Railroads Still Looking to Overturn Virginia Crossing Law

WASHINGTON, June 11, 2025 – After a win in Virginia’s highest state court, the American Association of Railroads is still hoping federal judges will strike down the state’s law aimed at easing broadband deployment across rail lines.

After the Supreme Court of Virginia held the law could not be used by private, for-profit ISPs under the state’s constitution, the state had gone to the Fourth Circuit Court of Appeals, where AAR’s challenge to the law is pending, and said the decision undermined the group’s case. The state argued that by narrowing the set of ISPs who could invoke the law to expedite approvals and pay lower fees, the decision made it less likely AAR or its members would be harmed by the law.

Virginia “fails in trying to spin a resounding loss in state court into reasons [it] should win here,” AAR argued in a May 30 response. “That individual railroads could (successfully) challenge [the law] as applied to specific crossings does not suggest that AAR cannot challenge it more broadly.”

The group reiterated its arguments that the national regulatory framework for railroads preempted the law, and that it still had standing to challenge the law as an association.

The Fourth Circuit heard oral arguments in the case on Jan. 29 and has yet to issue a decision.

The law, passed in 2023, requires railroad companies to respond to crossing applications from ISPs within 35 days and caps the fees railroads can charge at $2,000 per crossing. Railroads can’t charge a fee for crossings that follow public rights-of-way under the law.

The Supreme Court of Virginia ruled that Cox Communications couldn’t use the law to force Norfolk Southern, a railroad company, to allow it to lay fiber under tracks in New Kent County at a given rate. The court said that the arrangement would amount to Cox exercising eminent domain and seizing private property for its own private use, something prohibited by Virginia’s constitution.

In the federal challenge, AAR has argued the law violated the U.S. Constitution by preventing railroads from charging fees for certain crossings.