety: the Federal Railroad Administration (FRA), Federal Transit Administration (FTA), and National Transportation Safety Board (NTSB).¹⁰ By ensuring that the various federal agencies regulating railroads stay in their proverbial lanes, Section 10501(b) is designed (for example) to prevent the FRA from setting railroad rates while preserving its authority to establish "metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations."¹¹

8 Kansas v. Garcia, 140 S.Ct. 791, 802 (2020) (discussing 8 U.S.C. § 1324a).

9 Because Section 10501(b) is a jurisdictional statute that delegates power from Congress to a federal administrative agency, we must also read it with a careful eye toward the capaciousness of the power, as we assume that Congress did not intend to "hide elephants in mouseholes." Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 468 (2001).

10 Federal administrative law emphasizes a close relationship between an agency's substantive policy expertise and the scope and nature of its authority. "When the agency has no comparative expertise in resolving a regulatory ambiguity, Congress presumably would not grant it that authority." Kisor v. Wilkie, 139 S.Ct. 2400, 2417 (2019).

11 49 C.F.R. § 273.1.

This backdrop of multiple federal agencies with different zones of jurisdiction confirms that the STB's professed expertise in the economic and non-safety operational regulation of railroads-namely "railroad rate, practice, and service issues and rail restructuring transactions, including mergers, line sales, line construction, and line abandonments"¹²-would not be implicated by suits under generally applicable tort law. The Federal Railroad Safety Act (FRSA) expressly recognizes as much, including savings clauses to clarify that state laws and causes of action relating to railroad safety are not preempted unless they are incompatible with federal rules on the subject. 49 U.S.C. § 20106(a)(2), (b)(1).

12 About STB, SURFACE TRANSP. BD., https://www.stb.gov/about-stb/ (last visited June 30, 2023).

Nothing about the claim at issue here, or common-law negligence claims in general, implicates the STB's expertise. Indeed, the STB has firmly declined to exercise jurisdiction over such cases, stating its view that common-law negligence claims involving rail crossing accidents are regulated by FRSA, not ICCTA.¹³ "[J]ust as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertation of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred." West Virginia v. EPA, 142 S.Ct. 2587, 2610 (2022) (quoting FTC v. Bunte Bros., Inc., 312 U.S. 349, 352 (1941) (Frankfurter, J.)).

13 See, e.g., Waneck, Fed Carr. Cas. P 37399 (S.T.B. May 23, 2018) (pet. for declaratory order); Waneck et al. Pet. for Declaratory Order and on Motion for Reconsideration, No. FD 36167, 2018 WL 5723286 (S.T.B. Oct. 31, 2018) (denying reconsideration). Cf. Tubbs, No. FD 35792, 2014 WL 5508153, at *4 (S.T.B. Oct. 29, 2014) (pet. for declaratory order) (holding that plaintiffs' common-law tort claims, arising from railroad's failure to provide adequate drainage on tracks that damaged adjacent property during flood, were preempted under ICCTA).

Given the STB's view, holding that ICCTA preempts plaintiffs' common-law negligence theory regarding the humped crossing would likely leave them without a forum to adjudicate that theory, effectively granting the railroad immunity from any negligence regarding the hump. "[U]nlike most administrative and legislative regulations," statelaw tort claims "necessarily perform an important remedial role." Sprietsma v. Mercury Marine, 537 U.S. 51, 64 (2002). As the Supreme Court has observed, "[i]t is difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by" conduct contrary to law. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251 (1984). In addition, such a holding would be difficult to reconcile with the FRSA savings clauses as well as the U.S. Supreme Court's longstanding view that "[t]he care of grade crossings is peculiarly within the police power of the States." Lehigh Valley R.R. Co. v. Bd. of Pub. Util. Comm'rs, 278 U.S. 24, 35 (1928).

For over half a century, our Court has adhered to the principle that "if a statute . . . deprives a person of a common law right, the statute will be strictly construed in the sense that it will not be extended beyond its plain meaning or applied to cases not clearly within its purview." Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex. 1969).¹⁴ The U.S. Supreme Court has adopted a similar presumption, holding that "[i]n order to abrogate a common-law principle, the statute must speak directly to the question addressed by the common law." United States v. Texas, 507 U.S. 529, 534 (1993) (internal quotation marks omitted). In addition, "Congress should make its intention clear and manifest if it intends to pre-empt the historic powers of the States." Will v. Mich. Dep't of State Police, 491 U.S. 58, 65 (1989) (internal quotation marks omitted). And courts "would not expect Congress to take . . . [the] extraordinary step" of "stripping state courts of jurisdiction to hear their own state claims" without a "clear statement." Atl. Richfield Co. v. Christian, 140 S.Ct. 1335, 1351 (2020).

14 Just a few months ago, we re-affirmed this principle in American National Insurance Co. v. Arce, where we refused to hold that a statutory scheme had the effect of destabilizing more than a hundred years of commonlaw precedent because the two could be read in harmony with each other. See ___S.W.3d__, 2023 WL 3134718, at *9 (Tex. Apr. 28, 2023) (No. 21-0843).

Section 10501(b) does not satisfy any of these clear-statement rules. Thus, KCSR continues to be subject to the Texas common law of torts.

In sum, the words "regulation" and "remedies" in Section 10501(b) mean that ICCTA expressly preempts statutes, ordinances, and regulations passed or promulgated by any body other than the STB or Congress that directly regulate an aspect of rail transportation safety or operations for which ICCTA provides a remedy. Because ordinary common-law tort claims like those at issue here are not included in this category, they are not expressly preempted by ICCTA's exclusive jurisdiction provision.

II. Implied obstacle preemption is inconsistent with the Supremacy Clause.

In addition to express preemption, the U.S. Supreme Court has held that federal law impliedly preempts state law in two circumstances: (1) when a "pervasive" framework of regulation supports the inference that "Congress, acting within its proper authority, has determined [that a field] must be regulated by its exclusive governance," and (2) when state law "conflict[s] with federal law," either because compliance with both "is a physical impossibility" or state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Arizona v. United States, 567 U.S. 387, 399 (2012) (internal quotation marks and citations omitted). KCSR contends that this last variety of preemption-implied obstacle preemption-also applies to plaintiffs' humped-crossing negligence claim.¹⁵

15 Implied "obstacle" preemption is the only variety of implied preemption that could possibly be implicated by this case. Congress did not intend to wholly occupy the field of railroad safety, as FRSA's savings clauses demonstrate. See 49 U.S.C. § 20106(a)-(b). In addition, it is not actually impossible to comply with both Texas common-law negligence standards and relevant federal law, as there are no federal statutes or regulations prescribing standards for humped railroad crossings.

KCSR's contention requires us to apply a body of U.S. Supreme Court jurisprudence that has been criticized as unconstrained, unworkable, and "completely unmoored from the original understanding of the Constitution." Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 N.Y.U. J.L. &LIBERTY 44, 54 (2019). The process of applying the "purposes and objectives" preemption doctrine to these facts amply illustrates why that doctrine ought to be reexamined by the Supreme Court. Instead of asking judges to engage in a purposivist analysis that relies on guesswork and innuendo and yields unpredictable results, the implied preemption inquiry could focus on whether federal and state law "are in logical contradiction." Merck, 139 S.Ct. at 1681 (Thomas, J., concurring). Only when this conflict is concrete and unavoidable, rather than merely abstract and hypothetical, would judges hold that state law is preempted by operation of the Supremacy Clause.

