The citizens of Minot, North Dakota suffered a grave injustice on January 18, 2002 when a train derailment bathed much of that small town in a toxic cloud of poisonous gas that killed one person and injured almost 1,500 others. A detailed investigation by the National Transportation Safety Board concluded that the derailment was most likely caused by fractures in temporary joints that the railroad had installed to repair the track.

When the victims sued the railroad for damages caused by its negligent maintenance, they found the courthouse doors locked. A federal district court held that their claims were preempted by the Federal Railroad Safety Act (FRSA) of 1970, which contained a "preemption" clause that Congress enacted to prevent states and localities from enacting regulations that were inconsistent with the regulations issued by the Federal Railroad Administration (FRA), the federal agency that Congress created to protect citizens from irresponsible railroads.

The court held that because Congress empowered the FRA to regulate railroad safety, injured citizens could not sue the railroads when they operated their trains unsafely -- whether or not they complied with FRA requirements. Other courts have issued similar decisions in cases involving train collisions, derailments and grade-crossing accidents.

During the Bush Administration, the FRA aggressively asserted its newfound power to protect railroads by preempting state common law. A new white paper issued by the Center for Progressive Reform (which I co-authored) explores the injustice inherent in this interpretation of the statute.

Proponents of preemption argue that the FRA is fully capable of protecting U.S. citizens without the help of juries applying vague common law standards to reach potentially inconsistent results in 50 different jurisdictions. The citizens of Minot know that's not true.

The 400 inspectors working for the Federal Railroad Administration are responsible for 1.2 million rail cars operating on nearly 300,000 miles of track. In 2003, the FRA fully investigated only four of the nearly 3,000 grade-crossing accidents that occurred and imposed fines for only about 2 percent of the violations it discovered. The agency's solution to its resource problem is to rely heavily upon the railroads themselves to inspect rolling stock and track for compliance with FRA safety regulations. That puts the fox firmly in charge of the henhouse, with predictable results.

The CPR report documents how the FRA has long been thoroughly "captured" by the industry it is supposed to be regulating. High-level agency officials and industry lawyers and executives move seamlessly through the agency's rapidly revolving door.

The notion that common law is unnecessary because the FRA does such a splendid job of guarding public safety is thus a cruel joke. The victims of irresponsible railroad behavior and their families have suffered in silence. And those of us who live near railroads or frequently encounter railroad crossings are at the mercy of railroad companies that know full-well that they are unlikely to be called to account by a resource-starved federal agency.

Congress reacted to this obvious injustice in 2007 by adding a proviso to the preemption section of the FRSA stating that it did not block citizens seeking damages in cases where the plaintiff alleged that the railroad had failed to comply with a federal standard, one of its own rules, or valid state law. This specific injunction should have sent a message to the FRA and the federal courts that they were to get out of the business of preempting state common law claims when the railroad violated valid state or federal requirements or one of its own safety regulations. Yet, an FRA regulation, issued in April 2008, stated that the amendment merely established "rare" exceptions to the general rule that state common law claims were preempted.

And in the early months of the Obama administration, when the president had not yet appointed the agency's new leaders, FRA continued to write broad preemption language in the preambles to its rules. Several lower court decisions have likewise narrowly limited the amendment and have continued to hold that valid common law claims are preempted. Last May, President Obama issued a memorandum to the agencies instructing them to preempt state common law only when they have a legal basis for doing so and only when the preemption satisfies the requirements of Executive Order 13132, which expresses a policy of respect for the authority of the state agencies and courts to regulate and adjudicate.

The FRA should heed the president's orders. And it should send a message to the courts by recanting previous preemption statements, repealing language in existing regulations preempting state common law claims, including provisions in future rules preserving state common law claims, and sending amicus briefs -- vigorously defending the right of plaintiffs to sue irresponsible railroads -- to courts that are asked to dismiss cases on preemption grounds. Our safety deserves no less.

[Image via Wade From Oklahoma.]

The U.S. Supreme Court today invited the Obama administration to weigh in on a case involving San Francisco's universal health care program. The case, Golden Gate Restaurant Association v. San Francisco, involves a challenge to a key provision of San Francisco's "Healthy San Francisco" law, which requires employers to provide minimum spending on their workers' healthcare insurance. The San Francisco law was challenged by the restaurant association in federal court, arguing that the Employee Retirement Income Security Act (ERISA) preempts San Francisco from requiring employers to invest in their employee healthcare benefits. The Bush administration got involved in the case lodging briefs supporting the restaurant association's position. The U.S. Court of Appeals for the Ninth Circuit ruled in favor of the San Francisco law concluding that it was not preempted by ERISA. The restaurant association has asked the Supreme Court to hear the case.

San Francisco City Attorney Dennis J. Herrera issued a statement (above, right) on the high court's action today, urging the Obama administration to take different approach to the case.

