A presumption against agency preemption

Northwestern University Law Review

Volumn 102, Issue 2, 2008, Pages 695-725

  Mendelson, Nina A ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 49849086148     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (155)

1. See Investment Securities; Bank Activities Operations; Leasing, 66 Fed. Reg. 34,784, 34,788 (July 2, 2001) (codified at 12 C.F.R. pts. 1, 7, 23 (2002)); Preemption Determination and Order, 68 Fed. Reg. 46,264, 46,264 (Aug. 5, 2003) (specifically stating that Georgia consumer protection law is preempted). The OCC has taken the position that it was merely consolidating earlier guidance or other statements on preemption, see, e.g., Bank Activities and Operations, 69 Fed. Reg. 1895 (Jan. 13, 2004) (codified at 12 C.F.R. § 7.4000 (2005)) (visitorial powers); Bank Activities and Operations; Real Estate Lending and Appraisals, 69 Fed. Reg. 1904 (Jan. 13, 2004) (codified at 12 C.F.R. §§ 7.4007-7.4009, 34.3-34.4 (2005)) (national bank activities).
2. See Chemical Facility Anti-Terrorism Standards, 71 Fed. Reg. 78,276, 78,293 (Dec. 28, 2006) (proposed rule). In the Homeland Security Appropriations Act of 2007, Congress had provided the Department of Homeland Security with interim authorization to regulate the security of high-risk chemical facilities by setting "risk-based" standards, but that legislation dodged the question whether state authority to regulate those facilities would be affected. See Department of Homeland Security Appropriations Act, 2007, Pub. L. No. 109-295, § 550, 120 Stat. 1355 (2006).
3. 127 S. Ct. 1559 (2007). The state of Michigan challenged the agency's position directly; the other forty-nine states and Puerto Rico filed a joint amicus brief in support of Michigan's position. See Brief of States of New York, Alabama, et al. as Amici Curiae Supporting Petitioner, Watters, 127 S. Ct. 1559 (No. 05-1342), 2006 WL 2570992.
4. See Brief of the National Conference of State Legislatures, National Governors' Association, et al., as Amici Curiae Supporting Petitioner at 17, Watters, 127 S. Ct. 1559 (No. 05-1342), 2006 WL 2570993 (describing the OCC's record on consumer protection as "lax" and "unimpressive" (citations and internal quotation marks omitted)); see also Brief of American Association of Retired Persons, et al., as Amici Curiae Supporting Petitioner at 11-12, Watters, 127 S. Ct. 1559 (No. 05-1342), 2006 WL 2570989 (arguing that OCC consumer protection enforcement is "extremely weak" compared with state enforcement). Admittedly, the OCC has issued some nonbinding guidance to national banks on predatory practices. See Guidelines for National Banks to Guard Against Predatory and Abusive Lending Practices, OCC Advisory Letter 2003-2 (Feb. 21, 2003), available at http://www.occ.treas.gov/ftp/advisory/2003-2.pdf; Avoiding Predatory and Abusive Lending Practices in Brokered and Purchased Loans, OCC Advisory Letter 2003-3 (Feb. 21, 2003), available at http://www.occ. treas.gov/ftp/advisory/2003-3.pdf; OCC Guidelines Establishing Standards for Residential Mortgage Lending Practices, 70 Fed. Reg. 6329,6330 (Feb. 7, 2005) (citing both advisory letters).
5. For example, in congressional debate regarding whether to adopt the bill authorizing the Department of Homeland Security to regulate chemical-facility- related terrorism risks, which lacked a savings clause protecting state law, New Jersey Congressman Frank Pallone, Jr. noted that the bill "fails to protect the rights of States like my own, New Jersey, to implement stronger security requirements at chemical plants." 152 CONG. REC. H7911 (daily ed. Sept. 29, 2006). After the Department of Homeland Security issued its rule, Senator Frank R. Lautenberg of New Jersey commented, "Last year, New Jersey required that chemical facilities adopt a practice known as inherently safer technology. . . . But last week, the Bush administration sent a signal that it wants to override the right of States to require inherently safer technology . . . . This approach is wrong." 152 CONG. REC. S2606 (daily ed. Mar. 30, 2006).
6. The Supreme Court ruled in the OCC case that congressional intent was to preempt state consumer protection laws, so the agency's ruling merely "clarif[ied] and confirm[ed]" existing law. Watters, 127 S. Ct. at 1572.
7. Responding to sharp congressional pressure, the U.S. Secretary of Homeland Security wrote Congress that the Department would drop its claim to authority to preempt state law. Associated Press, U.S. Won't Override State Rules on Plants, N.Y. TIMES, Apr. 2, 2007, at A17 (reporting on a letter from the U.S. Secretary of Homeland Security, Michael Chertoff, which indicated that the Department of Homeland Security would not seek to preempt "stricter state rules already in place"). At the very end of 2007, Congress amended its earlier enactment authorizing the Department to regulate chemical plant security to save state law. The amendment stated: This section shall not preclude or deny any right of a State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance with respect to chemical facility security that is more stringent than a regulation, requirement, or standard of performance issued under this section, or otherwise impair any right or jurisdiction of any State with respect to chemical facilities within that State, unless there is an actual conflict between this section and the law of that State. Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 534, 121 Stat. 1844, 2075 (2007) (amending Department of Homeland Security Appropriations Act, § 550) (to be codified at 6 U.S.C. § 121 note).