A. The Supremacy Clause is a non obstante provision allowing federal laws to "repeal" contradictory state laws.

The Supremacy Clause provides that our federal Constitution, laws, and treaties "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws or any State to the Contrary notwithstanding." U.S. CONST. art. VI, cl. 2. An originalist analysis reveals that this text adopts a straightforward rule: federal law repeals contradictory state law by implication.¹⁶ As Professor Caleb Nelson has explained:

16 As understood by the founding generation, "repeal" in this context refers to Congress's ability-by passing a statute or ratifying a treaty-to supersede contradictory state law. Of course, the state law is not literally removed from the statute books. Throughout my discussion, I also use repeal in this functional, non-literal sense.

Taken as a whole, the Supremacy Clause says that courts must apply all valid rules of federal law. To the extent that applying state law would keep them from doing so, the Supremacy Clause requires courts to disregard the state rule and follow the federal one. But this is the extent of the preemption it requires. Under the Supremacy Clause, any obligation to disregard state law flows entirely from the obligation to follow federal law.

To put the same point slightly differently, the Supremacy Clause's rules of applicability and priority mean that courts are always bound to apply the federal portion of "instate law." But if it is possible for courts simultaneously to follow the state portion of "in-state law," then the Supremacy Clause's demand that courts apply federal law does not prevent them from applying state law too. The constitutional test for preemption is thus the same as the

traditional test for repeal: Can state and federal law stand together, or do they establish contradictory rules?¹⁷

17 Nelson, Preemption, 86 VA. L. REV. at 252 (emphasis added).

As Professor Nelson notes, the final phrase of the Supremacy Clause-which operationalizes the superiority of federal law over state law when the two are contradictory-is a non obstante clause. Such clauses were "ubiquitous in the session laws of every state"¹⁸ in late eighteenth century America, and were used

18 Id. at 240.

to acknowledge that a statute might contradict some other laws and to instruct courts not to apply the traditional presumption against implied repeals. When a statute contained a non obstante clause, courts did not have to struggle to harmonize the statute with prior laws; they could give the statute its natural meaning and let it displace whatever law it contradicted.¹⁹

19 Id. at . See also Opinion of the Mayor's Court (August 27, 1784) in 1 THE LAW PRACTICE OF ALEXANDER HAMILTON 417 (Julius Goebel Jr., ed., 1964) (In this case litigated by Alexander Hamilton, the court applied the presumption against implied repeals to reconcile New York's Trespass Act, which allowed property owners to seek damages for trespass from those who had lived in their homes during the British occupation of New York, with the Treaty of Paris. As its opinion explains, the Trespass Act "doth not contain even the common non obstante clause, tho' it is so frequent in our statute book," and thus the "established maxim" applies: "where two laws are seemingly repugnant, and there be no clause of non obstante in the latter, they shall, if possible, have such construction, that the latter may not repeal the former by implication."); 4 M. BACON, A NEW ABRIDGEMENT OF THE LAW 639 (4th ed. 1778) ("Although two Acts of Parliament are seemingly repugnant, yet if there be no Clause of non Obstante in the latter, they shall if possible have such Construction, that the latter may not be a Repeal of the former by Implication.") (cited in PLIVA, Inc. v. Mensing, 564 U.S. 604, 622 (2011) (plurality op. of Thomas, J.)).

The use of non obstante language in the Supremacy Clause- which only speaks explicitly to the obligations of state court judges-is important because it clarifies that the natural meaning of federal statutes would "take effect automatically within each state and form part of the same body of jurisprudence as state statutes,"²⁰ thus becoming "in-state law."²¹ Absent this clarifying provision, the Framers of our federal Constitution feared that state court judges, consistent with "prevailing conceptions of the law of nations," would treat federal law as the law of a foreign sovereign and refuse to apply it.²² Nowhere was this fear more acute than in the foreign affairs context, as numerous sources from the founding era raised fears of state legislation displacing federally ratified treaties.²³

20 Nelson, Preemption, 86 VA. L. REV. at 246.

21 Evan Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 COLUM. L. REV. 1001, 1023 (1995).

22 Nelson, Preemption, 86 VA. L. REV. at 246-47. Indeed, the Framers were familiar with this problem in multiple dimensions, as they had seen the states openly defy national laws passed under the Articles of Confederation with impunity. As Alexander Hamilton put it, "[t]he measures of the union have not been executed: the delinquencies of the States have, step by step, matured themselves to an extreme, which has at length arrested all the wheels of the national government, and brought them to an awful stand." THE FEDERALIST NO. 15 (Alexander Hamilton) (Gideon ed., 2001) [hereinafter FEDERALIST].

23 See, e.g., 4 DEBATES IN THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL CONSTITUTION 188 (Jonathan Elliot 2d ed., 1836) [hereinafter ELLIOT] (reporting Governor Johnston's remarks in the North Carolina ratifying convention, including the Governor's statement that "[w]ithout this [Supremacy] clause, the whole Constitution would be a piece of blank paper. Every treaty should be the supreme law of the land; without this, any one state might involve the whole Union in war."); id. at 278-80 (reporting Gen. Charles Cotesworth Pinckney's statement at the South Carolina ratifying convention that the Supremacy Clause would prevent states from undermining treaties entered into by the federal government). See also 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1832, 696 (1833) ("[T]reaty stipulations (especially those of the treaty of peace of 1783) were deemed by the states, not as laws, but like requisitions, of mere moral obligation, and dependent upon the good will of the states for their execution .... It was probably to obviate this very difficulty, that this [Supremacy] clause was inserted in the constitution.")

Most important for our purposes, both supporters and opponents of the Supremacy Clause discussed preemption in terms of "repeal," as the extensive debate over the clause in the North Carolina ratifying convention and other contemporary fora reveals.²⁴ This framework for thinking about preemption continued to dominate in the early days of the Republic. For instance, the Judiciary Act of 1789 only gave the U.S. Supreme Court appellate jurisdiction over final judgments of state high courts "where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States," and the decision was "in favour of . . . their validity."²⁵ By the same token, the Bankruptcy Act of 1800 included a savings clause providing that "this act shall not repeal or annul, or be construed to repeal or annul the laws of any state . . . for the relief of insolvent debtors, except so far as the same may respect persons who are, or may be clearly within the purview of this act ...."²⁶

