Sen. Cruz, Rep. Graves Lead Coalition Calling on Biden Admin to Allow LNG By Rail

Letter

Dear Deputy Administrator Brown:

We write to express concerns with the Pipeline and Hazardous Materials Safety Administration's
("PHMSA") final rule suspending the authorization to transport liquefied natural gas ("LNG") by
rail tank car ("LNG by rail rule").1 This suspension, which is the latest attack in the Biden
administration's war on American energy, calls into question PHMSA's commitment to its safety
mission, PHMSA's role in promoting the administration's extreme green policies, and whether
PHMSA will ever reasonably allow for the movement of LNG by rail. We ask you to reverse
this misstep or, at a minimum, ensure rules going forward focus on PHMSA's safety mission and
strongly consider cost-benefit analysis.

PHMSA Must Focus on Safety, Including Evidence that LNG Can Move Safely by Rail

PHMSA is a safety agency, not an environmental agency, and is responsible for regulating the
safe transportation of hazardous materials.2 Given its safety mission, the question PHMSA must
consider is not whether LNG can be moved safely in tank cars by rail, but rather what restrictions
are reasonable and justified? After all, Transport Canada authorizes LNG transportation by rail
tank car,3 and LNG has "been transported by marine vessel and truck for decades."4

When issuing the LNG by rail rule in 2020, PHMSA leveraged the experience of safely moving
many flammable commodities by rail and moving LNG by other modes. Shippers have safely
offered, and carriers have safely transported, other flammable cryogenic liquids in similar tank
cars for years without fatalities or serious injuries.5 The LNG by rail rule already prioritizes
safety by requiring a new and especially safe tank car design, the DOT-113C120W9 ("LNG tank
car"). This car is "enhanced with an outer tank that is thicker and made of steel with a greater
puncture resistance to provide an added measure of safety and crashworthiness."6 From a safety
perspective, it is absurd to remove these rail tank cars as an approved alternative to shipments of

1 88 Fed. Reg. 60356 (Sept. 1, 2023).
2 49 U.S.C. § 108(b).
3 Containers for Transport of Dangerous Goods by Rail, Section 8.6.3.4, Transport Canada,
https://tc.canada.ca/en/dangerous-goods/publications/containers-transport-dangerous-goods-rail-transport-canadastandard.
4 National Academies of Sciences, Engineering, and Medicine, Preparing for LNG by Rail Tank Car: A Readiness Review, at vii (2022).
5 85 Fed. Reg. 44994, 44996 (July 24, 2020).
6 Id.

Deputy Administrator Brown
October 25, 2023
Page 2 of 6

LNG by truck. As PHMSA's own data shows, movement of hazardous materials by highway is
inherently less safe for the public.7

In comments on the suspension proposal, twenty-five State Attorneys General raised serious
concerns that PHMSA overstepped its authority by attempting to deter natural gas extraction,
production, or consumption.8 In justifying the suspension when issued, PHMSA doubles-down
on supposed environmental concerns, rather than safety issues, by articulating the "proposition
that new oil and gas production activity . . . could be a reasonably foreseeable consequence of
authorizing new takeaway capacity [a]s consistent with its obligations under [the National
Environmental Policy Act]."9 By this reasoning, it seems PHMSA would always oppose LNG
by rail in an ultra vires effort to deter oil and gas production, even in the companion safety
rulemaking (RIN 2137-AF24)10 and no matter how "thorough" the safety protections in any
relevant Hazardous Materials Regulations ("HMR").11 In sum, PHMSA is improperly embracing green activism over its safety mandate and seems intent on continuing to do so.

The Biden Administration Intentionally Deters Investment in American Energy

PHMSA's suspension of the LNG by rail rule is part of a larger attack on domestic fossil fuel
production that willfully ignores the attendant harms to consumers and national security.12 This
effort comes from the highest level of the administration, as President Biden specifically targeted
PHMSA's LNG by rail rule through an alarmist, anti-fossil fuel executive order purporting ""to
Tackle the Climate Crisis."13 After President Biden explicitly targeted the LNG by rail rule,
PHMSA issued a proposal to suspend the LNG by rail rule later that year. 14

7 DOT, PHMSA, Incident Statistics, (last updated May 27, 2023), https://www.phmsa.dot.gov/hazmat-programmanagement-data-and-statistics/data-operations/incident-statistics.
8 Attorney General Jeff Landry et al., Comment Letter on Proposed Suspension of HMR Amendments Authorizing Transportation of Liquefied Natural Gas by Rail (Feb. 28, 2022), at 8-9,
https://www.regulations.gov/comment/PHMSA-2021-0058-7063. See also similar concerns raised by members of the House of Representatives, Committee on Transportation and Infrastructure, Comment Letter on Proposed Suspension of HMR Amendments Authorizing Transportation of Liquefied Natural Gas by Rail (Dec. 22, 2021), https://www.regulations.gov/comment/PHMSA-2021-0058-6364.
9 88 Fed. Reg. at 60365.
10 DOT, PHMSA, Hazardous Materials: Improving the Safety of Transporting Liquefied Natural Gas, (Apr. 2022), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202104&RIN=2137-AF54.
11 88 Fed. Reg. at 60357.
12 See, e.g., Letter from Sens. Cruz et al. to Ann Carlson, National Highway Traffic Safety Administration (May 1, 2023), https://www.commerce.senate.gov/services/files/17CBD607-0308-4D2C-AE5B-3167F0FFCF82 (requesting the agency refrain from imposing radical, unlawful fuel economy standards); Letter from Sen. Cruz to Alexander Hoehn-Saric, U.S. Consumer Product Safety Commission (Jan. 25, 2023), https://www.cruz.senate.gov/imo/media/doc/gas_stove_letter_to_cpsc_chairman_hoehn-saric.pdf (expressing concern over efforts to ban gas stoves).
13 Exec. Order No. 13990 (Jan. 20, 2021); see also ""Fact Sheet: List of Agency Actions for Review,'' White House (Jan. 20, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-ofagency-actions-for-review/.
14 86 Fed. Reg. 61731 (Nov. 8, 2021).

