Transcript Preemption and the Myth of Agency Omniscience: The Case

Preemption and the
Myth of Agency Omniscience:
The Case Study
of Roof Crush
Laura MacCleery
Director of Public Citizen’s
Congress Watch
Five Key Points from
Institutional Choice Theory
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2.
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4.
5.
Diffuse public interests lose out to concentrated
industry interests in matters of health and safety:
Tort is a needed source of information about
hazards and crucial complement to regulation.
Tort is only source of compensation for
negligence.
Juries are far less amenable to industry capture
than are regulatory agencies.
An evolving duty of care better keeps pace with
risks than does regulation, which depends on
politics, budgetary factors, agency knowledge, etc.
Tort is economically efficient because it
internalizes costs and provides incentives for
decision-makers to prevent harm.
Roof Crush Rulemaking
Federal Minimum Vehicle Safety Standard
(FMVSS 216) for roof crush resistance first
issued in 1971 – no meaningful upgrades to
standard in 35 years.
Applies pressure to the roof of a vehicle to
determine roof strength in a rollover.
It is a performance standard (not design),
allowing automakers to use any technology to
meet standard.
In 2001 and August 2005, the National Highway
Traffic Safety Administration (NHTSA) issued an
advanced notice and notice of proposed
rulemaking (NPRM) to upgrade standard.
Roof Crush in Congress
Also in August 2005, Congress passed
SAFETEA-LU, which requires NHTSA to
upgrade roof crush resistance as part of
comprehensive plan to improve rollover
safety.
SAFETEA-LU is silent on preemption but
provides deadline of 2008 for final rule.
Flaws in the Roof Crush Rule
The proposed rule is weak: 7 out of 10
vehicles on road today already comply and
rule would save merely 11 to 44 lives out of
10,000 killed annually in rollover crashes –
just one-half of one percent.
A higher standard would be both costeffective and technically feasible.
Agency rulemaking process did not comply
with Executive Order on Federalism.
Agency’s cost-benefit analysis ignored
transfer costs to states of preemption
(NCSL study).
The Public Will Remain at Risk
Reverend Lawrence
Harris was made a
quadriplegic by a
1997 rollover crash in
this Ford E-250 van.
The proposed rule
would require no
improvement in this
vehicle.
Rollover Deaths:
A Public Health Crisis
Since 2000, more people in the U.S. have been
killed in rollover crashes than died in Vietnam.
Rollover safety improvements considered – and
opposed by automakers – since the late 1980s.
SUV boom in 1990s led to widespread use of
rollover-prone and aggressive vehicles.
SUVs are cash cows, and could be made on the
cheap due to the large number of loopholes (both
safety and fuel economy).
In 2005, there were 10,816 deaths in rollover
crashes – a 2 percent increase over 2004.
Geier v. Honda Motor Company
NHTSA rule permitted compliance through either
1) passive safety belts or 2) airbags. Plaintiff
claimed negligence due to lack of airbag.
Government argued for preemption because
technological complexity attending introduction
of airbags meant that a range of compliance
options should be preserved.
Court held claim was impliedly preempted,
giving “some weight” to DOT briefs.
Court acknowledged “savings clause” in
NHTSA’s organic statute: “Compliance with a
[…] standard prescribed under this chapter does
not exempt a person from liability at common
law.” 49 U.S.C. § 30102(a)(9).
Geier Is an Exception, Not the Rule
Geier holding quite fact-driven; more like design
(technology) standard. Court focused on range and
phase-in of compliance options; “tortured” history.
Sprietsma, interpreting similar savings clause, rejects
express preemption of common law claim:
– “Perfectly rational” to preempt state standards but not
common law claims, which “perform an important remedial
role in compensating victims”
Bates rejects “inducement test,” holding conflict
preemption requires legal conflict:
– “A requirement is a rule of law that must be obeyed; an
event, such as a jury verdict, that merely motivates an
optional decision is not a requirement.”
– “[L]ong history” of harmony between state tort law claims
and regulatory regime.
Why NHTSA Is Unpersuasive
NHTSA states automakers may induce more rolloverprone vehicles (heavier roof):
–
–
–
–
Lightweight materials can strengthen roof with no weight
increase.
