                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-1116

N ORFOLK S OUTHERN R AILWAY C OMPANY,

                                               Plaintiff-Appellant,
                                 v.


C HARLES E. B OX and the other Commissioners
of the Illinois Commerce Commission,

                                            Defendants-Appellees.


        Appeal from the United States District Court for the
          Northern District of Illinois, Eastern Division.
              No. 06 C 641—Virginia M. Kendall, Judge.



   A RGUED D ECEMBER 8, 2008—D ECIDED F EBRUARY 11, 2009




   Before E ASTERBROOK, Chief Judge, and B AUER and
S YKES, Circuit Judges.
  E ASTERBROOK, Chief Judge. Illinois requires rail switching
yards built or substantially renovated after February 2005
to include walkways, parallel to each track, for persons
who work there. 625 ILCS 5/18c–7401.1; 92 Ill. Admin.
2                                                No. 08-1116

Code §1546.10 et seq. Norfolk Southern Railway con-
tends that federal law supersedes this requirement. A
federal regulation “covering the subject matter of the
State requirement” preempts it. 49 U.S.C. §20106. And
even if no federal regulation covers the subject, states
are forbidden to adopt laws or regulations that conflict
with or prevent achievement of federal objectives. See
CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993).
The district court determined that the national govern-
ment has not adopted any regulation “covering the
subject matter” of paths adjoining railroad tracks. 2007
U.S. Dist. L EXIS 23879 (N.D. Ill. Mar. 30, 2007). Then, after
a bench trial, the court found that Illinois’s requirements
do not conflict with any federal objective. 2007 U.S. Dist.
L EXIS 92367 (N.D. Ill. Dec. 17, 2007). The court entered
judgment for the state, and the railroad has appealed.
  Several states have laws or regulations requiring walk-
ways in rail switching yards. Both state and federal courts
are divided on the question whether these rules are
compatible with federal law. Compare Southern Pacific
Transportation Co. v. California Public Utilities Commission,
820 F.2d 1111 (9th Cir. 1987) (California rules valid),
Elston v. Union Pacific R.R., 74 P.3d 478 (Colo. App. 2003)
(Colorado rules valid), and CSX Transportation, Inc. v.
Miller, 159 Md. App. 123, 858 A.2d 1025 (2004) (Maryland
rules valid), with Missouri Pacific R.R. v. Texas Railroad
Commission, 948 F.2d 179 (5th Cir. 1991) (Texas rules
preempted), and Black v. Seaboard System R.R., 487 N.E.2d
468 (Ind. App. 1986) (Indiana rules preempted). These
decisions start, as do we, with this federal law:
No. 08-1116                                                3

   Laws, regulations, and orders related to railroad
   safety and laws, regulations, and orders related
   to railroad security shall be nationally uniform to
   the extent practicable. A State may adopt or con-
   tinue in force a law, regulation, or order related to
   railroad safety or security until the Secretary of
   Transportation (with respect to railroad safety
   matters), or the Secretary of Homeland Security
   (with respect to railroad security matters), pre-
   scribes a regulation or issues an order covering
   the subject matter of the State requirement. A State
   may adopt or continue in force an additional or
   more stringent law, regulation, or order related to
   railroad safety or security when the law, regula-
   tion, or order—
       (1) is necessary to eliminate or reduce an essen-
       tially local safety or security hazard;
       (2) is not incompatible with a law, regulation,
       or order of the United States Government; and
       (3) does not unreasonably burden interstate
       commerce.
49 U.S.C. §20106 (recodified from 45 U.S.C. §434 in 1994
and amended in 2002). Norfolk Southern contends that
federal regulations already cover the subject of walkways,
thus preempting the state rules (for Illinois does not
contend that they may be sustained under the “essentially
local . . . hazard” proviso).
  The major problem with the railroad’s position is that
no federal regulation deals with walkways. Railroads are
4                                              No. 08-1116