24 Opponents of the Supremacy Clause described it as "a total repeal of every act and constitution of the states" that "[t]he judges are sworn to uphold," 4 ELLIOT at 179-180 (remarks of Mr. Bloodworth), under which state laws "could be repealed entirely by those of Congress," id. at 188 (remarks of Mr. J. M'Dowall), and treaties that are "the supreme law of the land . . . may repeal the laws of different states, and render nugatory our bill of rights," id. at 215 (remarks of Mr. Lancaster). To this, Governor Johnston, a supporter of ratification, responded by clarifying that "[t]he laws made in pursuance [of the Constitution] by Congress ought to be the supreme law of the land; otherwise any one state might repeal the laws of the Union at large," and "it would be in the power of any one state to counteract the law of other states, and withdraw itself from the Union." Id. at 187-88. Consistent with the trend at the North Carolina ratifying convention, the Anti-Federalist Papers are replete with references to the Supremacy Clause as "repealing" state law. See, e.g., 221 Brutus II, N.Y. JOURNAL (Nov. 1, 1787), reprinted in 13 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 529 (John P. Kaminski & Gaspere J. Saladino eds., 1981) [hereinafter DHRC] ("It is therefore not only necessarily implied thereby [by the Supremacy Clause and the General Oath or Affirmation Clause], but positively expressed, that the different state constitutions are repealed and entirely done away, so far as they are inconsistent with this, with the laws which shall be made in pursuance thereof, or with treaties made, or which shall be made, under the authority of the United States; of what avail will the constitutions of the respective states be to preserve the rights of its citizens?"); An Old Whig VI, PHILA. INDEP. GAZETTEER (Nov. 24, 1787), reprinted in 14 DHRC 216 (1983) ("Congress, being the supreme legislatures, may annul or repeal the laws of the individual states, whenever they please."). See also Andrew S. Oldham, The Anti-Federalists: Past as Prologue, 12 N.Y.U. J.L. &LIBERTY 451, 456 (2019) ("[W]e should read the Federalists' papers together with the Anti-Federalists' papers to elucidate the original public understanding of the Constitution."). But the AntiFederalists' campaign against the Supremacy Clause "repealing" state law was not limited to publishing political propaganda. In Maryland, William Paca proposed to amend the Constitution to include a savings clause for state constitutions and bills of rights: "No Law of Congress, or Treaties, shall be effectual to repeal or abrogate the Constitutions, or Bills of Rights, of the States, or any of them, or any Part of the said Constitutions or Bills of Rights." Amendments Proposed by William Paca in the Maryland Convention, MD. J. (Apr. 29, 1788), reprinted in 17 DHRC 241 (1995).

25 Judiciary Act of 1789, ch. 20, § 25, 1 Stat 73, 85-86 (emphasis added).

26 An Act to establish a uniform System of Bankruptcy throughout the United States, ch. 19, § 61, 2 Stat 19, 36 (1800) (emphasis added).

Early American jurists-including Chief Justice Oliver

Ellsworth,²⁷ Chief Justice John Marshall,²⁸ and Justice Joseph Story²⁹- also understood the Supremacy Clause as repealing state laws that were "repugnant" to the federal Constitution, federal statutes, and treaties. In requiring actual "repugnancy" or irreconcilability between state and federal law before applying preemption, early American jurisprudence understood the Supremacy Clause's nature as a product of compromise between proponents and opponents of James Madison's failed proposal at the Philadelphia Convention for a national veto over state laws.³⁰

27 See Hamilton v. Eaton, 11 F. Cas. 336, 340 (C.C.D. N.C. 1792) (No. 5,980) (opinion of Ellsworth, Circuit Justice).

28 McCullough v. Maryland, 17 U.S. (4 Wheat.) 316, 425-26 (1819) (declaring that preemption under the Supremacy Clause meant that "[a] law, absolutely repugnant to another, as entirely repeals that other as if express terms of repeal were used.").

29 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1836, 701 ("[T]he judiciary of the United States has no general jurisdiction to declare acts of the several states void, unless they are repugnant to the constitution of the United States, notwithstanding they are repugnant to the state constitution.").

30 See 4 THE FOUNDERS CONSTITUTION 592-97 (Phillip B. Kurland & Ralph Lerner eds., 1987); compare Alison L. LaCroix, What if Madison Had Won? Imagining A Constitutional World of Legislative Supremacy, 45 IND. L. REV. 41, 50 (2011) (observing that had the negative actually succeeded, "[t]he potential scope of Congress's power in a world with the negative would have been far broader than the actual scope of Congress's power when it preempts state law"), with Thomas W. Merrill, Preemption and Institutional Choice, 102 NW. U.L. REV. 727, 735 (2008) ("[S]ince the Supremacy Clause was expressly adopted as a substitute for Madison's sweeping 'negative,' it is doubtful that the Clause was regarded as being limited to cases of mutual exclusivity or trumping. The Framers must have also contemplated some degree of displacement power.").

The "repugnancy" or irreconcilability standard is also consistent with the original understanding of the Constitution as a document that transferred sovereign rights from the states to the federal government against the backdrop of the late eighteenth century law of nations. See Anthony J. Bellia, Jr. &Bradford R. Clark, The International Law Origins of American Federalism, 120 COLUM. L. REV. 835, 878 (2020); Anthony J. Bellia, Jr. &Bradford R. Clark, The Constitutional Law of Interpretation, 98 NOTRE DAME L. REV. 519, 536 (2022). Under these legal principles, an "instrument could alienate sovereign rights and powers in two ways. It could either transfer the right or power expressly, or grant one party an express right or power that by unavoidable implication divested the other party of a corresponding right. In both cases, the clear and express terms of the instrument were to be given their ordinary and customary meaning as of the time of adoption." 98 NOTRE DAME L. REV. at 530-31. As Professors Bellia and

Clark have explained, "[t]o find preemption of state authority consistent with the background rules governing the transfer of sovereign rights, the States' exercise of a given power assigned to federal officials must be fundamentally incompatible-or irreconcilable-with its exercise by the federal government." Id. at 613 n.440 (internal quotation marks omitted).

Justice Thomas has advocated the adoption of a "logical contradiction" test that is consistent with these understandings of the Supremacy Clause's text. As he has written, "[e]vidence from the founding suggests that, under the original meaning of the Supremacy Clause, federal law pre-empts state law only if the two are in logical contradiction." Merck, 139 S.Ct. at 1681 (Thomas, J., concurring).³²

32 Consistent with the text of the Supremacy Clause, Justice Thomas's approach requires that "Federal laws 'made in Pursuance' of the Constitution must comply with two key structural limitations in the Constitution that ensure that the Federal Government does not amass too much power at the expense of the States": the enumeration of limited federal powers, and the requirement "that pre-emptive effect be given only to those federal standards and policies that are set forth in, or necessarily follow from, the statutory text that was produced through the constitutionally required bicameral and presentment procedures." Wyeth, 555 U.S. at 585-86 (Thomas, J., concurring in judgment). See also 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1831, 694 ("[I]t will not follow, that acts of the larger society [the federal government], which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies [the States], will become the supreme law of the land. They will be merely acts of usurpation, and will deserve to be treated as such.")

This approach is grounded in the Supremacy Clause's history as a non obstante clause of the type used by "[e]ighteenth-century legislatures . . . to specify the degree to which a new statute was meant to repeal older, potentially conflicting statutes in the same field." PLIVA, Inc. v. Mensing, 564 U.S. 604, 621-22 (2011) (plurality op. of Thomas, J.). As discussed above, "a non-obstante provision in a new statute acknowledged that the statute might contradict prior law and instructed courts not to apply the general presumption against implied repeals." Id. at 622 (internal citations omitted). Thus, "if we interpret the Supremacy Clause as the founding generation did, our task is straightforward. We must use the accepted method of interpretation to ascertain whether the ordinary meaning of federal and state law 'directly conflict.'" Kansas v. Garcia, 140 S.Ct. 791, 807-08 (2020) (Thomas, J., concurring). "[P]re-emptive effect is to be given to congressionally enacted laws, not to judicially divined legislative purposes." Arizona, 567 U.S. at 440 (Thomas, J., concurring in in part and dissenting in part).³³

33 Of course, Professor Nelson's and Justice Thomas's approach is not without its critiques. See, e.g., Daniel J. Meltzer, Preemption and Textualism, 112 MICH. L. REV. 1 (2013); John David Ohlendorf, Textualism and Obstacle Preemption, 47 GA. L. REV. 369 (2013). These criticisms, however, tend to go to the technical implementation of this approach without substantively critiquing its originalist bona fides, and according to at least one scholar have been overstated. See Jesse Merriam, Preemption as a Consistency Doctrine, 25 WM. & MARY BILL RTS. J. 981, 1044 (2017). More importantly, there appears to be no evidence that the "purposes and objectives" test for evaluating implied obstacle preemption has any foundation in the original meaning of the Supremacy Clause whatsoever.