8. See Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products, 71 Fed. Reg. 3922, 3934 (Jan. 24, 2006) (codified at 21 C.F.R. pts. 201, 314, 601 (2007)) ("FDA approval of labeling under the [A]ct, whether it be in the old or new format, preempts conflicting or contrary State law."); Federal Motor Vehicle Safety Standards; Roof Crush Resistance, 70 Fed. Reg. 49,223,49,245-46 (Aug. 23,2005) (proposed rule) ("[T]he agency believes that either a broad State performance requirement for greater levels of roof crush resistance or a narrower requirement mandating that increased roof strength be achieved by a particular specified means, would frustrate the agency's objectives by upsetting the balance between efforts to increase roof strength and reduce rollover propensity. . . . [I]f the proposal were adopted as a final rule, it would preempt all conflicting State common law requirements, including rules of tort law."); see also Sunscreen Drug Products for Over-the-Counter Human Use, 72 Fed. Reg. 49,070,47,109-10 (Aug. 27, 2007) (suggesting that proposed sunscreen regulation will preempt both state regulations and state common law claims); Passenger Equipment Safety Standards; Front End Strength of Cab Cars and Multiple-Unit Locomotives, 72 Fed. Reg. 42,016,42,036 (Aug. 1, 2007) (suggesting that its equipment safety standards should preempt state statutory, regulatory, and common law standards).
9. E.g., Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 173 (2001) (declining to find that agency is authorized to regulate isolated waters because of concerns of "alter[ing] the federal-state framework by permitting federal encroachment upon a traditional state power."); Alden v. Maine, 527 U.S. 706, 756-57 (1999) (defining which state institutions can assert sovereign immunity under the Eleventh Amendment); Printz v. United States, 521 U.S. 898, 933 (1997) (striking down legislation as commandeering state resources in violation of the Tenth Amendment); United States v. Lopez, 514 U.S. 549, 554-55 (1995) (characterizing the Commerce Clause as critical to ensuring some "limit to the federal power"); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 547-55 (1985) (adopting "political safeguards" approach to Tenth Amendment analysis).
10. Under the Supremacy Clause, U.S. CONST. art. VI, cl. 2, Congress may "preempt state law if it chooses." Cass Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 331 (2000).
11. See 49 U.S.C. § 5125(d) (2000). That section authorizes the Secretary of Transportation to hear and decide applications on whether a particular state standard is "substantively the same" as federal law and thus exempt from statutory preemption provisions. Id.
12. The Sixth Circuit's opinion in Watters v. Wachovia Bank, N.A. took this line. See 431 F.3d 556, 560 (6th Cir. 2005) (declining an invitation to examine a specific authorization to an agency to preempt and instead using the Chevron framework), aff'd on other grounds, 127 S. Ct. 1559 (2007).
13. 467 U.S. 837 (1984).
14. 533 U.S. 218 (2001).
15. 323 U.S. 134 (1944). See Nina Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737, 789 & n.214, 797-98 (2004).
16. Mendelson, supra note 15, at 779-94.
17. See Chemical Facility Anti-Terrorism Standards, 72 Fed. Reg. 17,688, 17,726 (Apr. 9, 2007) (to be codified at 6 C.F.R. pt. 27) (final rule) (suggesting that, despite congressional inaction on the preemption question, agencies are empowered to "fill those gaps" (citing Chevron, 467 U.S. at 843)).
18. Mendelson, supra note 15.
19. See infra text accompanying note 23 (describing obstacle preemption).
20. U.S. CONST. art. VI, cl. 2.
21. See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470,484 (1996) ("[T]he pre-emptive language of [the relevant statute] means we need not go beyond that language to determine whether Congress intended the MDA to pre-empt at least some state law . . . , [though] we must nonetheless 'identify the domain expressly pre-empted' by that language . . . ." (citations omitted)).
22. See Hines v. Davidowitz, 312 U.S. 52,62-63 (1941).
23. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 873-74 (2000).
24. I argue elsewhere that agency interpretations of preemptive language nonetheless should not receive Chevron deference from courts. See Mendelson, supra note 15, at 797-98.
25. Properly authorized federal agency rules are deemed to have the "force of law," just like a statute does. See Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977) (declaring that courts must give the force of law to properly issued substantive agency regulations). Under the Supremacy Clause, state law accordingly must yield. E.g., Fid. Fed. Sav. & Loan v. de la Cuesta, 458 U.S. 141, 153 (1982) ("Federal regulations have no less pre-emptive effect than federal statutes."); United States v. Shimer, 367 U.S. 374, 382 (1961) (holding that a validly issued Veterans' Administration regulation preempted conflicting state law). An interesting question, but one beyond the scope of this Article, is whether special evidence of congressional intent might be required to evaluate an agency's authority in the case where the agency could have chosen between two equally effective approaches to implement a statute, and one approach preempts state law while the other does not.
