It’s relatively rare for a large company to sue its regulator, but BNSF Railway has done just that.

In April, BNSF filed a protest of an administrative ruling by the Federal Railroad Administration seeking “relief on the grounds that FRA’s action is arbitrary, capricious, an abuse of discretion, and otherwise contrary to law, all in violation of the Administrative Procedure Act.”

BNSF asked that the court “hold unlawful, vacate, and set aside the Order; direct FRA to grant the waiver; and grant such additional relief as may be necessary and appropriate.”

The waiver in question has to do with track safety measures. The administrative rule, made in 1971, specifies mandatory human track-walking as the only way to spot track weaknesses and put in for necessary repairs to head off derailments. The railroads have argued that new technology offers a better way of doing track inspections.

Until relatively recently, the FRA seemed to agree with them. It greenlighted test programs and waivers for several railroads to use Automated Track Inspection technology, in some cases instead of trackwalkers. The Alliance for Innovation and Infrastructure explained how that works on its website.

“Trains are now capable of continuous, autonomous data collection that can send streams of information to human operators and artificial intelligence for analysis to improve safety and efficiency,” wrote Benjamin Dierker, director of public policy for the Alliance for Innovation and Infrastructure. “Through autonomous track inspections, equipment can now be mounted directly onto locomotives or railcars so that every mile the train travels serves as its own inspection, data collection run, and digital pin drop for maintenance follow-ups.”

What this gear allows for is track inspection “in real-time, measuring and detecting track spacing and micro-deficiencies that human inspectors may not even be able to see,” Dierker wrote. It allows inspection to “happen in real-world conditions of a fully-loaded freight train moving along the track, rather than a human walking the track or a retrofitted inspection truck mounted on the track.”

One of the many reasons railroads are so taken with ATI technology is that it also allows for “inspection while the ordinary course of business is still conducted, not sacrificing time and resources to delay trains or block sections of track for alternative inspection vehicles,” he explained.

To many, that may sound like an improvement over track-walking, though perhaps not to the track inspectors whose jobs it threatens to make redundant.

Last year, the FRA announced that it would allow some of those test programs to expire, quite against industry expectations. Congressional pressure convinced the agency to extend those programs for a limited time, but it refused to grant a waiver for BNSF to expand its use of ATI technology. Thus the lawsuit.

“After consideration of BNSF’s June 15, 2021, waiver expansion request, the public comments filed in the docket, and BNSF’s follow-up letters of January 14, 2022, and March 11, 2022, FRA finds that given the ongoing RSAC task related to ATI, expanding the existing relief at this time is not justified,” wrote Karl Alexy, the FRA's associate administrator for railroad safety.

The agency’s reasoning for its dismissal of BNSF’s waiver request prompted trade publican Railway Age editor William Vantuono to protest, writing, “Denying BNSF the opportunity to expand ATI makes no sense to me whatsoever. As FRA notes, there was only one public comment filed, from the [Brotherhood of Maintenance of Way Employes Division's International Brotherhood of Teamsters], giving the impression, at least to me, that the denial may be politically motivated.”

Marc Scribner, a transportation policy analyst for the Reason Foundation, agreed that the politicization of the FRA could be a problem.

“It’s astonishing for a safety regulator to completely reverse itself on documented safety improvements the regulator has praised in the past because one self-interested union expressed opposition to safety-improving technology,” he told the Washington Examiner. “The courts should overturn these reckless and unlawful decisions, and Congress and the department’s inspector general should investigate FRA’s about-face on ATI.”

The rail industry appears to be on the side of BNSF in this conflict, though other railroads have yet to file suit.

“The [Transportation Department] secretary said at a May congressional hearing, ‘If there's even an ounce of efficiency to wring out of the system, now's the time to capture it,’” Association of American Railroads spokesman Ted Greener told the Washington Examiner. “Railroads agree, and automated track inspection not only helps with freight fluidity but improves safety — ostensibly the primary goal of the Federal Railroad Administration."

He added, "Regulators should take a levelheaded and data-driven approach to expand the use of this technology. Catering to select political interests, including those misrepresenting the impact of technology to the workforce, is no way to make sound policy.”

The FRA told the Washington Examiner that it does not comment on pending litigation. However, a representative said the agency "is committed to promoting advancements in track inspection technologies in conjunction with visual track inspections to improve railroad track safety."