free to install them, or not, as they see fit. And if rail-
roads may choose whether to have walkways, how then
could it be said that there is a federal regulation that
forbids states from acting? Norfolk Southern’s answer
is that federal regulations do specify how rail lines must
be built. See 49 C.F.R. §213.103. The railroad must
prepare a roadbed (or subgrade) of compacted earth. A
layer of sub-ballast, made of crushed stone, goes on top
of the roadbed. Then a section of sloped ballast,
made from slightly smaller crushed stone, goes on top of
the sub-ballast. The crossties and rails are laid on the
ballast, which transmits the load to the roadbed while
allowing water to drain through without turning the
roadbed to mud. Federal rules set a maximum slope
and minimum size of the ballast. See 49 C.F.R. §§ 213.1
to 213.241 (four parts covering track safety standards).
None of these rules deals with walkways, but Norfolk
Southern maintains that they “cover” the subject because
any walkway is bound to affect the slope of the ballast,
its drainage properties, or both.
  This understanding of what it means for a federal
regulation to “cover” a subject would make §20106’s
second sentence internally contradictory. Here is that
sentence again: “A State may adopt or continue in force
a law, regulation, or order related to railroad safety or
security until the Secretary of Transportation (with
respect to railroad safety matters), or the Secretary of
Homeland Security (with respect to railroad security
matters), prescribes a regulation or issues an order cover-
ing the subject matter of the State requirement.” The
sentence deals with state laws and regulations that are
No. 08-1116                                                5

“related to railroad safety and security” and provides
that they are preempted if there is a federal regulation
“covering the subject matter of the State requirement.”
Norfolk Southern observes that many federal regulations
deal with railroad safety. It necessarily follows, from
the Railway’s perspective, that any state regulation
“related to railroad safety” must be “covered” by a
federal regulation. But then the sentence we have
quoted is self-defeating: Instead of providing a division
between state and federal spheres (in which the state
rule prevails unless a federal rule covers the topic), the
sentence would effectively read: “All state laws and
regulations related to railroad safety and security are
preempted.” That is not, however, what the actual sen-
tence says. The structure of the statute’s second sen-
tence makes sense only if the category of “covering”
federal regulations is a subset of all topics related to
railroad safety and security. And that is how the
Supreme Court has understood the word “cover”, giving
it a relatively narrow scope compared with all safety-
related issues. Easterwood, 507 U.S. at 664–65. The rules
for roadbed construction and maintenance do not
“cover” the subject of adjacent walkways.
  Norfolk Southern relies on a policy statement as well
as the roadbed regulations. In 1978 the Federal Railroad
Administration told railroads to ignore any regulations
that the Occupational Safety and Health Administration
had prescribed for walkways, because walkways in
railroad yards “are so much a part of the operating envi-
ronment that they must be regulated by the agency with
the primary responsibility for railroad safety.” 43 Fed. Reg.
6                                              No. 08-1116

10,587 (1978). This does not sound like a statement that
the regulations for roadbeds, ballast, and drainage
already deal with the topic; the safety of workers on
walkways—whether they are too steep or slippery,
whether the walkways are too close to the rails and
create a risk of workers being struck by moving trains,
and so on—is distinct from questions about stability and
drainage of tracks. The 1978 declaration suggests that
the FRA contemplated issuing rules about walkways, but
in the ensuing 30 years it has not done so. To the
contrary, it has left in place a decision taken in 1977
that federal walkway rules should not be adopted. In 1976
the FRA had asked for comments on the question
whether it should require walkways adjacent to the tracks
on trestles and bridges. 41 Fed. Reg. 50,302 (1976). After
receiving comments the FRA decided not to act, ex-
plaining that, “if an employee safety problem does exist
because of the lack of walkways in a particular area or
on a particular structure, regulation by a State agency
that is in a better position to assess the local need is
the more appropriate response.” 42 Fed. Reg. 22,184–85
(1977). Illinois took the FRA at its word.
  On to the question whether Illinois’s system conflicts
with federal rules or objectives. Illinois allows the rail-
roads considerable discretion over the size, placement,
and materials of the walkways. They may be made
from concrete, asphalt, wood, or gravel. All that the
state requires is that they be non-slippery, at least two
feet wide, and slope no more than 1 inch of elevation
change for 8 inches of width or length. Norfolk Southern
says that wooden walkways are impractical and that
No. 08-1116                                                  7