26. An agency declaration of "field preemption" is not out of the question, however. The Department of Homeland Security, for now, has declined to claim that its chemical plant security regulations occupy the field. See Chemical Facility Anti-Terrorism Standards, 72 Fed. Reg. 17,688, 17,727 (Apr. 9, 2007) (to be codified at 6 C.F.R. pt. 27) (final rule) ("The Department does not view its regulatory scheme as one which so fully occupies the field as to pre-empt any state law . . . .").
27. See Chemical Facility Anti-Terrorism Standards, 71 Fed. Reg. 78,276, 78,293 (Dec. 28, 2006) (proposed rule).
28. See Department of Homeland Security Appropriations Act, 2007, Pub. L. No. 109-295, § 550, 120 Stat. 1355 (2006). A savings clause was added in the 2008 appropriations legislation. See supra note 7.
29. See Ben Geman, N.J. Sets New Rules, as Congress Eyes Federal Authority, E&E NEWS, Mar. 16, 2007.
30. See Chemical Facility Anti-Terrorism Standards, 71 Fed. Reg. at 78,293.
31. See id. at 78,302 (proposed language for 6 C.F.R. § 27.405).
32. This course of events might perhaps illustrate a different point as well. Perhaps any truly significant federalism issues raised by federal preemption can simply be raised through the political process, and no presumption against preemption is required to protect state regulatory autonomy from agency incursion. If so, however, this argument would also eliminate the basis for a presumption against preemption.
33. See Chemical Facility Anti-Terrorism Standards, 72 Fed. Reg. 17,688, 17,727 (Apr. 9, 2007) (to be codified at 6 C.F.R. pt. 27) (final rule).
34. Id. at 17,739 (to be codified at 6 C.F.R. 27.405).
35. See Investment Securities; Bank Activities Operations; Leasing, 66 Fed. Reg. 34,784, 34,788 (July 2, 2001) (codified at 12 C.F.R. pts. 1, 7, 23 (2002)).
36. See Preemption Determination and Order, 68 Fed. Reg. 46,264, 46,264 (Aug. 5, 2003); Bank Activities and Operations; Real Estate Lending and Appraisals, 69 Fed. Reg. 1904 (Jan. 13, 2004) (codified at 12 C.F.R. §§ 7.4007-7.4009, 34.3-34.4 (2005)) (national bank activities).
37. See, e.g., Arthur E. Wilmarth, Jr., The OCC's Preemption Rules Exceed the Agency's Authority and Present a Serious Threat to the Dual Banking System and Consumer Protection, 23 ANN. REV. BANKING & FIN. L. 225, 350-56 (2004) (suggesting that the OCC has not adequately acted on consumers' behalf). The OCC itself acknowledged the criticism in its 2001 rule. See Investment Securities; Bank Activities Operations; Leasing, 66 Fed. Reg. at 34,788 (reporting comments that federal oversight of national bank operating subsidiaries is perceived as inadequate).
38. 12 U.S.C. § 371(a) (2000) (allowing real estate lending by national banking associations but "subject to . . . such restrictions and requirements as the Comptroller of the Currency may prescribe by regulation or order").
39. See Preemption Determination and Order, 68 Fed. Reg. at 46,269.
40. See id. at 46,271.
41. See Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559, 1570-73 (2007).
42. See Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products, 71 Fed. Reg. 3922, 3934 (Jan. 24, 2006) ("FDA approval of labeling under the [A]ct, whether it be in the old or new format, preempts conflicting or contrary State law."); see also id. at 3935 ("Given the comprehensiveness of FDA regulation of drug safety, effectiveness, and labeling under the [A]ct, additional [disclosure] requirements . . . are not necessarily more protective of patients. Instead, they can erode and disrupt the careful and truthful representation of benefits and risks that prescribers need to make appropriate judgments about drug use.").
43. See 21 C.F.R. §201.57(e) (2005) (revised 2006) ("The labeling shall be revised to include a warning as soon as there is reasonable evidence of an association of a serious hazard with a drug . . . ."); see also 21 C.F.R. 201.80(e) (2007) (same).
44. Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products, 71 Fed. Reg. at 3934.
