High court hears arguments on whether federal rail preemption blocks Virginia broadband-crossing law

The Supreme court heard arguments in a case pitting CSX Transportation and broadband companies against the State Corporation Commission over a Virginia statute that creates a streamlined process for broadband crossings of railroad property, a counsel for the parties said Tuesday.

Gilbert Dickey, counsel for CSX Transportation, told the court the statute is “a several page regime targeted exclusively at railroad property” and argued it is preempted by the federal preemption provision cited in the transcript as ICDA. “States cannot single out rail transportation for uniquely disfavored treatment,” Dickey said, urging the court to find that the statute regulates rail transportation and therefore falls within federal exclusivity.

The issue matters because, if the court finds the state law preempted, Virginia would lose a state-specific means of authorizing broadband crossings; if the court upholds the law, the statute would authorize a licensing process that, according to proponents, speeds broadband deployment but, according to opponents, intrudes on railroad property and safety-regulation authority.

Arguments and central issues

Dickey emphasized the statute’s targeted nature, saying the law establishes substantive standards, short review deadlines and an exclusive forum for challenges — features he said are not incidental and therefore amount to regulation of rail transportation under the federal text. He told the court the federal statutory definition cited in arguments “specifically includes any property or facility related to the movement of passengers or property by rail,” and that courts have broadly interpreted that definition to include railroad property in present or future use.

Eric Maley, counsel for the Commonwealth, urged the court to uphold the statute. Maley argued courts and the Surface Transportation Board have generally held that state crossing laws are not preempted unless a particular crossing “impedes rail operations or poses undue safety risks.” Maley said the Virginia statute itself conditions crossings on not impeding operations or endangering safety and that the statute is therefore consistent with federal law.

Joshua Weiss, counsel for Cox, focused on practical and factual aspects of crossings and on the statute’s licensing structure. Weiss told the court that the record shows crossings typically involve a small conduit — “we’re actually talking cables that are the size of a hair. It’s just the conduit” — horizontally bored beneath track lines and sited to minimize work within the railroad right of way. He emphasized that the statute grants a revocable license rather than an easement or fee, and argued that licensing and procedural protections minimize ongoing interference and allow railroads to require relocation if crossings later interfere with operations.

Justices’ questions and contested tests

Justices pressed both sides on the line between generally applicable property law and a rail‑specific regulatory scheme. Justice Kelsey asked whether the statute’s discrimination language is really a preemption question, and Maley and Dickey responded differently: Maley said discrimination analysis does not apply unless a law is already within the express‑preemption provision, while Dickey said that a statute targeted at railroad facilities is a strong indication the state is regulating rail transportation and that discrimination is relevant to the statutory preemption inquiry.

Several justices queried the practical scope of crossings, including how often crossings are placed within existing public rights of way or outside railroad property, and whether speculative future interference (for example to build new lines) is sufficient to show unreasonable interference with rail transportation. Maley and Weiss repeatedly pointed to the statute’s safety conditions and to case‑by‑case factual review as limiting any categorical conflict with federal regulation; Dickey urged a broader view of the text and of the statute’s targeted mechanics.

Takings and public‑use questions

Counsel and justices also debated whether compelled crossings constitute a taking and, if so, whether the taking is for a public use. Maley argued that courts should defer to a presumption of constitutionality and that the statute limits takings to that which is necessary for the public use at issue (broadband deployment). Dickey and Weiss both acknowledged that a crossing is a taking that requires compensation but disputed how broad a public‑use finding could be. Weiss said the license form and the statute’s limits mean any taking should be narrow and contestable; Dickey noted the court’s prior public‑use precedents focusing on possession, occupation or enjoyment by the public or a public agency.

Where the record stands and next steps

Counsel noted parallel proceedings in federal courts, including an Eastern District of Virginia opinion and a Fourth Circuit matter, and the justices asked whether the state court should stay to await a federal decision. Maley suggested the high court’s guidance on the state statute could be valuable to the federal panels because of mixed questions of state and federal law; Dickey and others said the court should resolve the question presented to this court.

At oral argument, all parties asked for relief consistent with their positions: Dickey urged reversal of the state commission’s approval on preemption grounds; Weiss asked the court to reverse the State Corporation Commission’s decision; Maley asked for affirmation. The court took the case under advisement and did not announce a decision at the hearing.

Ending

The case will return to the justices for decision on whether the Virginia statute is preempted under the federal provision identified in the transcript as ICDA and on related takings and public‑use questions. The court’s ruling will determine whether Virginia’s statutory licensing route for broadband crossings remains available or is displaced by federal preemption.