When two laws are asserted to be in conflict, the "logical contradiction" test replaces the traditional recency-based rule of priority with a rule that gives priority to federal law. "Under this new rule of priority, when courts had to choose between following a valid federal law and following a state law, the federal law would prevail even if the state law had been enacted more recently." Nelson, Preemption, 86 VA. L. REV. at 250. This rule is broader than-and effectively subsumes-the Court's "narrow 'physical impossibility' standard" that Justice Thomas has criticized. Wyeth, 555 U.S. at 590 (Thomas, J., concurring in judgment).³⁴ Instead, the logical contradiction test ensures that states cannot enforce obligations on parties that compete with federal law.³⁵Thus, a federal law protecting one's right to engage in certain behaviors trumps a state law that prohibits those behaviors. Wyeth, 555 U.S. at 590 (Thomas, J., concurring in judgment).³⁶

34 As Justice Thomas has correctly noted, the overly broad sweep of "purposes and objectives" implied obstacle preemption has rendered it unnecessary for the Court to rely on its overly narrow "impossibility" preemption doctrine. Wyeth, 555 U.S. at 589-90 (Thomas, J., concurring in judgment). See also Mut. Pharm. Co. v. Bartlett, 570 U.S. 472, 488 (2013) ("Our pre-emption cases presume that an actor seeking to satisfy both his federal-and state-law obligations is not required to cease acting altogether in order to avoid liability."); PLIVA, 564 U.S. at 621 (plurality op. of Thomas, J.) ("We do not read the Supremacy Clause to permit an approach to pre-emption that renders conflict pre-emption all but meaningless. The Supremacy Clause, on its face, makes federal law 'the supreme Law of the Land' even absent an express statement by Congress.").

35 As one commentator on Justice Thomas's view of logical contradiction has pointed out, "only actual conflict leads to preemption. Imposing an obstacle to achievement of federal purposes or objectives does not create preemption unless those purposes are based in the statutory language." E. Travis Ramey, Congress Hatches the Egg: Justice Thomas's Textual Mandate Test for Preemption, 62 ALA. L. REV. 1119, 1125 (2011). "When analyzing the pre-emptive effect of federal statutes or regulations validly promulgated thereunder, evidence of pre-emptive purpose must be sought in the text and structure of the provision at issue to comply with the Constitution." Wyeth, 555 U.S. at 588 (Thomas, J., concurring in judgment) (citing Easterwood, 507 U.S. at 664 (internal quotation marks and brackets omitted)).

36 For example, Justice Thomas has explained that the "general express statutory goal" of the Motor Vehicle Safety Act, which was "to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents," did not logically contradict allowing the plaintiff's common-law tort suit to go forward in Geier v. American Honda Motor Co. See Wyeth, 555 U.S. 600 (Thomas, J., concurring in judgment) (citing Geier, 529 U.S. 888-89, 903 (2000) (Stevens, J., dissenting)). "With text that allowed state actions like the one at issue in Geier, the Court had no authority to comb through agency commentaries to find a basis for an alternative conclusion." Id. at 599-600 (citing 15 U.S.C. § 1381(k) (1988)). "Because the 'requirement' imposed by state tort liability would have actually served the stated statutory purpose, and compliance with both state and federal guidelines was possible, the action should not have been preempted." Ramey, Congress Hatches the Egg, 62 ALA. L. REV. at 1127.

B. Implied obstacle preemption is unmoored from constitutional and statutory text and damages federalism and the separation of powers.

Unfortunately, the current standard for implied obstacle preemption is far removed from the original meaning of the Supremacy Clause. By grounding the inquiry in Congress's "purposes and objectives" in passing a statute, Hines, 312 U.S. at 67, implied obstacle preemption allows courts to "improperly rely on legislative history, broad atextual notions of congressional purpose, and even congressional inaction in order to pre-empt state law." Wyeth, 555 U.S. at 594 (Thomas, J., concurring in judgment). In practice, this approach allows judges to "wad[e] into a sea of agency musings and Government litigation positions" in a search for what Congress or federal administrative agencies "may have been thinking" when relevant provisions were drafted. Williamson v. Mazda Motor of Am., Inc., 562 U.S. 323, 341 (2011) (Thomas, J., concurring in judgment). And the "impossibility of defining 'purposes' in complex statutes at such a high level of abstraction" results in the "danger of invoking obstacle preemption based on the arbitrary selection of one purpose to the exclusion of others." Pharm. Rsch. & Mfrs. of Am. v. Walsh, 538 U.S. 644, 678 (2003) (Thomas, J., concurring in judgment).

Such "freeranging speculation about what the purposes of the [law or] regulation must have been is not constitutionally proper in any case." Williamson, 562 U.S. at 343 (Thomas, J., concurring in judgment) (cleaned up). This speculation undermines federalism by overreading the Supremacy Clause's command to give preemptive effect only to the "Laws of the United States," and it erodes the separation of powers by empowering judges to act with "potentially boundless" discretion. Geier v. Am. Honda Motor Co., 529 U.S. 861, 908 (2000) (Stevens, J., dissenting).

Put simply, implied obstacle preemption is a doctrine of "freewheeling judicial inquiry"³⁷ that invites courts-including state courts-to become federal legislators, "wander[ing] far from the . . . text" of the supposedly preempting federal law. Wyeth, 555 U.S. at 583 (Thomas, J., concurring in judgment).³⁸ Not only is the "evidence courts employ to discern congressional intent" dubious, the entire exercise of courts trying to "tease out single purposes or aims of federal legislation and regulations" is fraught with unsubstantiated assumptions about lawmaking and is inherently inconsistent with the separation of powers. Catherine M. Sharkey, Against Freewheeling, Extratextual Obstacle Preemption: Is Justice Clarence Thomas the Lone Principled Federalist?, 5 N.Y.U. J.L. &LIBERTY 63, 91 (2010). By its very nature, this "judicial guesswork about broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not contained within the text of federal law"³⁹ encourages sharp, policy-based disagreements between judges that have little relation to actual statutory text-thus "undercut[ting] the principle that it is Congress rather than the courts that pre-empts state law."⁴⁰

37 Bates v. Dow Agrosciences LLC, 544 U.S. 431, 459 (2005) (Thomas, J., concurring in judgment in part and dissenting in part) (quoting Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 111 (1992) (Kennedy, J., concurring in part and concurring in judgment)).