45. Id. at 3935. The preamble statement contains careful caveats: "FDA believes that State laws conflict with and stand as an obstacle to achievement of the full objectives and purposes of [f]ederal law when they purport to compel a firm to include in labeling or advertising a statement that FDA has considered and found scientifically unsubstantiated." Id. In this case, the drug might be considered misbranded. Even if a drug would not be misbranded as a result of state law obligations, and even if the FDA has not specifically considered particular evidence that a state might wish a pharmaceutical company to include on a label, the FDA's position appears to be that federal law preempts state claims "that a sponsor breached an obligation to warn by failing to include contraindications or warnings that are not supported by evidence that meets the standards set forth in this rule," including 21 C.F.R. §§ 201.57(c)(5) and (c)(7). Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products, 71 Fed. Reg. at 3936. The former section requires inclusion of "known hazards"; the latter the inclusion of the "overall adverse reaction profile of the drug." The PDA's position assumes that "given the comprehensiveness of FDA regulation of drug safety, effectiveness, and labeling under the [A]ct, additional requirements for the disclosure of risk information are not necessarily more protective of patients." Id. at 3935.
46. Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products, 71 Fed. Reg. at 3935.
47. See Letter from U.S. Food & Drug Administration to Bill Lockyer re a Suit Filed on June 21, 2004, People of the State of California v. Tri-Union Seafoods (Aug. 12, 2005), available at www.cfsan.fda.gov/∼dms/fl-ltr65.html.
48. Id. The letter also argued that the tuna cans might be considered misbranded under federal law if California required the labels, see id., a dubious position in view of the FDA's own consumption advisories posted on the Internet for canned tuna. The FDA has taken a similar position in a tort lawsuit brought by a mercury-poisoned woman, and the district court accepted the FDA's view that state common law claims were preempted. See Fellner v. Tri-Union Seafoods LLC, No. 07-1238, 2007 WL 87633, at *6-7 (D.N.J. Jan. 9, 2007), appeal filed, No. 07-1238 (3d Cir. Jan. 23, 2007) (pending; argued February 2008).
49. See Federal Motor Vehicle Safety Standards; Roof Crush Resistance, 70 Fed. Reg. 49,223 (Aug. 23, 2005) (proposed rule).
50. Id. at 49,245.
51. See id. at 49,245-46; see also Final Rule: Standard for the Flammability (Open Flame) of Mattress Sets, 71 Fed. Reg. 13,472, 13,496-97 (Mar. 15, 2006) (codified at 16 C.F.R. pt. 1633 (2007)) (taking position that the mattress standard preempts not only state "standards," as provided by statute, but also state common law).
52. See Mendelson, supra note 15, at 779-91.
53. E.g., Gade v. Nat'l Solid Wastes Mgmt. Assoc., 505 U.S. 88, 98 (1992) (defining conflict preemption as including the situation where compliance with both state and federal law is a physical impossibility).
54. E.g., Geier v. Am. Honda Motor Co., 529 U.S. 861, 881 (2000) (accepting the agency's argument that a tort claim for failure to install airbags would interfere with the federal goal of encouraging manufacturers to develop a "variety and mix" of safety devices); see also Gade, 505 U.S. at 102 (finding state worker safety laws impliedly preempted as conflicting with the federal goal of avoiding duplicative regulation, though not the federal goal of encouraging worker safety). The contrast here is direct conflict preemption-where compliance with both a federal rule and a state law is impossible. Under those circumstances, the federal rule clearly prevails. This outcome seems consistent with congressional intent that an agency's regulations be effective.
55. Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559,1583 n.24 (2007) (Stevens, J., dissenting).
56. E.g., Wachovia Bank, N.A. v. Watters, 431 F.3d 556, 560 (6th Cir. 2005) (framing the issue as a Chevron question), aff'd on other grounds, 127 S. Ct. 1559 (2007).
57. See supra text accompanying notes 1, 3-4.
58. See Watters, 127 S. Ct. at 1571-72. The Department of Homeland Security expressly took this line in its proposed chemical plant security rulemaking. See Chemical Facility Anti-Terrorism Standards, 71 Fed. Reg. 78,276, 78,292-93 (Dec. 28, 2006) (proposed rule) (arguing that the "gap" in the statute is to be filled as the agency interprets the "ambiguit[ies]," and that Chevron deference is due).
59. 546 U.S. 243 (2006).
60. See id. at 257-60. The court reasoned that the agency had only limited powers to issue rules relating to "registration" and "control," and that the agency accordingly lacked the authority to define standards of medical practice.
61. See United States v. Mead, 533 U.S. 218, 228-29 (2001); see also Barnhart v. Walton, 535 U.S. 212, 222 (2002) (mentioning an agency's "power" as relevant to the extent of judicial deference afforded to agency legal interpretations).
62. See U.S. ADVISORY COMM'N ON INTERGOVERNMENTAL RELATIONS, FEDERAL STATUTORY PREEMPTION OF STATE AND LOCAL AUTHORITY: HISTORY, INVENTORY, AND ISSUES 14-15 (1992), available at http://www.library.unt.edu/gpo/acir/Reports/ policy/a-121.pdf (identifying 439 federal preemptive statutes, compared with 34 statutes either clarifying state and local authority where preemption might otherwise result or reducing preexisting federal preemption).
63. See id.
64. See Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1, 29 (2007).
65. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988).
66. Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 172-73 (2001). Admittedly, that case involved both a potential alteration of the state-federal framework and a constitutional question involving Congress's Commerce Clause authority. As with the "clear statement" doctrine, however, where Congress is assumed, absent a clear statement, not to wish to present a court with a constitutional question, the presumption against preemption amounts to an assumption that Congress does not wish the courts to preempt state law absent a clear statement.
67. E.g., supra note 5 and accompanying text (discussing the debate around a bill authorizing the Department of Homeland Security to set chemical plant security standards).
68. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 231 (1947); Napier v. Atl. Coast R.R. Line Co., 272 U.S. 605, 611 (1926) ("The intention of Congress to exclude states from exerting their police power must be clearly manifested.").
69. See also Victoria Nourse & Jane Schacter, The Politics of Legislative Drafting, 77 N.Y.U. L. REV. 575, 600-05 (2002) (suggesting that legislation is often drafted with knowledge of the various canons of construction).
70. As I have discussed elsewhere, the presumption against preemption could be defended as an assumption about the median legislator's preferences, but it also may well represent the Judiciary's own emphasis on preserving state regulatory autonomy and federalism, and the related goal of avoiding incidental statutory interference with state regulatory autonomy. Mendelson, supra note 15, at 747-50, 758. Similarly, reading an agency's authorization broadly to allow it to preempt state law would risk the same sort of incidental interference with state regulatory autonomy and with the balance of state and federal power.
71. See infra text accompanying notes 111-15.
72. See, e.g., Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 222 (2000) (arguing that federalism is best justified "because preferences for governmental policy are unevenly distributed among the states and regions of the nation, [so] more people can be satisfied by decentralized decisionmaking").
73. See, e.g., Fed. Energy Reg. Comm'n v. Mississippi, 456 U.S. 742, 789 (1983) (O'Connor, J., concurring in part and dissenting in part) ("[F]ederalism enhances the opportunity of all citizens to participate in representative government."); Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. CHI. L. REV. 1484, 1510 (1987) ("The federal government is too distant and its compass too vast to permit extensive participation by ordinary citizens . . . ."). But see Frank Cross, The Folly of Federalism, 24 CARDOZO L. REV. 1, 1-2 (2002) (suggesting that "federalist" values are really values of localism).
74. E.g., New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (describing states as "laborator[ies]").
75. The states are Connecticut, Delaware, Maine, New Hampshire, New Jersey, New York, and Vermont. See Lucy Kafanov, Climate, Deluge of Comments Delays Release of RGGI Rule, GREENWIRE, July 24, 2006.
76. See Dan Berman, Supreme Court "Pre-Emption" Cases Cast Shadow over Enviro Regs, GREENWIRE, Oct. 5, 2007. Shortly before this Article went to press, the Environmental Protection Agency denied California the required waiver for its motor vehicle greenhouse gas emissions standards under the Clean Air Act. See Environmental Protection Agency, California State Motor Vehicle Pollution Standards; Notice of Decision Denying a Waiver of Clean Air Act Preemption for California's 2009 and Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles, 73 Fed. Reg. 12,156 (Mar. 6, 2008). California is seeking judicial review. See Alex Kaplun, Climate: Calif., Groups Sue EPA over Waiver Decision, E&E NEWS PM, Jan. 2, 2008.
77. See Pew Center on Global Climate Change, Vehicle Greenhouse Gas Emissions Standards, available at http://www.pewclimate.org/what_s_being_done/ in_the_states/vehicle_ghg_standard.cfm (last visited May 11, 2008). This covers over one-third of the new car market. See Berman, supra note 76.
78. See, e.g., Alex Kaplun, Energy Policy: White House Fuels Plan Not Likely to Alter Congressional Agenda, ENV'T & ENERGY DAILY, May 15, 2007.
79. E.g., THE FEDERALIST NO. 51 (James Madison) (the rights of the people are best protected in a system in which federal and state governments control each other); Evan H. Caminker, Judicial Solicitude for State Dignity, ANNALS AM. ACAD. POL. & SOC. SCI., Mar. 2001, at 81, 89 (noting the argument that the existence of states serves as a check against the excessive assertion of power by Congress). 80 See generally Robert Schapiro, Polyphonic Federalism: State Constitutions in the Federal Courts, 87 CAL. L. REV. 1409 (1999); Hills, supra note 64, at 2-3.
80. See, e.g., Kirsten H. Engel, Harnessing the Benefits of Dynamic Federalism in Environmental Law, 56 EMORY L.J. 159, 163 (2006) ("[States can] 'check' the interest group capture of policymakers at the federal level.").
81. See Hills, supra note 64, at 2-3; Schapiro, supra note 80; cf. Erwin Chemerinsky, Empowering States: The Need to Limit Federal Preemption, 33 PEPP. L. REV. 69, 74 (2005) ("The genius in having multiple levels of government is that if one fails to act, another can step in to solve the problem."); Engel, supra note 81, at 168-69.
82. See Mendelson, supra note 15, at 755.
83. See 42 U.S.C. 300g-1(b)(4)(A) (2000).
84. See Citizens to Preserve Overtoil Park, Inc. v. Volpe, 401 U.S. 402, 416-17 (1971).
85. 33 U.S.C. § 1314(b)(4)(B) (2000).
