San Diego (Calif.) Union-Tribune, July 10, 2006


California, others resist federal trumping of laws

By Michael Gardner

SACRAMENTO -- Some of California's landmark consumer and environmental safeguards are in jeopardy as the federal government moves aggressively to override state laws in favor of more business-friendly national policies.

California appears to have the most to lose because of its progressive trendsetting, but states across the country are beginning to protest what they claim has become an industry-mapped campaign to impose Washington's will.

"It's definitely a question of: Does Washington know best?" said David Quam, director of federal relations for the National Governors Association.

The answer out of Washington appears to be yes. Federal supremacy, authorized by the Constitution's commerce clause, has been a driving philosophy in Congress, in the courts and deep in the unelected bureaucracy where rules and regulations are crafted with little public scrutiny, say critics who feel federal pre-emption has gone too far.

Articulating a widely held belief within industry, the president of the Food Productions Association said imposing 50 sets of regulations on goods marketed nationally drains budgets and drives up costs that the consumer eventually pays.

"It is important for a consumer, whether they go in a store in California, New York or Texas, that they have the same information based on the best science," said Cal Dooley, a former Democratic congressman from the Fresno area.

This national battle over states' rights touches the lives of Californians as they shop, bank, drive or watch television.

Most recently, federal pre-emption has either overturned, stalled or weakened California's initiatives to clean the air, block unwanted faxes, control e-mail spam, protect personal financial data from being sold and warn consumers of mercury in tuna.

Congress' next target is Proposition 65, California's voter-approved law that requires a warning if consumers could be exposed to toxic chemicals known to cause cancer or birth defects.

The House has passed a sweeping food safety act that could roll back Proposition 65 and as many as 150 other regulations nationally in favor of uniform standards. The Senate is expected to take up a bill in the coming weeks.

The federal campaign to override state laws has drawn the wrath of Gov. Arnold Schwarzenegger, a pro-business Republican. He said the GOP-led Congress has abandoned the shared-power federalism touted by its icon, Ronald Reagan.

"Incredibly, under Republican control of Congress, states' rights are beginning to erode again.... They are telling us how to run state education, state health care, state elections and even where we can locate a liquefied natural gas plant," Schwarzenegger said in a speech to a Republican governors conference in Carlsbad on Dec. 1.

Federal intervention has exposed the country's raw emotions and escalated its cultural wars over deeply held personal and spiritual beliefs.

The U.S. Supreme Court has a mixed record in sorting out recent high- profile appeals regarding life-or-death issues that hinged, in part, on states' rights.

Justices put the brakes on a Bush administration bid to deny the terminally ill the right to end their lives in Oregon, but cleared the way for federal agents to pursue patients who use marijuana to ease their chronic pain in California. In deciding one of the most anguished cases in a generation, the Supreme Court blocked a middle- of-the-night campaign by President Bush and Congress to strip state courts of jurisdiction over ending Terry Schiavo's life as she lay brain-damaged in a Florida hospital.

Recently, Congress switched strategies, from punishment to reward. During the oil crisis of the 1970s, states were ordered to lower speed limits to 55 mph or lose federal transportation money. Today, Congress proposes to lure states into allowing more offshore oil drilling by promising a share of the tax revenue.

In some cases, the federal government has denied California waivers related to clean-air or clean-water regulations. For example, the state's efforts to remove the toxic additive MTBE from gasoline were stalled, even though the chemical blend was seeping into groundwater. California also was forced to retreat from requirements that automakers market large numbers of electric vehicles. Currently, the state is pleading its case for permission to regulate lawn mower emissions.

The Bush administration also has joined forces with industry in court. Regulators opposed California's warning labels on tuna containing small amounts of mercury, securing a first-round court win earlier this year.

California was forced to retreat from unprecedented requirements that automakers market large numbers of electric vehicles, after settling a court challenge filed by the auto industry, which had teamed up with federal officials to argue that only Congress can set gas-mileage standards. The industry has pursued a similar strategy in fighting California's efforts to battle global warming by requiring cars to emit less carbon dioxide.

Sometimes the pre-emption fight is being waged on two fronts. The state Legislature and Congress currently are marching toward approval of a measure that would strip cities and counties of most of their control over cable television franchises, a move designed to broaden access to the market by telephone companies.

Pre-emption also may bring with it local consequences. A broad congressional measure included a niche provision that could help San Diego Gas & Electric Co. secure a permit for its proposed $1.4 billion, 120-mile Sunrise Powerlink transmission line, which may cross Anza-Borrego Desert State Park. Separate federal legislation clarifying ownership of some land could be instrumental in moving forward with a private toll road through San Onofre State Park.

Arguing for uniformity, the food-and-beverage industry says it's unfair to expect companies to produce and label products for individual states. The industry further questions whether science is the overriding factor behind the differing standards.