"The Bush Labor Department's position was not simply wrong as a matter of law, it was wrong for fundamentally ignoring the urgent need for health care reform," said Herrera, a member of the ACS Board of Directors. "I am hopeful that the new administration will not take such a knee-jerk position, but will instead thoroughly review the legal and policy implications of the case."

It has been a good spring for federalism. In recent years, the doctrine of preemption has stood as a prime enemy of federalism and an obstacle to state efforts to promote health, safety and environmental protection. For that reason, President Barack Obama's May 20 memorandum limiting federal assertions of preemption comes as welcome news. That memo, along with an important Supreme Court decision in March, signals a turn away from an aggressive policy of administrative agency preemption and recognition of the value of concurrent state and federal regulatory initiatives.

The basic principle of preemption, that state laws cannot interfere with the operation of the federal government, is an important and uncontroversial feature of our constitutional system. However, over the past 25 years, preemption has become a weapon to defeat state regulations aimed at improving health and safety, as well as state tort suits seeking to compensate victims of malfeasance. Back in 1992, the United States Supreme Court issued a fractured opinion in the Cipollone case, holding that federal regulation of cigarette labeling preempted some state tort actions against tobacco companies. In the succeeding years, the Supreme Court has found that law suits relating to seat belts, medical devices and other products must be tossed out because of federal regulation in the area.

Some assertions of preemption have succeeded. Others have failed. The judicial doctrine has not been clear. In this confusing area, the position of the President and his administration has proved significant.

The administration of President George W. Bush frequently urged courts to find state suits preempted based on the theory that they posed obstacles to agency regulations. Courts would often listen. In addition to filing legal briefs, federal agencies added preemption provisions to regulatory preambles. This practice wrote the preemptive language into the Federal Register, without the need for the more formal review process normally associated with the promulgation of regulations. Commentators labeled the practice, "silent tort reform," as it had the effect of barring various state law personal injury actions without the need for explicit congressional legislation.

The new memorandum from the Obama administration should spell the end to this kind of stealth preemption. The memo declares that regulatory preambles should not include preemptive statements, unless the underlying regulation contains a preemption provision. The memo further urges caution in promulgating regulations with preemptive language. Finally, the memo orders a review of preemptive statements issued by agencies within the past 10 years. Preemption will remain an essential component of our federal system, but the memo seeks to ensure that preemption provisions reflect a transparent and participatory administrative process.

This spring, the Supreme Court also expressed skepticism about preemption by administrative preamble. Wyeth v. Levine arose out of the tragedy suffered by Diana Levine. A professional musician, Levine received an injection of the drug Phenergan. The Phenergan infiltrated her artery, causing gangrene and the eventual amputation of her arm. She sued the manufacturer, Wyeth, alleging a failure to provide adequate warnings of the dangers of certain injection methods. A jury agreed with Levine and awarded her over $6 million in damages.

On appeal to the United States Supreme Court, Wyeth argued that the Federal Food and Drug Administration's approval of the drug's label had the effect of preempting Levine's suit. In support of its assertion, Wyeth pointed to the preamble to the FDA regulation, which included preemptive language added in 2006. The Bush Administration filed a brief urging the court to find Levine's claims preempted.

In a 6-3 decision, the Supreme Court rejected the preemption argument. Writing for the majority, Justice John Paul Stevens noted the value of concurrent state and federal approaches to the drug safety problem. In specific, the Court refused to defer to the regulatory preamble. Noting that the agency had not promulgated the preemptive language as part of the regular rulemaking process, the Court declared, "The agency's views on state law are inherently suspect in light of this procedural failure."

Taken together, the preemption memo and the Wyeth decision recognize the benefits of overlapping state and federal regulations and the concomitant peril of preemption. The memo and Wyeth emphasize the importance of protecting the values of federalism by providing adequate procedural safeguards. Congress of course retains the power to preempt by express language, but there are often good reasons not to preempt state law. Agencies should not rush in where Congress feared to tread.

In a memo released by the White House press secretary's office, President Barack Obama has announced his administration's policy "that preemption of State law by executive departments and agencies should be undertaken only with full consideratin of the legitimate prerogatives of the States and with a sufficient legal basis for preemption." The Obama administration's move today was urged by Prof. David C. Vladeck in his January, 2008 ACS Issue Brief "The Emerging Threat of Regulatory Preemption."

The announcement signals a clear break with the Bush administration's more heavy-handed policy. As explained by the Constitutional Accountability Center, who scooped the story on their blog Text & History:

In an assault on federalism and our Constitution, the Bush Administration quietly inserted preemptive language into a number of important regulations in an attempt to favor corporate interests at the expense of state laws protecting their citizens. Today the Obama Administration recognized that states serve as "laboratories of democracy" and often are the most aggressive defenders of public health, safety, and the environment.

Today's action follows yesterday's decision to adopt California's automobile emissions standards at the national level-a perfect example of how our country benefits when states act as policy innovators. The states led, the nation followed, and the broad coalition of industry leaders, state officials, and environmental advocates assembled at the White House yesterday showed our country at its best.