Federal Preemption: A Brief Overview

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Brittney Melton
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Bellon, Assistant Attorney General Ecology Division

1 Federal Preemption: A Brief Overview 10 th Annual Harbor Safety Committee Conference May 13, 2008 Maia D. Bellon, Assistant Attorney General Ecology Division Washington Attorney General s Office (with assistance from Phil Ferester, AAG)

2 What Does Preemption Mean? The notion of preemption derives from the Supremacy Clause of the U.S. Constitution (key language: federal law shall be the supreme law of the land ). Federal preemption generally refers to the balance of federal/state authority in a particular area of the law. By operation of the Supremacy Clause of the U.S. Constitution, federal law may prevent a state from enacting a law or administrative rule that conflicts with the operation of a federal law or a federal rule.

3 Key Preemption Considerations The key issue for courts considering preemption claims: What did Congress intend? Preemption can be express or implied. Express preemption exists when Congress enacts legislation on a subject matter and expressly says the federal law shall be controlling over state laws and/or preclude the state from enacting laws on the same subject. Implied preemption exists if a court finds from various circumstances that federal law still preempts state law, even if Congress did not say so expressly.

4 Legal Analysis of Preemption Main emphasis: determining Congressional intent. Express preemption: the only analysis is whether the state law or regulation is one that Congress intended to preempt. If so, state law is preempted. Implied Preemption: Courts consider several factors in determining Congress intent such as: the comprehensiveness of the federal regulatory scheme the federal interests at stake and the need for uniformity the history and nature of state regulation in the area of law legislative history

5 Legal Analysis of Preemption The factors listed on the previous slide for implied preemption lead to two analytical categories Field Preemption: in this type of implied preemption analysis, the court finds Congress intended to occupy a field of law, so as to imply an intent to preempt all state regulation of that field. Conflict Preemption: for all other implied preemption cases, courts inquire whether federal and state laws actually conflict; i.e., is compliance with both laws impossible, or would compliance with the state law stand as an obstacle to the accomplishment of the full purposes and objectives of Congress? If so, there s a conflict, and preemption of the state law results.

6 Federal Court Decisions Ray v. Atlantic Richfield Corp, 435 U.S. 151 (1978). Four justices wrote a majority opinion, three wrote a concurring/dissenting opinion, and two wrote a separate concurring/dissenting opinion. The case sorted the PWSA s two titles for purposes of legal analysis state laws in areas covered by Title I that concern the peculiarities of local water are governed by conflict preemption analysis; however, state laws in areas covered by Title II are governed by field preemption analysis. The Court let stand state requirements regarding the use of tug escorts under Title I of PWSA, as long as they did not conflict with USCG rules. The Court struck down state tanker design requirements (double hull, twin screws, shaft horsepower, twin radars, etc.), and a 125,000 DWT limit, as field preempted under Title II of PWSA.

7 Federal Court Decisions United States v. Locke (a.k.a. Interkanko ), 529 U.S. 89 (2000). Unanimous Supreme Court decision (9-0). Court followed analytical framework of Ray, but restated the tests. The Court also set forth an analysis for matters that could fall under either PWSA Title I or Title II, to determine whether conflict or field preemption analysis applied. All of the state s laws discussed in the opinion were field preempted under PWSA Title II -- The State of Washington has enacted legislation in an area where the federal interest has been manifest since the beginning of our Republic and is now well-established. 529 U.S. at 99. Only the federal government (i.e. the USCG) may regulate the design, construction, alteration, repair, maintenance, operation, equipment, personnel qualifications, and manning of tanker vessels. 529 U.S. at 111. Specific subjects of state rules found preempted: training and drill requirements for tanker crews (operations and personnel quals); English language proficiency requirements (personnel quals); navigation watch requirements (operations); and requirements to report marine casualties (emphasizing affect on vessel s out-of-state obligations and conduct). 529 U.S. at

8 Federal Court Decisions United States v. Massachusetts, 493 F. 3d 1 (1 st Cir. 2007). U.S. & various industry groups filed a facial challenge to Massachusetts 2004 Oil Spill Act. District Court struck down all 7 challenged aspects of MA s law. Pilotage Measures for Coastwise Vessels Personnel and Manning Requirements Tank Vessel Design or Equipment Requirements (ships not meeting federal requirements could not dock, load, or unload in MA) Drug and Alcohol Testing Requirements Tug Escorts Vessel Routing Exceptions to MA s Financial Assurance Requirements ( indirect regulation claim)

9 Federal Court Decisions United States v. Massachusetts, 493 F. 3d 1 (1 st Cir. 2007). Washington filed an amicus brief in the First Circuit, joined by ME, RI, Puerto Rico, AK, OR, & CA. The amicus brief addressed two narrow issues: Stating the appropriate conflict preemption test Addressing the financial assurance/indirect regulation claim The First Circuit reversed the District Court on all 3 appealed issues regarding: Personnel and Manning Requirements Tug Escorts Exceptions to MA s Financial Assurance Requirements

10 Federal Court Decisions United States v. Massachusetts, Round 2 (case is back in district court) United States now trying an express preemption theory, based on a new East Coast rule (72 Fed. Reg (Aug., 2007), effective Nov. 28, 2007). A new round of motions have been briefed and argued before the district court. Decision expected in the near future.

11 Summary Federal Preemption Can be express or implied Implied field preemption: no room for states to regulate Implied conflict preemption: limited room for state regulation Implications for States: Bill drafting Rule writing Policy formulation Bottom-line: state oil spill prevention initiatives can be affected by federal preemption

Case 1:05-cv JLT Document 75 Filed 07/24/2006 Page 1 of 41 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

Case 1:05-cv JLT Document 75 Filed 07/24/2006 Page 1 of 41 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Case 1:05-cv-10112-JLT Document 75 Filed 07/24/2006 Page 1 of 41 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS UNITED STATES OF AMERICA, * * Plaintiff, * * AMERICAN WATERWAYS OPERATORS * INTERNATIONAL