Preemption should be the exception, not the rule
There’s been bad news on the federal preemption front recently, but there’s some good news, too. Last month, the Administrative Conference of the United States published a Recommendation for the first time in fifteen years—about preemption in federal rulemaking. The Recommendation explains a Clinton-era Executive Order (that builds upon a Reagan-era Order) which, among other things, directs federal agencies to include a “federalism impact statement” in the preamble to proposed rules that explains how the rules would affect state and local laws, if they are preemptive.
Who knew? Not the federal agencies, apparently. The ACUS Recommendation diplomatically notes that compliance has been “inconsistent,” regardless of the political party in charge. As an example, it refers to a 1999 General Accounting Office report which identified only five rules—out of a total of 11,000 issued from mid-1996 to late 1998—that included a federalism impact assessment.
To help remedy this situation, the Recommendation includes a number of, well, recommendations, designed to shed light on agency decisions to preempt, promote input from those who represent state interests early in the rulemaking process, and hold agencies accountable for both past and future rulemaking decisions that limit state or local authority. On this last point, the Recommendation highlights the directive in President Obama’s 2009 memo on preemption that called on federal agencies to review rules issued in the previous ten years to determine whether preemptive language in those rules is legally justified.
What all this will really mean for state and local control remains to be seen. But according to a recent study conducted as background for the Recommendation, there has been “a meaningful shift in preemption policies within a number of agencies.” We may be seeing some signs of this shift. For example, last month, the Energy Department published a final rule, effective immediately, waiving federal preemption of more stringent state regulations concerning the water efficiency of faucets, showerheads, toilets, and the like. The notice of proposed rules for new national school nutrition standards issued on January 13th includes a “Federalism Summary Impact Statement.” Further, the notice not only explains that state or local agencies can adopt stronger requirements as long as they are consistent with the federal rules, but also provides an example of how a state or local agency has the flexibility to implement the sodium limits faster than federal regulations would.
So, the message may be getting through—preemption isn’t something to be done lightly. Moreover, these developments may provide more opportunities for advocates and others who care about local or state control of public health issues to have a voice in federal rulemaking decisions. Stay tuned!