38 Gregory M. Dickinson, An Empirical Study of Obstacle Preemption in the Supreme Court, 89 NEB. L. REV. 682, 701 (2011) ("[T]he key factor in Justice Thomas's preemption analysis is the explicitness of congressional action. Absent clear action by Congress to preempt state law, states should be presumed to retain their sovereignty. Any other approach would aggrandize the judiciary at the expense of the legislature and violate the principle of dual sovereignty enshrined in the Constitution.").

39 Garcia, 140 S.Ct. at 808 (Thomas, J., concurring) (internal quotation marks omitted).

40 Gade, 505 U.S. at 111 (Kennedy, J., concurring in part and concurring in judgment); see also Walsh, 538 U.S. at 682 (Thomas, J., concurring in judgment). Recent empirical research by Professor Jesse Merriam confirms this is the case. "The most sharply divided implied preemption cases on the Roberts Court have arisen under conflict preemption. Of the seven Roberts Court decisions [prior to 2017] finding conflict (impossibility or obstacle) preemption, four rested on razor-thin five-Justice majorities. By contrast, of the eleven cases [prior to 2017] finding express preemption, only one rested on a five-Justice majority, and that was likely a result of Justice Thomas not participating." Merriam, Preemption as a Consistency Doctrine, 25 WM. & MARY BILL RTS. J. at 1011 (footnotes omitted).

Moreover, the purposivist nature of implied obstacle preemption jurisprudence upsets the "delicate balance" of state versus federal power "mandated by the Constitution" by encouraging an overly preemptive reading of statutory text. Wyeth, 555 U.S. at 585 (Thomas, J., concurring in judgment). Empowering courts to "divine the broader purposes of the statute before [them] inevitably leads [them] to assume that Congress wanted to pursue those policies 'at all costs'-even when the text reflects a different balance." Id. at 601 (Thomas, J., concurring in judgment) (citing Geier, 529 U.S. at 904 (Stevens, J., dissenting)); Nelson, Preemption, 86 VA. L. REV. at 279-80). "As this Court has repeatedly noted, it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objectives must be the law." Wyeth, 555 U.S. at 601 (Thomas, J., concurring in judgment) (citing Norfolk So. R. Co. v. Sorrell, 549 U.S. 158, 171 (2007); Rodriguez v. United States, 480 U.S. 522, 526 (1987) (internal quotation marks omitted)). In doing so, courts distort the text of statutes and stray from the actual command of the Supremacy Clause, which gives priority to the "Laws of the United States," not "agency musings, . . . Government litigating positions," or "the unenacted hopes and dreams" of executive branch agencies. Williamson, 562 U.S. at 341, 343 (Thomas, J., concurring in judgment).

On the other side of the coin, there is a notable lack of discussion in the jurisprudence regarding why the imaginative enterprise of implied "purposes and objectives" preemption is even necessary. The search for unspoken purposes certainly seems out of place regarding statutes like ICCTA, in which Congress chose to speak directly to its "pre-emptive intent" with the "best evidence" available: an express preemption clause. Easterwood, 507 U.S. at 664. And the field, impossibility, and logical contradiction varieties of implied preemption amply guard federal law against state interference.⁴¹

41 As discussed above, the logical contradiction approach includes impossibility preemption. See supra at 21-22 and accompanying notes.

Moreover, the current doctrine of implied obstacle preemption leaves many victims in its wake, indiscriminately preventing resort to claims, defenses, and enforcement actions provided by state and local law. The inconsistent application of obstacle preemption-which, as described above, is a near inevitability given its arbitrary and atextual nature-means that "[a]ll sides of the political spectrum have suffered as a result of the incoherence. Plaintiffs have been denied rightful remedies, businesses have operated in unpredictable legal environments, and most importantly for constitutional purposes, states have been arbitrarily deprived of their regulatory authority." Merriam, Preemption as a Consistency Doctrine, 25 WM. &MARY BILL RTS. J. at 1044.

For example, broad applications of implied obstacle preemption have affected plaintiffs and defendants of all kinds-individuals, business entities, and government agencies alike, including: a recording artist denied the right to assert state-law right-of-publicity claims;⁴²a state agency stripped of its immunity defense;⁴³ a municipality left unable to fully enforce an ordinance designed to remedy hazardous waste contamination;⁴⁴ individuals denied a remedy for improper scoring of their broker qualification exams;⁴⁵ a dismissed supervisory employee blocked from pursuing tortious interference claims against a union;⁴⁶ an employer prevented from pursuing claims for breach of contract, fraud, unauthorized use of property, and unjust enrichment against a former employee who falsified his employment application;⁴⁷and ICU nurses deprived of claims under the Texas Whistleblower Act and employment discrimination laws.⁴⁸ These cases illustrate that continuing to use current implied obstacle preemption precedents when we apply one of the "most frequently used doctrine[s] of constitutional law in practice"⁴⁹ presents a substantial threat to our Constitutional system of federalism and separation of powers.⁵⁰

42 Jackson v. Roberts (In re Jackson), 972 F.3d 25, 37-42 (2d Cir. 2020).

43 Deweese v. Nat'l R.R. Passenger Corp., 590 F.3d 239, 246-47 (3d Cir. 2009).

44 Fireman's Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 947-49 (9th Cir. 2002).

45 In re Series 7 Broker Qual. Exam Scoring Litig., 548 F.3d 110, 114-15 (D.C. Cir. 2008).

46 Local 926 International Union of Operating Engineers v. Jones, 460 U.S. 669, 676-78, 684 (1983). The examples in this and the next two footnotes concern the broadest implied preemption regime in American law, which currently governs labor relations under San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245 (1959). Under this regime, the National Labor Relations Act "preempts state law even when the two only arguably conflict," in which case the National Labor Relations Board "resol[ves] . . . the legal status of the relevant conduct." Glacier Nw., Inc. v. International Brotherhood of Teamsters Local Union No. 174, 143 S.Ct. 1404, 1411 (2023).

47 Wright Elec., Inc. v. Ouellette, 686 N.W.2d 313, 322, 325 (Minn.Ct.App. 2004).

48 Castillo v. Brownsville-Valley Reg'l Med. Ctr., Inc., 421 S.W.3d 263, 272-73 (Tex. App.-Corpus Christi-Edinburg 2013, no pet.).

49 Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. at 768.

50 See Antonin Scalia, Foreword: The Importance of Structure in Constitutional Interpretation, 83 NOTRE DAME L. REV. 1417, 1418 (2008) ("The constitutional structure of the United States has two main features: (1) separation and equilibration of powers and (2) federalism. Each functions to safeguard individual liberty in isolation, but they provide even greater protection working together.").

Done right, implied preemption requires neither a "penumbral" reading of federal law, in which state-court jurisdiction over state claims is defined by the atextual whims of judges or federal administrative agencies, nor artificially narrow constructions of federal law that allow for overzealous protection of state law at all costs. Instead, it calls for a straightforward analysis of statutory text, amendment history, and structure-including applicable interpretive presumptions and clearstatement rules-to determine whether state and federal law establish irreconcilable standards that are in "logical contradiction" with each other.

III. ICCTA obstacle preemption is inconsistent with the major questions doctrine.

Because ICCTA's preemption clause is coupled together with a delegation of exclusive jurisdiction to the STB, the proper scope of implied ICCTA preemption should also be informed by relevant principles of administrative law. As explained above, the statutory interpretation question before us is not really about what state courts can do, but what Congress-which the federal Constitution vests only with specifically enumerated powers-has actually delegated exclusively to an executive branch agency: the STB. Thus, I turn next to precedent and scholarship concerning the nature and power of the federal administrative state, which sheds substantial light on whether Section 10501(b) impliedly preempts Texas common-law.