86. 42 U.S.C. § 7409(b)(1) (2000). That reconciling a multiplicity of goals can increase, rather than reduce, an agency's discretion was recognized by the D.C. Circuit. E.g., Int'l Union v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994) (looking at safety and feasibility does not adequately "cabin[] the agency's discretion" for nondelegation doctrine purposes).
87. See 33 U.S.C. § 1251(a) (2000) ("The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters . . . . [I]t is the national goal that the discharge of pollutants into the navigable waters [is to] be eliminated by 1985 . . . .").
88. Cf. id. (mentioning neither cost nor flexibility).
89. E.g., 21 U.S.C. § 342(a) (2000) (defining adulterated food, which can be the subject of FDA enforcement, as bearing any "poisonous or deleterious substance which may render it injurious to health").
90. 29 U.S.C. § 652(8) (2000) (emphasis added).
91. Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 475-76 (2001) (noting that the standard requires protection "not lower or higher than is necessary").
92. See supra text accompanying notes 28-51.
93. 529 U.S. 861 (2000). See also Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341 (2001). In Buckman, the Supreme Court found a state law claim based on fraud-on-the-FDA to be preempted in part because it might interfere with the FDA's ability to take a "measured" response to monitoring the information filed with the agency. Id. at 349-53.
94. Geirer, 529 U.S. at 881-82.
95. The relevant savings clause appears at 15 U.S.C. § 1397(k) (2000) and states that "[c]ompliance [with the federal standard] 'does not exempt any person from any liability under common law.'"
96. E.g., ABC News, Dangerous Lead Levels Found in Some Garden Hoses, July 12, 2007, available at http://abcnews.go.com/GMA/ Consumer/story?id=3369894; see also Louise Story, Lead Paint Prompts Mattel to Recall 967,000 Toys, N.Y. TIMES, Aug. 2, 2007, at C1 (describing manufacturer's voluntary recall).
97. See, e.g., News Release, Center for Environmental Health, Lawsuit Wins Protection for Children from Lead Risks in Garden Hoses (Aug. 9, 2004), http://www.cehca.org/news.htm.
98. See Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products, 71 Fed. Reg. 3922, 3930-31 (Jan. 24, 2006) (codified at 21 C.F.R. pts. 201, 314, 601 (2007)).
99. The FDA's goal of avoiding misbranding, which it also identified, does not justify implied preemption. While false labeling claims surely are to be avoided, they are already prohibited by federal misbranding requirements. To the extent state tort law or state labeling requirements could be understood to require misbranding, they would be preempted in any event as directly conflicting with federal law.
100. See Federal Motor Vehicle Safety Standards; Roof Crush Resistance, 70 Fed. Reg. 49,223, 49,245-46 (Aug. 23, 2005) (proposed rule).
101. See Chemical Facility Anti-Terrorism Standards, 71 Fed. Reg. 78,276, 78,293 (Dec. 28, 2006) (proposed rule) ("A state measure frustrating this balance [between security and flexibility] will be preempted."). The final rule was less explicit, but still preserved the Department's ability to make future arguments of this type. Chemical Facility Anti-Terrorism Standards, 72 Fed. Reg. 17,688, 17,727 (Apr. 9, 2007) (to be codified at 6 C.F.R. pt. 27) (final rule).
102. Cf. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (vacating a Transportation Department decision for failure to consider options developed in earlier rulemaking documents).
103. See supra text accompanying notes 94-96.
104. See also Robert R. Gasaway, The Problem of Federal Preemption, 33 PEPP. L. REV. 25, 36 (2005) (arguing that courts should find obstacle preemption of state law when the state law upsets a "delicate federal balance" set by Congress or by federal regulators in ratemaking, labor, and pharmaceutical cases).
105. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (citations omitted).
106. See supra notes 72-82 and accompanying text.
107. See supra notes 72-82; see also Hills, supra note 64.
108. See generally William Buzbee, Asymmetrical Preemption: Risk, Regulation, and the Floor/Ceiling Question, 82 N.Y.U. L. REV. 1547 (2007) (arguing that while floor preemption still allows states to respond to poor federal regulatory decisions, complete preemption eliminates the states' ability to respond).
109. See supra note 3 (noting that Michigan challenged the agency's position directly, and the other forty-nine states' attorneys general filed amicus briefs).
110. E.g., In re Stock Exchs. Options Trading Antitrust Litig., 317 F.3d 134, 149-50 (2d Cir. 2003) (declining to defer, under Chevron, to agency views on implied repeal); cf. Tyler v. United States, 929 F.2d 451, 456 (9th Cir. 1991) (declining to defer to an agency interpretation that would work an implied repeal); Monongahela Power Co. v. Alexander, 507 F. Supp. 385, 392 (D.D.C. 1980) (holding that the Army Corps lacked jurisdiction to act under section 404 of the Clean Water Act because the Clean Water Act did not impliedly repeal the Federal Power Commission Act).
