PREEMPTION

Statutory PreemptionA. State Preemption

Department of General Services v. Ogontz Area Neighbors AssociationNotes and Questions

B. Federal PreemptionUnited States Advisory Commission on Intergovernmental Relations

Federal Statutory Preemption of State and Local Authority (1992)City of New York v. Federal Communications CommissionNotes and QuestionsWisconsin Public Intervenor v. MortierNotes and Questions

C. Regulatory FederalismU.S. Advisory Commission on Intergovernmental Relations Federal

Statutory Preemption of State and Local Authority (1992)Notes and Questions

Statutory Preemption1

The law of preemption comes into play after it has been determined that a political subdivision is empowered to exercise regulatory authority. The preemption question is this: to what extent are a political subdivision’s regulatory power “limited, in dealing with a particular subject by the existence of state statutes relating to the same subject?” SHO SATO & ARVO ALSTYNE, STATE AND LOCAL GOVERNMENT LAW 136 (2d ed. 1977).

As we have seen in the City of New Orleans case, the answer to this question may be significantly affected by the existence of a home rule or other provision in the state constitution which confers a power of immunity on political subdivisions. In these states, express preemption issues are of constitutional magnitude, often turning on whether the matter to be regulated is of statewide as distinguished from municipal concern. See, e.g., State Water Pollution Control Board v. Salt Lake City, 6 Utah 2d 247, 311 P.2d 370 (1957); Pacific Tel. And Tel. Co. v. City and County of San Francisco, 51 Cal. 2d 766, 336 P.2d 514 (1959); Adler v. Deegan, 251 N.Y. 467, 167 N.E. 705 (1929).

Express preemption is not problematic where no state constitutional provision confers a power of immunity on political subdivisions. See Ortiz v. Commonwealth of Pennsylvania, 545 Pa. 279, 681 A.2d 152 (1996).

Implied preemption has developed through case by case adjudications in the several states. See, SANDS, LIBONATI & MARTINEZ, LOCAL GOVERNMENT LAW § 314.04.

1 This discussion is based on Michael E. Libonati, The Law of Inter-governmental Relations: IVHS Opportunities and Constraints, 22 TRANSP. L.J. 225, 236-37 (1994).

Professor Briffault has concisely identified the two “basic strands in contemporary preemption doctrine”:

The first focuses on whether the state and local governments have issued conflicting commands. The second . . . focuses not on conflict per se but on whether, given the fact of state regulation, any local enactment on the same subject—even one substantively consistent with the terms of the state law—would be inconsistent with the fact of state lawmaking in the area.

Richard Briffault, Taking Home Rule Seriously: The Case of Campaign Finance Reform, 57 PROC. ACAD. POL. SCI. 34, 39 (1989).

The most frequently cited formulation of the conflict strand is as follows:

. . . in determining whether the provisions of a municipal ordinance conflict with a statute covering the same subject, the test is whether the ordinance prohibits an act which the statute permits or permits an act which the statute prohibits. . . .

37 AM. JUR., Municipal Corporations § 165 (cited in Miller v. Fabius Township Board, 114 N.W. 2d 205 (Mich. 1962)).

The difficulty with this test is that it fails to give any weight to the fact that two valid statutory schemes are in conflict, one empowering political subdivisions, the other empowering the state. Further, it is merely a verbal test giving no weight to whether the political subdivision’s regulations conflict with the policies or operations of the state regulator.

The second strand, known as “preemption by occupation of the field,” looks to: 1) whether the subject matter of the regulation reflects a “need for uniformity”; 2) whether the comprehensiveness or pervasiveness of the state regulatory scheme “precludes coexistence” with local regulations; and 3) whether the local regulatory scheme represents an “obstacle to the accomplishment and execution of the full purposes and objectives” of the state scheme. Overlook Terrace Management Corp. v. Rent Control Board of The Town of West New York, 71 N.J. 451, 366 A.2d 321 (N.J. 1976).

A. State Preemption

Department of General Services v.

Ogontz Area Neighbors Association505 Pa. 614, 483 A.2d 448 (Pa. 1984)

OPINION OF THE COURT

FLAHERTY, Justice.

This case involves primarily the question of whether the Zoning Board of Adjustment of the City of Philadelphia (the Board) has the power to enforce its regulations as to use and structural requirements for buildings against the Department of General Services, an agency of the Commonwealth.

The case arose when the Commonwealth, on January 31, 1979, applied to the Department of Licenses and Inspections of the City of Philadelphia for the permits necessary to construct a new two story building which would serve as a workshop and day development center for mentally handicapped persons. The proposed site for this building adjoined Kemble Park at the corner of Ogontz and Olney Avenues in Philadelphia, and had been purchased by the Commonwealth in 1974. On February 21, 1979 the Department of Licenses denied the Commonwealth’s application on the grounds that the proposed use of the building was not permitted in an R-9A residential district; the proposed seven foot chain link fence was not permitted in an R-9A district; and the number and location of proposed parking spaces was not in conformity with applicable sections of the Philadelphia Code.