Applying current federal precedent on implied obstacle preemption in the ICCTA context makes little sense given developments in the Supreme Court's federal administrative law jurisprudence. In recent years, the Court has shown greater reticence to find legislative delegations of authority over "major questions" or matters of core state power to executive branch agencies absent "clear congressional authorization." West Virginia, 142 S.Ct. at 2609 (citing Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). But implied obstacle preemption takes the opposite view, concluding that any state-law obstacle to the "purposes and objectives" of Congress in passing a statute, including those Congress did not speak to at all, is preempted by the statute-no matter how "major" the displacement of state law.

In the case of ICCTA preemption, these conflicting positions come to a head. While federalism principles underlying the major questions doctrine counsel that Congress must "enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power," Ala. Ass'n of Realtors v. Dep't of Health &Hum. Servs., 141 S.Ct. 2485, 2489 (2021) (quoting United States Forest Serv. v. Cowpasture River Pres. Ass'n, 140 S.Ct. 1837, 1850 (2020)), current implied obstacle preemption precedent eschews statutory text and clear statements in favor of "penumbras that wax and wane." Glacier Nw., Inc. v. International Brotherhood of Teamsters Local Union No. 174, 143 S.Ct. 1404, 1417 (2023) (Thomas, J., concurring in judgment) (internal quotation marks omitted).

Here, KCSR asserts that the STB has exclusive jurisdiction to provide a remedy any time the application of state or other federal law would unreasonably burden or interfere with rail transportation. In other words, the STB has almost plenary power over rail transportation under KCSR's view of Section 10501(b), meaning that any action taken under state or other federal law that unreasonably impacts a railroad's bottom line impliedly falls within the STB's exclusive jurisdiction and is preempted by ICCTA. Because KCSR frames ICCTA's preemptive scope at such a high level of generality, adopting its position would undermine the federalism and separation of powers values that inform the nondelegation doctrine and its corollary, the major questions doctrine.⁵¹

51 In his West Virginia concurrence, Justice Gorsuch noted that the Supreme Court "has applied the major questions doctrine for the same reason it has applied other similar clear-statement rules-to ensure that the government does not inadvertently cross constitutional lines. And the constitutional lines at stake here are surely no less important than those this Court has long held sufficient to justify parallel clear-statement rules. At stake is not just a question of retroactive liability or sovereign immunity, but basic questions about self-government, equality, fair notice, federalism, and the separation of powers. The major questions doctrine seeks to protect against unintentional, oblique, or otherwise unlikely intrusions on these interests." 142 S.Ct. at 2620 (Gorsuch, J., concurring) (internal quotation marks and citations omitted).

In particular, KCSR's position should be rejected because it (1) implicates the major questions doctrine and (2) does not meet its clear-statement requirement. The Supreme Court's major questions and nondelegation cases teach us that "[e]xtraordinary grants of regulatory authority are rarely accomplished through modest words, vague terms, or subtle devices." West Virginia, 142 S.Ct. at 2609 (internal quotation marks omitted). "We presume that 'Congress intends to make major policy decisions itself, not leave those decisions to agencies.'" Id. (quoting United States Telecom Ass'n v. FCC, 855 F.3d 381, 419 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of reh'g en banc)). Thus, when a litigant argues that a statute grants an agency "sweeping" authority over matters of "economic" or "political significance," it must point to "clear congressional authorization for the power" claimed. Id. at 2608-09 (internal quotation marks omitted).

Supreme Court precedent indicates that whether an agency possesses exclusive power to regulate everything that unreasonably burdens or interferes with rail transportation qualifies as a major question, and relatedly as a question on which Congress must speak clearly if it wishes to displace core state power. Indeed, one of the earliest cases in which the Supreme Court applied what has come to be known as the major questions doctrine involved whether the STB's predecessor-the ICC-could set carriage prices for railroads. The Court observed that transferring such a "power of supreme delicacy and importance" to "any administrative body is not to be presumed or implied from any doubtful and uncertain language." ICC v. Cincinnati, N.O. &T.P.R. Co., 167 U.S. 479, 505 (1897). If Congress "had intended to grant the power to establish rates, it would have said so in unmistakable terms." Id. at 509. Because Congress "did not give [that] express power to the commission," the Court concluded "it did not intend to secure the same result indirectly ...." Id. at 511.

KCSR's view of Section 10501(b) would similarly vest the STB with a "breathtaking amount of authority." Ala. Ass'n of Realtors, 141 S.Ct. at 2489. "It is hard to see what ["remedies"] this interpretation would place outside the [STB's] reach, and [KCSR] has identified no limit in [Section 10501(b)] beyond the requirement" that the state-law claim have the effect of regulating or interfering with rail transportation. Id.

KCSR's attempt to downplay that vague and far-reaching standard by arguing that ICCTA only preempts "unreasonabl[e] interfere[nce] with its operations" fares no better than the CDC's argument that its authority under the Public Health Service Act⁵² was limited to actions that were "necessary" to curb the spread of COVID-19. Id. ⁵³ The Supreme Court rejected the CDC's reading of a statute that would vest it with authority to "mandate free grocery delivery to the homes of the sick or vulnerable," "[r]equire manufacturers to provide free computers to enable people to work from home," or "[o]rder telecommunications companies to provide free high-speed Internet service to facilitate remote work." Id. Similarly, we should reject KCSR's reading of a statute that would, for example, grant the STB exclusive jurisdiction to adjudicate contractual disputes between railroads and their energy suppliers, resolve labor disputes between railroads and their employees, or regulate the securities issued by railroads.⁵⁴

52 42 U.S.C. § 264.

53 Indeed, KCSR's argument here arguably fares even worse than the CDC's argument in Alabama Association of Realtors, as the word "necessary" actually appeared in the relevant statutory provision. In contrast, "unreasonable interference with operations," "allocat[ion] [of] capital resources," and the other phrases KCSR argues define the scope of the STB's powers under Section 10501(b) are nowhere to be found in the text of that Section. The concept of an "unreasonable burden" does appear in other parts of ICCTA, confirming that Congress deliberately chose to use a different standard in this general preemption provision. See, e.g., 49 U.S.C. §§ 10909(a)(1), 10910, 11501.

54 That these arguments are being advanced by a party other than the agency administering a particular statute makes no difference for purposes of the major questions doctrine, which seeks to define the scope of an agency's powers under that statute. Indeed, the U.S. Supreme Court's decision in West Virginia involved rejecting the arguments of the EPA, several power companies, and various states in defense of the Clean Power Plan-with all of these parties arguing for a broader reading of the EPA's powers under the Clean Air Act.

There is no doubt that a railroad with no fuel, no workers, or no access to capital markets would be facing "unreasonable interference with its operations" and vast impacts on its bottom line. But no one seriously contends that the STB actually could-or would-attempt to govern any of these things, lest it upset separate statutory schemes.⁵⁵And rightfully so, as neither the STB's expertise nor its statutory mandate actually implicates any of these potential legal disputes, even though they are related to a railroad's "operations" and its financial health.