The Volvo XC-90 far exceeds proposed standard. NHTSA
does not suggest this is unsafe or assess penalties.
Because rollovers are significantly more survivable with a
stronger roof, injury risk is lower regardless of rollover
propensity.
The tort system best protects public from perverse incentive to
raise rollover propensity; a design-neutral standard does not.
Preamble makes mere assertions that are politically
motivated; not fact driven.
–
–
NHTSA has no expertise in analyzing empirical effects of tort
and provides no evidence.
Undermines – rather than enhances – safety mandate
assigned to NHTSA by Congress and revisited just last year.
Breaking News: Victory for Tort
The Associated Press – December 5, 2006
Ford to improve roof strength
By KEN THOMAS
WASHINGTON
Ford Motor Co. plans to enhance the roof strength of some pickups and
sport utility vehicles beyond standards proposed last year by the
government, the automaker has told regulators.
James P. Vondale, Ford's director of automotive safety, said in a Nov. 20
letter to the National Highway Traffic Safety Administration that enacting
the NHTSA proposal would lead to "many future vehicles" having
roofs comparable in strength to the Volvo XC90 SUV. That vehicle
can withstand 3.5 times its own weight.
NHTSA in August 2005 proposed a new roof strength standard that
would require a vehicle's roof to withstand a force equal to 2.5 times the
vehicle's weight, increasing it from the current standard of 1.5 times the
weight.
Some Substantial Benefits of Tort
Plaintiff verdicts incent but do not compel
change in product; are compensatory in nature.
Evolutionary duty of care that encompasses all
foreseeable risks.
High-stakes interest of affected parties can
overcome high barriers to information
acquisition and understanding.
Alert system for public of regulatory failures and
deterrence of other tort-feasors.
Source: Wagner, Wendy, “When All Else Fails: Regulating Risky Products Through
Regulation,” __ Georgetown L. J. __ (2006) (forthcoming).
Aspects of Regulatory Failure
Performance standards (as NHTSA issues) leave open
door for dangerous designs.
Agency ossification produces long delay in upgrade of
rules (35 years).
Passivity in information acquisition (agencies do not have
or use subpoena power; must clear requests thru OMB).
Participation barriers high; game restricted to experts and
industry.
Agency secrecy (NHTSA guards turf, actively concealing
risk information from public).
Political distortions: risk of industry “capture” of regulators
(revolving door).
No remedy for omissions, loopholes or weak standards.
Source: Vladeck, David. “Preemption and Regulatory Failure,” 33 Pepperdine Law
Review (2005).
Preserving a Remedy and
Public Access to Data
Roof crush is case study: industry capture
of agency will produce exceedingly weak
rule “grandfathering” in 70 percent of
current vehicle fleet.
Most compelling information on risks related
to roof crush was brought to light through
litigation, including Ford/Firestone
revelations that pushed Congress to act.
NHTSA budget is one-third, in real dollars,
of what it was in 1970, while the number of
vehicles on the road continues to climb.
A Productive Balance
Co-existence of “savings clause” and express
preemption of state standards reflects thoughtful
Congressional design:
– tort provides incentives for regulatory and other
advances while compensating victims of negligence.
Concentrating power in agencies would
exacerbate capture problems and further drive
down health and safety standards.
It would also leave victims of regulatory failures,
omissions, funding shortfalls, ossification, pure
politics, scientific distortion, and federal
negligence uncompensated, dependent on
public money for medical costs, and without a
means of alerting the public of serious and
emerging risks.
Information Heals:
Bates v. Dow Agrosciences
“By encouraging plaintiffs to bring suit for injuries .
. . a state tort action such as the kind under
review may aid in the exposure of new dangers
associated with pesticides. Successful actions …
may lead manufacturers to petition EPA to allow
more detailed labeling of their products;
alternatively, EPA itself may decide that revised
labels are required in light of the new information
that has been brought to its attention through
common law suits. In addition, the specter of
damage actions may provide manufacturers with
added dynamic incentives to continue to keep
abreast of all possible injuries stemming from use
of their product so as to forestall such actions
through product improvement.”
- Citing Ferebee, 736 F.2d, at 1541-42.
Thank you for your time
and consideration.
Sources on file with author or at:
www.citizen.org