James and Leola Goldthwaite have lived in their red-brick rancher by the tracks in Norwood for more than four decades.
They kept their heads up as the closings of the nearby Carraway Methodist Medical Center and Norwood Elementary School drove property values down across their North Birmingham neighborhood. They've long ignored the sharp horn blasts that announce the trains that regularly roll past their house, an inconvenience that impacts hundreds of homeowners throughout the city.
But the retired couple drew the line at their health. Beginning about five years ago, the Goldthwaites say that trains operated by Norfolk Southern Railway Company have regularly stopped on the tracks directly behind their home.
The Goldthwaites say that locomotives pulling dozens of coal cars often idle just yards from their bedroom window for hours on end, emitting noxious diesel fumes, and that they sometimes turn their engines off and park there for days, allowing black dust from the coal they transport to blow across their property.
The pollutants are not just a nuisance that coats their roof, yard ornaments and grass in a dark film. They have also likely contributed to the recent emergence of a number of health problems for Leola Goldthwaite, the 64-year-old former nurse said Tuesday morning as a Norfolk Southern train idled loudly outside her home, tainting the breeze with the scent of burning fuel.
"I was just diagnosed with asthma. I've been under the doctor's care for the last six months for asthma, taking medications for it, and I had a couple of respiratory infections. I also have to take allergy shots every week now," she explained. "That's why I wear a mask when I go outside. It's just a dust mask to keep fumes out of my lungs."
Norfolk Southern filed a motion to dismiss the case, arguing that Goldthwaite's complaint was pre-empted by the federal Interstate Commerce Commission Termination Act of 1995 (ICCTA.) After being temporarily escalated to federal court, the case was sent back to the state court system last year, eventually reaching the Alabama Supreme Court in October 2014 on an appeal by Norfolk Southern.On Oct. 10, 2013, James Goldthwaite, 66, took legal action in hopes of getting Norfolk Southern to change the way it operates. He says he could not find a lawyer to represent him against the major corporation, so he represented himself, filing a claim in Alabama state court alleging that his rights under the U.S. Constitution were being violated by Norfolk Southern because of "the harm they have done to my life, health, liberty and my home."
The company argued again that the claim should be dismissed, stating that "the Surface Transportation Board's exclusive jurisdiction over transportation by rail carriers is unambiguous and precise," and that therefore the federal agency's oversight of trains' operations should not be second-guessed by the courts.
By that point, Goldthwaite had amended his argument, instead arguing under Alabama state nuisance law in a January 15 brief that Norfolk Southern had "violated [his] legal rights to the enjoyment of [his] property," and that the rumbling of train engines had damaged his home's foundation, while their fumes had negatively impacted his and his wife's health.
The state Supreme Court instead threw the case out on Friday, concluding that Goldthwaite's claims were indeed pre-empted by federal law, and that "the circuit court erred in denying Norfolk Southern's motion to dismiss."
Norfolk Southern is "pleased with the Court's decision in the case," company spokeswoman Susan Terpay wrote in a Tuesday statement.
"The opinion explains in detail the safety and logistical reasons for train operations at this location, which is situated between the mine and the power plant at a spot where we can stage a 100-car coal train so that we do not block any grade crossings," the statement said, referring to a coal mine in Berry and the Alabama Power Company coal-fired power plant it fuels in Wilsonville.
Theo Lawson, an assistant county attorney at the Jefferson County Attorney's Office, said that the government does not have a direct role to play in the Goldthwaites' case.
"The county attorney's office does not represent individual citizens, and a private nuisance action would be initiated by a private citizen, not county government," he said.
Birmingham business, land and environmental lawyer Bart Slawson said that a case such as the Goldthwaites' is an uphill battle at best.
"You'd have to prove that this specific substance, I guess it would be coal dust, came off this train and infected this guy and caused some kind of disease or damage of or something else, and some doctor would have to testify that that's why this guy got sick," he said "And the railroad would get in there and say, 'Well do you smoke cigarettes? Do you drink pop with aspartame in it? Do you go places where there are lots of cars?'"
Still, the Goldthwaites say they are not yet giving up the fight against Norfolk Southern. They are looking into whether they can take the case back to federal court or if they can petition the U.S. Supreme Court to take up the case.
"We know the importance of the trains: transportation and transporting goods and services. We're just asking for them not to stay there with those loud noises and the fumes," Leola Goldthwaite said Friday afternoon. "Can you imagine that engine right next to your bedroom when you're trying to sleep? I don't think that's too much to ask."
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