Monday, October 4, 2010
Guest Blogger Catherine Sharkey on "The Politics of Preemption: NHTSA, State Tort Law & Automobile Safety"
Today's guest blogger is Catherine M. Sharkey, Professor of Law at New York University School of Law.
The Politics of Preemption: NHTSA, State Tort Law & Automobile Safety
Today, the first Monday in October, marks the beginning of the U.S. Supreme Court 2010 Term. This Term, the Court, after a year’s hiatus, is getting back into the game of federal preemption.
In Williamson v. Mazda Motor of America, Inc., all eyes should be on Justice Stephen Breyer. Williamson is revisiting the scope of implied conflict preemption under the National Traffic and Motor Vehicle Safety Act of 1966 [Safety Act] as announced in 2000 by Justice Breyer in Geier v. American Honda Motor Co. The plaintiff in Geier, injured in an automobile accident, alleged that Honda negligently and defectively designed her vehicle because it was not equipped with airbags in addition to seatbelts. The defendant, Honda, complied with Federal Motor Vehicle Safety Standard [FMVSS] 208 promulgated by the National Highway Traffic Safety Administration [NHTSA] that gave automobile manufacturers a range of choices among different passive restraint devices.
NHTSA argued in an amicus brief before the U.S. Supreme Court in Geier that allowing the state tort claims to proceed would interfere with the federal regulatory policy intended to provide a menu of options to automobile manufacturers—a policy designed, in part, to stimulate industry experimentation. Convinced that “the agency’s own views should make a difference,” Justice Breyer’s majority opinion gave “some weight” to the agency’s view. In a 5-4 decision, the Court held that, notwithstanding the fact that the Safety Act directed the agency to promulgate “minimum” safety standards and the fact that the Act also included an express “savings” clause that seemed to preserve common law liability, Alexis Geier’s state law claims were impliedly preempted (though they were not expressly preempted by the Act).
Ten years later, the preemptive force of the Safety Act and NHTSA’s FMVSS 208 safety regulation is back before the U.S. Supreme Court. Ms. Williamson, riding in the back middle seat of a Mazda minivan, was killed in an automobile accident. Her estate and survivors allege Mazda negligently designed the minivan because the back middle seat where Ms. Williamson was seated had a lap seatbelt only, as opposed to the lap and shoulder belts equipped in the front and back side seats. Like the Honda in Geier, the Mazda complied with FMVSS 208, which allowed manufacturers to install either lap or lap/shoulder belts in all non-outboard seating positions. The trial court sustained Mazda’s preemption defense; the California state appellate court affirmed, holding that the policy concerns of testing multiple forms of passive restraints (e.g. airbags) that led to preemption in Geier also applied to seatbelts; and the California Supreme Court declined to review the case. Given the lack of disagreement among lower courts—which overwhelmingly have concurred with the California appellate court’s interpretation of Geier—the U.S. Supreme Court’s grant of certiorari came as somewhat of a surprise.
What has changed in the decade since Geier?
(1) Wyeth v. Levine: In October Term 2008, the Court decided Wyeth v. Levine, which narrowed the range of implied preemption. The Court held that the Food and Drug Administration’s (FDA) premarket approval of a pharmaceutical drug’s labeling did not preempt the injured patient’s failure to warn state tort claim. In a 6-3 decision penned by Justice Stevens, the Court rejected Wyeth’s arguments based upon two categories of implied preemption: (1) impossibility, i.e., that Wyeth could not comply with the state law duty to revise its labeling without violating federal law; and (2) obstacle, i.e., that state tort law obstructs the purposes and objectives of the federal drug labeling regulatory regime. The Wyeth majority castigated the FDA for its about-face of its longstanding position and proclaiming preemption of state tort law in a preamble to a drug labeling rule, which evaded the notice-and-comment process under the Administrative Procedure Act, whereby states and other affected entities can participate and voice their concerns. For this reason, the Court was not prepared to defer to the FDA’s pro-preemption view.
(2) Obama Administration: In May 2009, President Obama issued a Presidential Memorandum on Preemption, which outlined the new Administration’s policy that “preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.” More concretely, echoing the Supreme Court’s reprimand of the FDA in Wyeth, President Obama directed federal agencies to cease the practice of “preemption by preamble.” The Memorandum signaled a political shift, with the new Administration distancing itself from the prior pro-preemption, anti-tort law position of the previous administration.
(3) NHTSA’s position: Whereas NHTSA argued in favor of preemption in Geier, it has adopted a decidedly anti-preemption position in its amicus brief in Williamson. Since Geier, according to NHTSA, lower courts around the country have misinterpreted the case to find that any time NHTSA gives manufacturers different options to satisfy a safety standard, state tort law is preempted. NHTSA claims that in Williamson (unlike in Geier) there is no federal policy to affirmatively encourage diverse forms of seatbelts. And, according to NHTSA, the agency’s “longstanding” position has been that NHTSA standards do not generally preempt state tort law, aside from relatively rare situations, as in Geier, where the agency’s affirmative policy presents an outright conflict. NHTSA proposes a standard whereby courts should defer to its judgment when it states that a rule does not have preemptive effect.
(4) Composition of the Supreme Court: The vociferous dissent in Geier was written by then-Justice Stevens, joined by then-Justice Souter, and Justices Thomas and Ginsburg. The Geier dissenters formed the majority in Wyeth. The Wyeth dissenters (Justice Alito, joined by Chief Justice Roberts and Justice Scalia) are likely to stand by their more expansive reading of Geier in Williamson. Justice Kagan—who has replaced Justice Stevens, the staunchest torch bearer for the anti-preemption position on the Court—has recused herself, setting up the possibility of an even 4-4 split. There is some uncertainty with respect to the positions of Justice Kennedy (who joined the majorities in Geier and in Wyeth) and Justice Sotomayor (who replaced Justice Souter). But, to my mind, the pivotal Justice to watch is Justice Breyer, who authored the Geier majority. Justice Breyer joined the Wyeth majority, but concurred separately to emphasize that agency regulations with “force of law” (unlike the FDA preemption preamble) can impliedly preempt state law.
My prediction? Williamson will narrow the reach of Geier implied obstacle preemption, but will not sound the death knell entirely—much to Justice Thomas’ chagrin. Justice Breyer (and the Court) is likely to defer to NHTSA’s “expert” view on whether state tort law impedes federal regulatory policy where there has been notice-and-comment rulemaking and where the agency’s position is consistent and longstanding. Williamson will then be a further data point for my claim that reliance on agencies’ views in regulatory preemption cases has been a staple of Supreme Court jurisprudence. What is missing thus far—and what is needed to guard against agency political flip-flop with each Administration’s change of view on implied preemption and state tort law—is a coherent framework for the level of deference to accord to agency positions on preemption, coupled with heightened judicial scrutiny of the agency’s regulatory record that supports its position.
- Catherine M. Sharkey
Professor of Law
New York University School of Law