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H.R. 1401, The Rail and Public Transportation Security Act of 2007

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Swamp Fox

RE: §134: The amendment requires federal officials to evaluate safety and security issues surrounding the placement of high-voltage power lines along active railroad rights of way. This is already a function of the state and local governments as the Second Circuit made clear in the case Green Mountain R.R. Corp. V. Vermont, 404 F.3d 638(2nd Cir. 2005)"not all state and local regulations are preempted … bodies retain certain police powers which protect public health and safety. It therefore appears that states and towns may exercise traditional police powers over the development of railroad property, at least to the extent that the regulations protect public health and safety….” §134 takes power away from the states and local governments. HR. 1401 §3 provides. The Secretary and the Secretary of Transportation have the power to preempt such positive enactments by substantially subsuming the same subject matter, pursuant to proper administrative procedures.

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