111. See, e.g., Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 172 (2001) ("Where an administrative interpretation of a statute invokes the outer limits of Congress'[s] power, we expect a clear indication that Congress intended that result.").
112. Id.
113. See United States v. Vogel Fertilizer Co., 455 U.S. 16, 24 (1982) (noting that for a regulation relying only on general authority to '"prescribe all needful rules' . . . . [,] 'we owe the interpretation less deference than a regulation issued under a specific grant of authority to define a statutory term or prescribe a method of executing a statutory provision'" (quoting 26 U.S.C. § 7805(a) (2000); Rowan Cos., Inc. v. United States, 452 U.S. 247, 253 (1981))); see also Chrysler Corp. v. Brown, 441 U.S. 281, 309 (1979).
114. Cf. Hills, supra note 64, at 28 ("Any default rule, whether in favor of or against preemption, might create incentives for the interest groups hurt by the rule to reverse it in Congress.").
115. See Mendelson, supra note 15, at 769-77.
116. See id. at 777-78.
117. E.g., Hearings on Regulatory Preemption: Are Federal Agencies Usurping Congressional and State Authority Before the Sen. Comm. on the Judiciary, 110th Cong. (2007), available at http://judiciary.senate.gov/hearing.cfm? id=2935 [hereinafter Hearings] (statement of Sen. Patrick Leahy) (calling administrative preemption "little known").
118. Perhaps reflecting the lack of consensus on the Department's preemption authority, the legislative history contains equally opposing statements from individual members of Congress. See, e.g., 152 CONG. REC. H7967 (daily ed. Sept. 29, 2006) (statement of Rep. Sabo) ("The intention is not to preempt the ability of the States."); 152 CONG. REC. S10,619 (daily ed. Sept. 29, 2006) (statement of Sen. Voinovich) ("I feel strongly that this provision sets that uniform set of rules and in so doing, impliedly preempts further regulation by State rules or laws.").
119. The final rule, of course, maintained the Department's claim to authority to preempt state law. See Chemical Facility Anti-Terrorism Standards, 72 Fed. Reg. 17,688, 17,727 (Apr. 9, 2007) (to be codified at 6 C.F.R. pt. 27) (final rule). Again, Congress revised the rule by statute. See supra note 7.
120. I argued in Chevron and Preemption that despite Congress's regional structure, the political incentive of agencies - supervised, as they are, by the only nationally elected officials in the federal govemment - to take federalism issues into account is not distinctively poorer than Congress and might, in some respects, be superior. For reasons of institutional competence and expertise, however, I nonetheless conclude that Chevron deference should not be available for agency interpretations of a statute's preemptive scope. See Mendelson, supra note 15, at 779-90.
121. For example, there are strong reasons for federal minimum standards in the environmental area, such as the prospect of interstate effects and the possibility that states may "race to the bottom" to attract new business. And state law preemption may be warranted when, for example, high capital costs make it prohibitively expensive for an industry to comply with multiple design standards. Federal motor vehicle safety standards are expressly exclusive; states generally have no authority to set different standards.
122. See Mendelson, supra note 15, at 780-82 (also noting that agencies typically do not look for employees with general knowledge of governmental structure).
123. See U.S. GEN. ACCOUNTING OFFICE, FEDERALISM: IMPLEMENTATION OF EXECUTIVE ORDER 12612 IN THE RULEMAKING PROCESS 1 (May 5, 1999), available at http://www.gao.gov/archive/1999/gg99093t.pdf.
124. See Mendelson, supra note 15, at 783-85.
125. The document concerned credentials for transportation workers in industries handling hazardous materials. See Transportation Worker Identification Credential (TWIC) Implementation in the Maritime Sector; Hazardous Materials Endorsement for a Commercial Drivers' License, 71 Fed. Reg. 29,396 (May 22, 2006) (proposed rule). The Department later decided not to preempt state law. See Transportation Worker Identification Credential (TWIC) Implementation in the Maritime Sector; Hazardous Materials Endorsement for a Commercial Drivers' License, 72 Fed. Reg. 3492, 3575-76 (Jan. 25, 2007) (to be codified in scattered sections of C.F.R.) (final rule).
126. See Health Claims; Soluble Dietary Fiber from Certain Foods and Coronary Heart Disease, 71 Fed. Reg. 29,248, 29,250 (May 22, 2006) (codified at 21 C.F.R. pt. 101 (2007)); Hazardous Materials Endorsement for a Commercial Drivers' License, 71 Fed. Reg. at 29,436; Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan (ALWTRP), 71 Fed. Reg. 26,702,26,704 (May 8, 2006) (temporary rule).
127. Hearings, supra note 118 (testimony of Rep. Donna Stone, President, National Conference of State Legislatures).
128. See supra text accompanying notes 42-46.
129. See Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products, 71 Fed. Reg. 3922, 3969 (Jan. 24, 2006) (codified at 21 C.F.R. pts. 201, 314, 601 (2007)).
