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Federal preemption, falling away in the motor vehicle safety bill



The House Energy and Commerce Committee, chaired by Rep. Henry Waxman (D-CA), has today been marking up H.R. 5381, the Motor Vehicle Safety Act. Waxman's manager's amendment adds in language (see the extended entry) that would end federal preemption for motor vehicle safety regulations. Not only would future National Highway Traffic Safety Administration rules be affected, the anti-preemption language would apply to everything NHTSA promulgated since 2005.

An effort by Rep. Roy Blunt (R-MO) to strip out the preemption language was defeated, 28-18, on a partyline vote, the Democrats winning the vote.

The amendment had circulated at the subcommittee level, but was not offered, by Rep. Bruce Braley (D-IA), a trial lawyer who formerly headed the Iowa Trial Lawyers Association. (See earlier POL post.)

The Waxman amendment did not include Braley's original language to expand liability for car rental and leasing companies (revoking the Graves Act).

UPDATE (2:30 p.m.): The Energy and Commerce Committee just reported out the bill on a 31-21 vote. Really a trial lawyer bonanza, and for more than just the preemption language.

UPDATE (2:55 p.m.): Why make 2005 the year that retroactivity extends to? The American Association of Justice, which works diligently against federal preemption, identifes the following in its timeline, "The Evolution of Unauthorized Agency Preemption":

June 22, 2005 - The National Highway Traffic Safety Administration (NHTSA) issues a proposed rule regarding designated seating position that contains NHTSA's first attempt to broadly preempt state common law claims. This rule went largely unnoticed by the public. 70 Fed. Reg. at 36101-02.

August 19, 2005 - NHTSA issues a proposed rule on roof crush strength with a weak standard and a preamble that explicitly preempts all state law requirements and state tort law. 70 Fed. Reg. at 49223.

August 19, 2005 - NHTSA issues a proposed rule for average fuel economy standards for light trucks for 2008-11 with brief express and implied preemption language. 70 Fed. Reg. at 51457.

September 12, 2005 - NHTSA issues a proposed rule regarding rearview mirrors which seeks to preempt all state statutes, regulations, and common law. 70 Fed. Reg. at 53768-69.


TITLE V--ADDITIONAL PROVISIONS
SEC. 501. PREEMPTION OF STATE LAW.
(a) CONGRESSIONAL AUTHORIZATION REQUIRED.--
Notwithstanding any other provision of law, the Secretary shall not publish a rule pursuant to section 30111 of title 49, United States Code, that addresses the issue of preemption of State law seeking damages for personal injury, death, or property damage unless Congress expressly authorizes the Secretary to address such preemption.

(b) PREEMPTION LANGUAGE.--Any language addressing the issue of preemption contained within regulations issued by the Secretary pursuant to section 30111
of title 49, United States Code, during the years 2005 through 2008 shall not be considered in determining whether any such rule preempts any action under State law seeking damages for personal injury, death, or property damage unless Congress expressly authorizes the Secreretary to address such preemption.

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Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.