Deputy Administrator Brown
October 25, 2023
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Under this cloud of regulatory uncertainty, no one has committed to moving LNG by rail, which
would include the major capital expense of a fleet of robust LNG tank cars. PHMSA ignores this
context, noting only the "considerable uncertainty regarding whether any would occur in the time
it takes for PHMSA to consider potential modifications to the existing, pertinent HMR
requirements,"15 failing to recognize that this "considerable uncertainty" was created by the
agency itself. Having suspended the LNG by rail rule and taken other actions targeting LNG, the
Biden administration cannot now claim a lack of interest in transporting LNG by rail to justify its
actions.

PHMSA also engages in questionable market analysis by downplaying the economics supporting
the transportation of natural gas by rail after having placed its own thumb on the scale. It asserts
with unjustified confidence that "domestic consumption of natural gas in the United States is
expected to fall in the next decade due to increasing electrification driven by consumer
preferences and Federal and State policy initiatives to reduce [greenhouse gas] emissions," citing
the Energy Information Administration (EIA) March 2023 annual energy outlook.16 PHMSA
oddly cherry-picks that data point, however, as the same source cited in the EIA report shows
any reduction in natural gas consumption reversing, with consumption thereafter increasing
steadily.17 Indeed, the EIA report seems to be forecasting a temporary slump in American
economic activity caused by this administration, with related reduction in energy consumption,
followed by a recovery in both metrics. It is shameful for the Biden administration to rely on its
own market interference and disruption to justify even greater market interference and
disruption.

PHMSA Must Consider Reasonable Rules for Moving LNG by Rail, not Ban It on the Sly

The troubling rationale of the suspension of the LNG by rail rule suggests that its "temporary"
nature is a mere smokescreen for intended permanent deterrence of American LNG that might
rely on rail transportation. PHMSA uses the lack of recent LNG by rail investment to justify the
suspension without recognizing that this lull has given PHMSA ample opportunity to evaluate
the relevant safety requirements.18 And yet, PHMSA has made no progress on the companion
safety rulemaking. Additionally, PHMSA declined to renew the last special permit it issued19
and proudly states that its suspension of LNG by rail "guarantees no such transportation will

15 Id. at 61732.
16 88 Fed. Reg. at 60363 (emphasis added).
17 "Annual Energy Outlook," Energy Information Administration (Mar. 2023), at 25,
https://www.eia.gov/outlooks/aeo/pdf/AEO2023_Narrative.pdf.
18 Railway Supply Institute, Comment Letter on Proposed Suspension of HMR Amendments Authorizing Transportation of Liquefied Natural Gas by Rail (Dec. 23, 2021), at 4,
https://www.regulations.gov/comment/PHMSA-2021-0058-7047.
19 PHMSA Denial of Application for Renewal of DOT-SP 20534, https://www.phmsa.dot.gov/foia/phmsa-denialapplication-renewal-dot-sp-20534.

Deputy Administrator Brown
October 25, 2023
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occur before its companion rulemaking has concluded or June 30, 2025."20 This is an arbitrary
ban masquerading as a thoughtful pause.

Perversely, PHMSA's participation in an all-out effort against American energy production
works against the goal it purports to serve. PHMSA declares that the suspension "avoid[s]
potential risks to public health and safety or environmental consequences (to include direct and
indirect greenhouse gas (GHG) emissions)."21 In reality, the United States has led the world in
reducing carbon emissions since peaking in 2007, largely because of America's development and
use of affordable and clean natural gas.22 Greater transportation of LNG by rail would give
Americans an affordable and environmentally responsible option to meet their energy needs.
Suspension of the LNG by rail rule is mere virtue signaling, not progress in reducing emissions.

Action Requested

The safe movement of LNG by rail would benefit the economy and national security. Given the
importance of access to energy, PHMSA must reconsider its extremism towards LNG by rail.
We look forward to your response committing to reverse the suspension of the LNG by rail rule.
Alternatively, and at a minimum, please respond with commitments to:

 acknowledge the overall strength of the 2020 LNG by rail rule, including the
specification for the LNG tank cars therein, in any future PHMSA regulations;
 focus PHMSA's work on LNG by rail on the narrow recommendations for further study
from the National Academy of Sciences, Engineering, and Medicine; and
 issue rules that are reasonable, supported by robust cost-benefit analysis, and give the
regulated community much-needed certainty by authorizing the transportation of LNG
by rail.

We request your responses to the above by November 8, 2023. Thank you for your prompt
attention to this important matter.

Sincerely,
___________________ ___________

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