Preemption Alert updated (7/31/06)

Protecting Strong State Environment and Consumer Protection Laws
States have long been the laboratories for innovative public policy, particularly in the realm of environmental and consumer protection. State and local legislatures, smaller and often more nimble than the federal government, can develop and test novel policies to address problems identified by local constituents. If a certain policy works, other states can try it. If the policy fails, the state or local government can quickly modify the policy without having affected residents in all 50 states. Success at the state level then often gives rise to federal policy.

Since the time of the Constitutional Convention, politicians and academics have vigorously debated the balance of power between state and federal governments and when states are allowed to exercise their authority over the federal government. The contemporary debate about the rights of states vis-à-vis the federal government, however, has little to do with which level of government best serves the people and more about how those in power-particularly at the federal level-can advance the agenda of the special interests that helped elect them to office.

When considering federal policy that could conflict with state policy, Congress and the Bush administration have to choose between establishing federal policy as the minimum protection or "floor," allowing states to enact stronger legislation to supplement that minimum standard, or as the "ceiling," in effect establishing maximum requirements that states cannot supersede. When corporate campaign contributors are faced with strong consumer and environmental protections at the state level, Congress and the Bush administration often call for "uniform" national regulations that trump state law and set an artificial ceiling.

Over the last three decades, as special interests have become more effective at blocking progressive reform at the federal level, states have become more active in passing strong laws to protect the health, safety, and financial well-being of their residents. This state initiative has given rise to a disturbing and growing trend: the increasing willingness of the federal government to preempt the right of states to enact stronger laws to safeguard their citizens. The states are now victims of their own success.

Far from being simply theoretical, this debate has real-world consequences. Just in the last few years, we have seen the federal government trump state laws on issues ranging from privacy to prescription drugs to air pollution, always with negative consequences for the public interest. For example:

- Automakers, engine manufacturers, oil companies, and other industry groups have long challenged the right of California to adopt stronger emission standards as well as other states' authority to opt in to those standards. In January 2004, industry was successful in weakening states' ability to protect their residents from mobile sources of air pollution for the first time in the Clean Air Act's 35-year history. The law now prohibits states from opting in to California's more protective emission standards for small and mid-sized spark-ignition engines, such as those used in lawn and garden equipment, forklifts, and recreational boats. Industry groups have said next they will try to eliminate states' mobile source authority altogether.

- Congress has passed legislation preempting the right of states to pass credit accuracy and privacy laws that are stronger than federal law. At the center of the debate is a strong privacy law passed by California State Senator Jackie Speier that went into effect on July 1, 2004. Ultimately, the courts will decide if federal law preempts this California policy-which would close the door for other states to follow California's lead.

- In January 2004, the Office of the Comptroller of the Currency (OCC) issued a sweeping rule that would prevent most state consumer protection laws from applying to nationally chartered banks. This likely will dissuade any state legislator or regulator from acting to impose rules on state entities stronger than those imposed by OCC on their primary competitors, national banks.

These and other efforts to limit states' rights weaken the framework that has helped clean up the environment and protect consumers for the last 30 years. Federal law helps set a minimum standard of well-being that all Americans have the right to enjoy. But not all states' environmental problems are the same, and not all states' consumers face the same challenges in the marketplace; therefore, not all solutions are going to be the same. Moreover, federal law may be inadequate all around. Giving states the right to go above and beyond federal requirements--without hitting an artificial ceiling-is essential to protect the environment and consumers in the short run and ensure adequate federal standards for everyone in the long run.

Preemption Alert
Issue 4, August 2006
Issue 3, April 2006
Issue 2, March 2006
Issue 1, February 2006

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Reports and Analyses
Power to Protect: The Critical Role States Play in Cleaning Up Pollution from Mobile Sources, June 2005

Tying the Hands of States: The Impact of Federal Preemption on State Problem-Solvers, July 2004

The Politics Of Preemption: The Role Of State And Federal Government In Environmental And Consumer Protection Under The Bush Administration, October 2003

Articles
"A Stealth Attack On Strong Public Interest Protections: Powerful special interests are persuading Congress and the White House to impose federal law while wiping out the states' ability to pass stronger standards." Letter to members from U.S. PIRG Executive Director Gene Karpinski, Winter 2004 Issue, U.S. PIRG Citizen Agenda

"Preemption Of State Consumer Laws: Federal Interference Is A Market Failure," written by Ed Mierzwinski, U.S. PIRG, for the Government, Law and Policy Journal, New York State Bar Association, Spring 2004 (Vol. 6, No. 1, pgs. 6-12).

"The State's Rights Principle," an opinion piece by U.S. PIRG Executive Director Gene Karpinski printed in TomPaine.com, Fall 2003

Fact Sheets
Energy Bill Usurps States Rights, April 2005

Federal Preemption of Stronger State Consumer and Public Health Protections: Examples of Upcoming Battles, March 2005