55 For instance, allowing the STB to resolve labor disputes between railroads and their workers would undermine the statutory scheme laid out in the Railway Labor Act, 45 U.S.C. §§ 151 et seq., which is administered by the National Mediation Board, another independent federal agency. Similarly, allowing the STB to regulate the securities issued by KCSR would intrude on the Securities and Exchange Commission's authority under federal securities laws. See, e.g., 15 U.S.C. §§ 77a et seq., (Securities Act of 1933); 15 U.S.C. §§ 78a et seq. (Securities Exchange Act of 1934).

The same is true of routine, common-law negligence disputes of the type at issue here. KCSR concedes that several types of negligence claims-such as failure to sound a whistle, keep a lookout, apply brakes, or maintain a yield sign-would not be preempted. This concession highlights that there is no coherent limiting principle to KCSR's view of implied ICCTA preemption, as the impact of these claims on railroad operations is not different in kind from the plaintiffs' humped-crossing negligence claim, and we have only KCSR's unsupported assertion that they differ in degree.

KCSR's position also meets two of the three major questions doctrine "triggers" that Justice Gorsuch identified in his West Virginia concurrence. 142 S.Ct. at 2620-22. KCSR's reading of Section 10501(b) to give the STB exclusive jurisdiction over any actions that unreasonably burden or interfere with rail transportation would vest the STB with almost unlimited authority to regulate the railroad industry, boxing out all other "regulation of rail transportation"-no matter how indirect-under state and other federal laws. Thus, KCSR's interpretation of ICCTA would empower the STB to "regulate a significant portion of the American economy" from under the shield of Chevron deference.⁵⁶ Id. at 2621 (Gorsuch, J., concurring) (internal quotation marks omitted).

56 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 84344 (1984) (holding that where statute is "silent or ambiguous with respect to [a] specific issue," courts must grant deference to reasonable interpretation advanced by federal administrative agency administering that statute).

And it would do so in a manner that "intrude[s] into an area that is the particular domain of state law": the care of grade crossings. Id.; see Lehigh Valley R.R., 278 U.S. at 35. The STB's assertion of exclusive jurisdiction over ordinary common-law claims, such as the one at issue here, would not amount to an "'everyday exercise of federal power,'" as it would dramatically displace the role of state courts and state common law in an area they have traditionally governed and that falls squarely within their function and expertise. Nat'l Fed'n of Indep. Bus. v. Occupational Safety &Health Admin., 142 S.Ct. 661, 665 (2022) (quoting In re MCP No. 165, 20 F.4th 264, 272 (6th Cir. 2021) (Sutton, C.J., dissenting from denial of initial hearing en banc)); see also Ala. Ass'n of Realtors, 141 S.Ct. at 2489 (holding CDC's eviction moratorium "intrude[d] into an area that is the particular domain of state law: the landlord-tenant relationship").

KCSR's assertions to the contrary conflict with the longstanding-and constitutionally protected-norm that "the States, not the Federal Government, are the traditional source of authority over safety, health, and public welfare. In the context of a vast attempt to assume these police powers by the Federal Government, Congress must speak unequivocally." In re MCP No. 165, 20 F.4th at 273 (Sutton, C.J., dissenting from initial hearing en banc). For these reasons, KCSR's position would yield a significant expansion in the powers of the federal administrative state with severe consequences for federalism and the separation of powers.

As the dissent in the court of appeals correctly pointed out, the importance of this issue is especially apparent in Texas. 666 S.W.3d 1, 19 (Tex. App.-Dallas 2021) (Carlyle, J., dissenting). According to preliminary data provided by the FRA, Texas led the country in highway-rail grade crossing collisions in 2022-with 242 of the country's 2,193 collisions happening in our state.⁵⁷ We also had the most injuries of any state (76 out of 803 nationally), and reported the second-largest number of fatalities (31 out of 276 nationally).⁵⁸ Texas also has the most miles of freight railroad in the United States, with rail transportation directly impacting almost 18,000 jobs in the state and 0.5 percent of our state's economy.⁵⁹ Making state law inapplicable to all this activity would have substantial consequences for Texas's sovereignty and economy.

57 See Collisions & Fatalities by State, Highway-Rail Grade Crossing Collisions-Top 25 States, OPERATION LIFESAVER (updated June 19, 2023), https://oli.org/track-statistics/collisions-fatalities-state (last visited June 30, 2023).

58 Id.

59 Texas Rail Plan Executive Summary, TEX. DEP'T OF TRANSP (Dec. 2019), https://ftp.dot.state.tx.us/pub/txdot-info/rail/texas-rail-plan-executive-summary.pdf.

In sum, the "sheer scope" of the STB's jurisdiction under KCSR's position invokes the major questions doctrine, as it would vest the STB with a "breathtaking amount of authority," Ala. Ass'n of Realtors, 141 S.Ct. at 2489, to assert exclusive jurisdiction over anything that could be viewed as unreasonably burdening rail transportation. As the Supreme Court has held, such sweeping administrative power requires clear congressional authorization. West Virginia, 142 S.Ct. at 2614.

Turning to the doctrine's second step (its clear-statement requirement), ICCTA expressly grants the STB exclusive jurisdiction only over transportation by rail carriers, remedies with respect to specified carrier actions, and uses of railroad facilities. See 49 U.S.C. § 10501(b). Yet KCSR asks us to implicitly delegate more power to the STB through an ancillary preemption provision that does not directly address the nature or scope of its exclusive jurisdiction and that we have held is inapplicable to this case by its own terms. And KCSR does so despite the FRSA provision saving state laws and suits regarding railroad safety as well as the STB's own view that it has no such jurisdiction. This "oblique" approach to jurisdiction is insufficient to satisfy the major questions doctrine. West Virginia, 142 S.Ct. at 2609. For this additional reason, I disagree with KCSR that any action taken under state or other federal law that unreasonably burdens or interferes with rail transportation impliedly falls within the STB's exclusive jurisdiction and is preempted by ICCTA.

IV. ICCTA obstacle preemption is inconsistently applied and unworkable in practice.

Finally, ICCTA obstacle preemption analysis is fundamentally broken and unworkable, as the deep split among lower courts makes clear. Rather than asking judges to evaluate structural relationships between state and federal law, obstacle preemption asks judges to do nothing short of reading legislators' minds. That enterprise is foreign to the judicial role, which requires us to read text in context-not tea leaves, tarot cards, or the unspoken thoughts, feelings, and trepidations of individual legislators.

Arguments for ICCTA obstacle preemption of state common-law claims often turn on technical, fact-intensive disputes that require courts to decide when the aggregate effects of state tort suits generate an "unreasonable" burden on rail transportation. This approach gives courts almost boundless judicial discretion while placing a thumb on the scale in favor of preemption, as it enables railroads to argue that almost anything has some "effect" on their profits. See Hall v. United States, 371 F.3d 969, 977 (7th Cir. 2004) (Easterbrook, J., dissenting) ("Effects are ubiquitous. A koala's choice among tasty eucalyptus leaves in Australia could change the weather in Alaska."). In addition, some circuits finding ICCTA obstacle preemption rely on the same sort of speculation about hypothetical future consequences that the Supreme Court has rejected in the FDA preemption context.⁶⁰

60 Compare Union Pac. R.R. Co. v. Chi. Transit Auth., 647 F.3d 675, 681 (7th Cir. 2011) (concluding that Chicago Transit Authority's attempted condemnation of property owned by Union Pacific was impliedly preempted because "[e]ven if the property was not being used and Union Pacific had no immediate plans to use this property, a taking of this property would still prevent Union Pacific from using it for railroad transportation in the future"), with Merck, 139 S.Ct. at 1682-83 (Thomas, J., concurring) ("Merck's primary argument, based on various agency communications, is that the FDA would have rejected a hypothetical labeling change .... But . . . hypothetical future rejections [do not] constitute pre-emptive 'Laws' under the Supremacy Clause.").