impervious materials (concrete or asphalt) would direct
rainwater and snowmelt toward the tracks and over-
whelm their drainage-control systems, so gravel is the
only feasible material. At the bench trial, two experts
testified for Norfolk Southern that even gravel walkways
would cause drainage problems. The district judge found
otherwise; unless that finding is clearly erroneous, the
Railway must lose.
  Jeffrey McCracken, Norfolk Southern’s Assistant Vice
President of Maintenance, was its principal expert.
McCracken testified that the tracks in switching yards are
located so that their centerlines are 14 feet apart. Ballast
is flat at the top (supporting the crossties and rails) and
slopes of 1:2 rise over run at the side, down to the sub-
ballast. Only 4½ feet separate the flat areas at the top of the
ballast, so the 1:2 side slope means that there is a V-shaped
area between each track. Flattening that area by adding
gravel to form a walkway there would interfere with
drainage, McCracken testified, and thus imperil the tracks’
stability by increasing the risk that mud would form—for
even though Norfolk Southern constructs a drainage
system of pipes and culverts under each rail yard, to
improve on natural drainage, more gravel between the
tracks would cover the inlets of this drainage system
and hamper its effectiveness.
  McCracken’s testimony may well be sound, but the
district judge did not believe it. She gave two reasons.
First, the record contains photographs of three of
Norfolk Southern’s switching yards. None of the photos
shows a V-shaped depression between adjacent tracks.
8                                               No. 08-1116

They show, instead, a shallow slope—less than the 1:8
required by Illinois law, so the Railway may already be
in compliance. If the Railway operates its yards with
shallow slopes, the judge observed, then it is hard to
see how the state’s requirements will cause safety prob-
lems. McCracken responded that the yards depicted in
the photos are abnormal and experience drainage prob-
lems, but neither he nor the Railway produced photo-
graphs of yards with the V-shaped depression that he
described, and neither McCracken nor any other witness
produced details about the supposed drainage problems
at the three depicted yards. The judge concluded that,
whatever McCracken’s design preferences may be, a
shallow topography satisfying the Illinois rules has not
caused demonstrable drainage or safety problems.
  The judge’s second reason was an inference from
silence. Some railroads have built walkways voluntarily
and others have built them under the compulsion of
state regulation. California’s rules have been in force for
more than 20 years. What has happened in the places
where walkways adjoin the tracks? Have these tracks
required extra maintenance because of drainage prob-
lems? Have trains derailed, or been subject to speed
limitations, because of stability problems traceable to
walkways? Many thousands of miles of track must have
been affected. (Norfolk Southern alone has more than
300 miles of track in its Illinois switchyards.) This facili-
tates statistical analysis that could identify even a small
effect per mile. The judge asked McCracken and the
other expert whether they had analyzed the experience of
railroads that have walkways adjacent to their track. They
No. 08-1116                                                  9

replied that they had not. The judge asked whether
they knew about any published literature on the ques-
tion; they replied that they did not. We asked the same
question of the Railway’s appellate counsel, who likewise
responded that he did not know of any analysis of the
effects of California’s law, of the laws in Colorado and
other states, or of walkways voluntarily constructed
elsewhere. (Nor did counsel contend that other states’
regulations differ in any material way from Illinois’s,
preventing a useful comparison.)
  That’s a telling omission. In Missouri Pacific the district
judge predicted that enforcement of Texas’s rules
would adversely affect drainage and thus jeopardize
railroad safety; the fifth circuit held that the finding was
not clearly erroneous, and the upshot was a declaration
that the Texas requirement was preempted. One can do
only so much with projections. Talk is cheap; when it
is possible to test whether a prediction has come true,
then a test is essential. See Bechtel v. FCC, 10 F.3d 875
(D.C. Cir. 1993). Norfolk Southern did not use the oppor-
tunity to put its assessment to a test. Because nothing in
this record (or any published literature we could find)
suggests that the walkway regulations of other states
have imperiled rail safety, or even affected railroads’ costs
of maintaining a constant level of safety, the district court’s
findings of fact are not clearly erroneous. And, given
those findings, the state is entitled to enforce its walk-
way requirement.
  According to Norfolk Southern, it is physically impossi-
ble to comply with the state’s rules for some tracks in
10                                               No. 08-1116

some yards. It gives as an example tracks constructed at
different heights (tracks for through trains may be two
or three feet higher in elevation than adjacent switching
tracks), which make it impossible to satisfy the state’s
1:8 limit on walkway slope. How this presents a question
of federal law is unclear. For its part Illinois insists that
the Railway is overstating the problem and that the
impossible is never required. For adjacent tracks at dif-
ferent elevations, the state says, it will be satisfied with a
walkway on one side of each track, something that can
be done even though there isn’t room to build between
the tracks a high walkway for the higher track and a
low walkway for the lower track. The Railway suspects
that its definition of “impossibility” will turn out to be
different from the state’s. But federal courts do not issue
advisory opinions. Norfolk Southern must try to work
these details out with the state commission. Any order
that presents a question of federal law can be reviewed
once a concrete dispute has ripened.
                                                   A FFIRMED




                            2-11-09
