CPR Scholar/Authors Discuss Their New Books on Federal Preemption

Within the last 45 days, CPR Member Scholars have published two books focused on the question of federal preemption. The issue has arisen in two forms in recent years. During the Bush Administration, various regulatory agencies of the federal government – with leadership from Bush appointees – sought to use federal regulations to undercut citizens’ right to sue under state tort laws for damages resulting from industry irresponsibility. At the same time, Congress has inched slowly toward climate change legislation that could preempt – which is to say, undo – state and local action on climate change.  Of course, in the glaring absence of federal action, state and local measures are the only real action on climate change by U.S. governments to date. (Read more on regulatory preemption here, and more on climate change preemption here.

Both sets of preemption efforts have touched off significant legal and policy battles. On the agency preemption front, environmental, health and safety advocates have argued that preemption of state tort laws is not generally supported by federal statutes, and that it makes bad policy. On climate change, progressives argue that state and local action is critical to battling climate change going forward -- even after the federal government acts, and that industry efforts to use a federal bill to undo what progress has already been made by state and local government is unwise.

Those issues and much more are discussed in the two new books. Thomas McGarity has written The Preemption War: When Federal Bureaucracies Trump Local Juries, published by Yale University Press. William Buzbee has edited Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question, published by Cambridge University Press and featuring chapter contributions from 15 experts, including Buzbee and McGarity, as well as a number of other CPR Member Scholars.

We asked Professors McGarity and Buzbee to discuss the books and the issue, and the resulting conversation will span several blog entries over the next week. Here’s the first part of the conversation:

Why is the preemption issue so important that the two of you are both penning books on the subject?

Professor Buzbee: The nature and extent of federal assertions of preemptive power and impact, and growing industry embrace of preemptive federal law to avoid regulatory and common law burdens, have both substantially changed in the past three years. Both of our books illuminate the nature and importance of these changes that threaten citizens and states. The changing face of preemption claims also increases the likelihood that environmental harms and other risks will not be addressed effectively.

The allocation of powers between the federal government and the states, commonly referred to as federalism, is always important under our constitutional system. Federal preemption of state law is constitutionally permissible under our Constitution's Supremacy Clause. Due to preemption's displacement of additional and possibly different state laws and priorities, it frequently engenders conflict. For several decades, however, federal preemption of states by express legislative or regulatory action was rare and, when asserted, limited in scope. If federal law was preemptive, it tended only to displace more lax state law, or make federal law preemptive where federal and state law would directly clash or lead to production inefficiencies. In practice, most federal political choices to preempt thus left states latitude to be more protective of their citizens.

The impetus for the Preemption Choice book was a quite sudden shift in federal executive branch policy starting in 2005 and 2006. An array of federal agencies, in regulatory statements and sometimes court filings, began to assert that federal approvals under various statutes preempted any additional state regulation of a subject or risk. These assertions of preemptive power and impact included claims that federal law preempted state common law. Such assertions of preemptive impact thus could leave injured citizens without a remedy, plus information often elicited through common law litigation would no longer be produced. In courts, industry claimed preemptive impact of federal actions, leading to a roller coaster series of Supreme Court and lower court decisions sometimes confirming preemptive effect, but other times preserving state domain.

If all of this weren't enough to make it a hot topic, debates over climate change and terrorist risks both led to calls for federal law completely to preempt states from sharing federal turf. With a federal government moving slowly, if at all, on climate change, displacing states would further leave the United States behind the rest of the world on climate change. In addition, state efforts to address climate change have already engendered diverse and creative strategies, revealing what sorts of strategies work, and also softened industry's resistance to legal efforts to address climate change. I and other scholars working on the "Preemption Choice" book were eager to enrich preemption discourse to address these pressing and often unprecedented assertions of federal power.

Professor McGarity responds: I could not agree more with Bill’s analysis of the importance of the preemption issue. He rightly points out that principles of federalism embedded in the Supremacy Clause and 230-plus years of history demand respect on the part of the federal government for states as decisionmakers.

At the same time, the federal government can serve as an important check on the tendency of state governments to "race-to-the-bottom" by reducing health, safety and environmental protections in order to attract or retain politically powerful companies. It is for this reason that most environmental statutes contain express preemption clauses that provide for "floor" preemption.

Under that approach, the states may regulate more stringently than federal agencies, but not less stringently. Thus, under the Clean Air Act, states like California and Connecticut have promulgate more stringent air quality standards than the National Ambient Air Quality Standards promulgated by the federal Environmental Protection Agency, but the less stringent standards in other states are superseded by the federal standards.

I have always found that this asymmetrical approach works well, even though it allows for a degree of non-uniformity. The loss in uniformity and state sovereignty, in this instance, is well worth the gain in protection provided to all U.S. citizens.