"In California, under Proposition 65, you really don't have scientists making the decision. You have trial lawyers who are financially motivated," said Dooley, the food-products representative.

He cited the potential Proposition 65 warnings being fought in court over acrylamide, a chemical that forms when certain foods are cooked at high temperatures, such as french fries and potato chips. Another involves a chemical abbreviated as PhiP found in commercially prepared grilled or charred chicken, a cooking process used at fast-food restaurants that dates back hundreds of years.

The patchwork of safety standards is self-defeating, said Washington attorney Marc Scheineson, a defender of the food industry.

"The result is consumers don't know what to believe, so they stop believing anything. It's the 'boy who cried wolf' syndrome," Scheineson said.



Some examples of federal efforts to pre-empt states' authority:


In the Terry Schiavo case, Congress and the president rushed through legislation to bar her husband from having her feeding tube removed, stripping state courts of jurisdiction. Federal courts thwarted that effort, and the brain-damaged Florida woman died.

In Oregon, the Bush administration moved to override a voter-enacted right-to-die measure. The courts upheld assisted suicide.

In California, the courts have allowed the federal government to prosecute medical marijuana growing and possession, overriding state voters who approved limited use of the drug for medicinal purposes.

Consumer protection

Congress significantly weakened a California financial privacy law, handing financial institutions broad rights to market their customers' personal data.

Congress overruled California law banning unwanted sales pitches over the fax machine and by e-mail.

Tuna canners do not have to label their products as toxic if mercury found inside is naturally occurring. An appeal is in the courts.

The House has passed legislation that would pre-empt as many as 150 food warning labels required by states. Senate action pending.

States no longer can independently set labeling requirements for prescription drugs.

Environmental laws

California's landmark efforts to curb pollution by requiring the sale of electric vehicles and restrict carbon dioxide emissions linked to global warming have been challenged under the federal law giving Congress the authority to enact mileage standards.

California has repeatedly been forced to seek waivers to the federal Clean Air Act to regulate emissions, including efforts to ban the toxic gasoline additive MTBE.

Refiners and other energy producers would have more ability to skirt state and local laws governing siting of facilities on federal land. Pending in Senate.

States no longer have ultimate authority of where certain power transmission lines are placed. The Federal Energy Regulatory Commission can step in to settle disputes.

The federal government has assumed authority over locating liquid natural gas facilities offshore.

State officials have appealed to the EPA for permission to regulate lawn mower emissions.


With gun control, states have lost the ability to freely tap into a federal database that tracks firearms used in crimes or accidents; Congress limited the ability of states and cities to file liability claims against weapons manufacturers.

Businesses that offer health care benefits through a broader trade association package would be exempt from complying with state coverage requirements. Pending.

SOURCES: National Conference of State Legislatures, California Attorney General's Office and Union-Tribune research.


In a recent report, the National Conference of State Legislatures described pre-emption as "a disturbing and growing trend."

"These unwarranted power grabs by the federal government subvert the federal system, choke off innovation and ignore diversity," said Republican state Sen. Don Balfour of Georgia.

Schwarzenegger said, "The federal government should not interfere in state authority to protect consumers and the environment."

Not all state officials are critical. Arkansas Gov. Mike Huckabee, also a Republican, called today's lack of uniformity "a logistical nightmare" for food-and-beverage marketers in his state and one that sends a "mixed message" to consumers.

Hoover Institute researcher Henry Miller said uniform food safety standards would bring consistency to a haphazard network of laws. There are world trade implications as well, he said. International groups could protest "unscientific" state regulations as unfair trade barriers that would have to be mitigated.

The job of battling federal intervention in court usually falls to California Attorney General Bill Lockyer, a Democrat sharply critical of Congress.

"They regurgitate what they hear from business," Lockyer said.

California has been mostly successful in defending its environmental policies, but Lockyer said he has been frustrated with losses regarding mercury warnings on tuna, keeping banks from selling personal data and blocking junk faxes that pitch low-cost loans and vacations.

Victory is difficult because federal judges tend to give deference to federal laws, Lockyer said.

Quam, of the governors association, said Congress is becoming more bold in setting tax policies friendly to business at the expense of state treasuries. Pre-empting states from implementing a tax on Internet sales is just one example, he said.

"That's the federal government reaching into state coffers... to implement a national agenda," Quam said.

Before the latest movement, the federal government seemed content to set national minimum standards and stay out of the way if states, such as California, wanted to be tougher.

"The push for pre-emption is coming from industry going to Congress to both escape new laws and to cut off new consumer-protection ideas," said Gail Hillebrand, an attorney with Consumers Union based in San Francisco.

"It's money and power," she said.

Union-Tribune staff librarians Erin Hobbs, Dick Harrington and Jenna Zbik contributed to this report.