At its core, the current obstacle preemption approach includes no meaningful limits other than a judge's willingness to ask what the impact of a legal claim on a railroad might be-which in turn requires a review of abstract congressional "purposes." The resulting jurisprudence has been predictably bumpy, as the Court summarizes in Part II.C. of today's opinion. For example, while some circuits have been willing to reject obstacle preemption when particularized evidence of an unreasonable burden is lacking,⁶¹ others have simply declared that state-law claims would impact construction or maintenance of a rail line and are therefore preempted.⁶²

61 See Franks, 593 F.3d at 414-15 (holding "state law actions can be preempted as applied if they have the effect of unreasonably burdening or interfering with rail transportation," but ICCTA did not impliedly preempt state-law action for use of private railroad crossings because testimony was not specific to crossings at issue); Adrian & Blissfield R.R. Co. v. Vill. of Blissfield, 550 F.3d 533, 541-42 (6th Cir. 2008) (holding Michigan statute requiring railroads to construct, or compensate municipalities for constructing, sidewalks across railway crossings was not impliedly preempted because it was not "unreasonably burdensome and d[id] not discriminate against railroads" even though it might prevent them from maximizing profits); Emerson, 503 F.3d at 1133-34 (holding no preemption of state-law tort claims for railroad's failure to dispose of old railroad ties properly or maintain vegetation along right-of-way because record did not clearly address how railroad would fix problem).

62 See Tubbs v. Surface Transp. Bd., 812 F.3d 1141, 1145-46 (8th Cir. 2015) (concluding common-law negligence suit would "subject construction of elevated railroad embankments to state regulation . . . via negligence"); Chi. Transit Auth., 647 F.3d at 681; cf. Edwards v. CSX Transp., Inc., 983 F.3d 112, 122-23 (4th Cir. 2020) (holding common-law tort claims seeking damages for flood-related losses caused by railroad's unwillingness to allow sandbagging along right-of-way were expressly preempted as "direct attempts to 'regulate' railroading").

This complexity and inconsistency also exists within circuits. Compare, e.g., Adrian & Blissfield R.R. Co. v. Village of Blissfield, 550 F.3d 533, 541-42 (6th Cir. 2008) (holding Michigan statute requiring railroads to construct, or compensate municipalities for construction of, sidewalks across railway crossings was not impliedly preempted by ICCTA) with CSX Transp., Inc. v. City of Sebree, 924 F.3d 276, 283-84 (6th Cir. 2019) (holding municipal ordinance requiring railroad to obtain city council approval before changing grade at any crossing was impliedly preempted because it was not "settled and definite enough to avoid open-ended delays" and forced railroad to use certain maintenance methods to correct fouled ballast). Under the plain text of ICCTA, there is no discernible difference between these forms of "regulation," and it is hard to see how requiring a railroad to build sidewalks at crossings is not in "logical contradiction" to ICCTA's statutory scheme while requiring it to use certain maintenance methods at crossings is. In a legal regime this chaotic, nobody wins.

V. Plaintiffs' claims against KCSR are not impliedly preempted by ICCTA.

Because implied obstacle preemption of any state law that unreasonably burdens rail transportation is unworkable and inconsistent with the Supremacy Clause and the major questions doctrine, I conclude by explaining how an ICCTA implied preemption analysis should proceed consistent with those principles. Because there is no "direct conflict"⁶³ or "logical contradiction"⁶⁴ between plaintiffs' common-law tort claims and ICCTA's grant of exclusive jurisdiction to the STB under Section 10501(b), their claims should not be impliedly preempted.

63 Wyeth, 555 U.S. at 590 (Thomas, J., concurring in judgment).

64 Merck, 139 S.Ct. at 1681 (Thomas, J., concurring).

Allowing plaintiffs' claims to proceed in state court does not contradict ICCTA's statutory scheme, which centralizes and simplifies the economic and operational regulation of railroads without intruding on state regulation of railroad safety allowed by FRSA. By proceeding with their state-court suit, plaintiffs are not seeking to prevent KCSR from engaging in conduct that federal law expressly protects. See Wyeth, 555 U.S. at 590 (Thomas, J., concurring in judgment). And as noted above, neither the STB-which has no expertise in railroad safety-nor any other federal agency has promulgated standards governing humped crossings. Instead, FRSA's savings clauses and a century of jurisprudence demonstrate that railroad safety is governed by a regime of cooperative federalism, not top-down federal uniformity as with the economic regulation of railroads (particularly mergers and acquisitions). Moreover, as the dissenting justice in the court of appeals pointed out, Congress expressly delegated relevant duties to the states in 2015, requiring them to develop state-specific safety plans for highway-rail grade crossings.⁶⁵

65 666 S.W.3d at 21 n.5 (Carlyle, J., dissenting) (citing Fixing America's Surface Transportation Act, Pub. L. 114-94, § 11401, 129 Stat 1312, 1679-81 (2015)).

By using the logical contradiction test to review the textual details of federal and state law regulating railroad crossings, as well as KCSR's legal obligations to both sets of sovereigns, a factually intensive ICCTA obstacle preemption inquiry could be avoided. But regardless of which implied preemption test is used, KCSR's implied preemption argument is wholly unsatisfying. KCSR maintains that if this commonlaw negligence suit is allowed, it will face inconsistent legal liabilities in various courtrooms around the state-and the costs of this legal uncertainty, anticipatory compliance measures, and possibly a few unfavorable verdicts in future cases will aggregate into a substantial sum. Perhaps. But even if the STB decided at some point to regulate humped crossings under the jurisdiction KCSR asserts it has (despite not doing so in the last 28 years), it is difficult to see how giving the five-member STB exclusive jurisdiction over thousands of routine, factintensive claims of common-law negligence at rail crossings would make the legal picture any more consistent for KCSR or, for that matter, any cheaper.

In short, because there is no textual evidence of a "direct conflict" or a "logical contradiction" between KCSR's obligations under state and federal law, as well as ample evidence that Congress had no desire to establish such a conflict, ICCTA does not impliedly preempt plaintiffs' humped-crossing negligence claim according to the original public meaning of the Supremacy Clause.

CONCLUSION

In FEDERALIST 51, James Madison laid out the nature and purpose of our federal constitutional structure:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.⁶⁶

Commenting on this passage, Justice Antonin Scalia observed that "[t]hose who seek to protect individual liberty ignore threats to this constitutional structure at their peril."⁶⁷

66 FEDERALIST NO. 51 (James Madison).

67 Scalia, Foreword: The Importance of Structure in Constitutional Interpretation, 83 NOTRE DAME L. REV. at 1418. See also Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting) ("The Framers of the Federal Constitution . . . viewed the principle of separation of powers as the absolutely central guarantee of a just Government .... Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.")