130. The FDA noted that states had not commented on the proposed rule document, but that document contained no agency position that state tort law would be preempted. See id.
131. See, e.g., Hearings, supra note 118, at 7 n. 13 (testimony of Prof. David Vladeck); see Requirements on Content and Format of Labeling for Human Prescription Drugs and Biological Products, 65 Fed. Reg. 81,082, 81,103 (Dec. 22, 2000) (proposed rule).
132. See Hearings, supra note 118 (testimony of Rep. Donna Stone, President, National Conference of State Legislatures).
133. See U.S. HOUSE OF REPRESENTATIVES, SPECIAL INVESTIGATIONS DIV., PRESCRIPTION FOR HARM: THE DECLINE IN FDA ENFORCEMENT ACTIVITY (2006).
134. SEE U.S. GOV'T ACCOUNTABILITY OFFICE, DRUG SAFETY: IMPROVEMENT NEEDED IN FDA'S POSTMARKET DECISION-MAKING AND OVERSIGHT PROCESS (2006).
135. The nonprofit Public Citizen has argued that the FDA has inappropriately approved several drugs or failed to withdraw them from the market promptly. See Public Citizen, FDA Fails to Protect Americans from Dangerous Drugs & Unsafe Food, Watchdog Groups Say (June 27, 2006), http://www.citizen.org/ pressroom/release.cfm?ID=2227; see also Hearings, supra note 118, at 11-15 (testimony of Prof. David Vladeck) (discussing shortcomings in the FDA's program).
136. See Democrats Oppose DHS Plan to Preempt State Chemical Security Rules, ENVTL. POL'Y ALERT, Jan. 17, 2007.
137. See Chemical Facility Anti-Terrorism Standards, 71 Fed. Reg. 78,276, 78,292 (Dec. 28, 2006) (proposed rule).
138. Id.
139. See supra note 5.
140. See Chemical Facility Anti-Terrorism Standards, 72 Fed. Reg. 17,688, 17,726-28 (Apr. 9, 2007) (to be codified at 6 C.F.R. pt. 27) (final rule) (containing federalism impact analysis, but not discussing either particular state interests or more general state interests in maintaining regulatory autonomy).
141. SEE U.S. GOV'T ACCOUNTABILITY OFFICE, OCC PREEMPTION RULEMAKING: OPPORTUNITIES EXISTED TO ENHANCE THE CONSULTATIVE PROCESS AND BETTER DOCUMENT THE RULEMAKING PROCESS 19-20 (2005).
142. See supra note 11 and accompanying text (referencing 49 U.S.C. § 5125(d) (2000)).
143. This argument builds on the position I took earlier in Chevron and Preemption, Mendelson, supra note 15, at 794-97. In that article, I argued that self-interest weakly weighs against giving Chevron deference to an agency interpretation of preemptive statutory language.
144. Arthur Wilmarth has made this argument with respect to the OCC's efforts to preempt state laws that might apply to national banks. See Wilmarth, supra note 37, at 295 (arguing against application of Chevron deference).
145. See Buzbee, supra note 109, at 1596-97 & nn.170-71 (discussing "experimentalist" approaches that can minimize regulatory pathologies).
146. Cf. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (vacating a Transportation Department decision for failure to consider options developed in earlier rulemaking documents).
147. See 5 U.S.C. § 706 (2000).
148. Cf. Nat'l Coalition Against Misuse of Pesticides v. Thomas, 809 F.2d 875, 877-78 (D.C. Cir. 1987) (overturning the EPA's setting for pesticide tolerance in mangoes due to its reliance on the irrelevant factor of the health of foreign economies).
149. See Mendelson, supra note 15, at 791-94.
150. See Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 HARV. L. REV. 1276, 1284 (1984) (observing that various models of administrative agencies are aimed at characterizing bureaucracies as being "under control").
151. See Nina A. Mendelson, Agency Burrowing: Entrenching Policies and Personnel Before a New President Arrives, 78 N.Y.U. L. REV. 557, 570-71 (2003) (discussing the ad hoc nature of congressional oversight).
152. Indeed, a flat delegation of authority to an agency to preempt state law without guidance could under some circumstances be unconstitutional as an invalid delegation of legislative power. See generally Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 472 (2001) (discussing "intelligible principle" required to find valid delegation). Even if the nondelegation doctrine poses no bar, the presence of preemption authority likely would motivate state organizations to seek specific criteria to guide and limit agency decisions.
153. Surrick v. Killion, 449 F.3d 520 (3d Cir. 2006).
154. Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry, 476 F.3d 326 (5th Cir. 2007).
155. One could, in theory, argue that some statutes privilege multiple primary goals. Suppose some of the banking statutes have the purposes of both protecting consumers and preserving financial market liquidity. If so, an agency might have greater latitude to "balance" those goals and preempt state law that strikes a different approach. Such a regime still would be problematic, however, because of the lack of statutory guidance addressing the importance to be placed upon state regulatory autonomy.