On March 2, 1979, the Commonwealth appealed this ruling to the Zoning Board of Adjustment of the City of Philadelphia. The Board, after three hearings, on March 5, 1980 affirmed the licensing department’s denial of the necessary building permits and denied the Commonwealth’s request for a variance.1 On March 28, 1980 the Commonwealth petitioned the Court of Common Pleas of Philadelphia for a writ of certiorari to review the Board’s decision. The Commonwealth claimed both that its use did not violate the zoning ordinance existing at the time of the purchase of the property and that the Zoning Board had no jurisdiction over the Commonwealth.

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The issue to be resolved on this appeal [is]: . . . whether the City of Philadelphia, acting through its Zoning Board, may impose use, setback, height, and other related restrictions with respect to a building which the Commonwealth seeks to erect pursuant to its authority under the Mental Health and Mental Retardation Act of 1966 to plan, supervise, operate and acquire property for mental health and mental retardation facilities at various locations throughout the state . . . .

I.

As a background to the present dispute, it is well to review the structure of the governmental entities involved and the authority pursuant to which they act. Philadelphia is a municipal corporation, and as such is subject to regulation by the state:

1 The Commonwealth, through the Department of Public Welfare acquired this site and eleven other sites in Philadelphia as part of a legislative mandate to relocate approximately 900 patients formerly housed at Pennhurst State School and Hospital. Of the twelve sites planned for Philadelphia, two were acquired by the Department’s power of eminent domain. There is nothing of record to indicate whether zoning problems occurred with any of the sites except the one at Ogontz and Olney Avenues.

Municipal corporations are agents of the state, invested with certain subordinate governmental functions for reasons of convenience and public policy. They are created, governed, and the extent of their powers determined by the Legislature and subject to change, repeal or total abolition at its will.

City of Pittsburgh v. Commonwealth, 468 Pa. 174, 179, 360 A.2d 607, 610 (1976), citing Commonwealth v. Moir, 199 Pa. 534, 541, 49 A. 351, 352 (1901). Philadelphia is also a home rule city, having taken advantage of the First Class Cities Home Rule Act, Act of April 21, 1949, P.L. 665, 53 P.S. § 13101 et seq., to adopt its Home Rule Charter. As this Court stated in Kelly v. Philadelphia, 382 Pa. 459, 115 A.2d 238 (1955), Philadelphia derives its power generally to govern itself and to enact zoning regulations from the Home Rule Act:

a city taking advantage of the Act [the First Class Cities Home Rule Act], subject to certain limitations in Section 18 . . . was granted all powers and authority of local self-government together with complete powers of legislation and administration relative to its municipal functions. Section 17 of the Act provided in part that “. . . The charter of any city adopted or amended in accordance with this act may provide for a form or system of municipal government and for the exercise of any and all powers relating to its municipal functions, not inconsistent with the Constitution of the United States or of this Commonwealth, to the full extent that the General Assembly may legislate in reference thereto as to cities of the first class, and with like effect, and the city may enact ordinances, rules and regulations necessary and proper for carrying into execution the foregoing powers and all other powers vested in the city by the charter it adopts or by this or any other law. . . .” Since the power to zone is not one of the specifically enumerated limitations set forth in Section 18 of the Home Rule Act, such power is fairly included under the sweeping grant contained in Section 17, supra.

382 Pa. at 469-70, 115 A.2d at 243.

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Commonwealth agencies, on the other hand, derive their powers from statutes mandating their creation and the exercise of certain functions. In this case, the Department of Public Welfare (DPW) derives its powers to acquire land from two acts: the Mental Health and Mental Retardation Act of 1966, which grants DPW the power “to . . . acquire, through the Department of Property and Supplies, other additional facilities,” 50 P.S. § 4202; and Act 256 of 1970, which allocated funds to DPW to develop a regional program to reorient patients from Pennhurst State School and Hospital. Act of November 27, 1970, P.L. 773, No. 256. The Department of Property and Supplies, in turn, which is named as the agent through which DPW is to acquire additional facilities, derives its eminent domain authority from 71 P.S. §§ 1707.4b and 1707.12 (Supp 1983-84).

Thus, as this Court observed in City of Pittsburgh, the conflict that arises when a Commonwealth agency seeks to utilize real property in a manner that conflicts with a municipal corporation’s zoning regulations is not a contest between superior and inferior governmental

entities, but instead a contest between two instrumentalities of the state. 468 Pa. at 179, 360 A.2d at 610. The legislature has the power to regulate both of these governmental entities, enlarging or restricting their authority to act; and generally, the task of courts in these cases is to determine, through an examination of the enabling statutes applicable to each of the governmental entities, which the legislature intended to have preeminent powers. The problem, essentially, is one of statutory interpretation.

II.

A general rule as to the precise circumstances under which a Commonwealth agency’s land use determinations will prevail over the land use regulations of a local zoning board has never been formulated by this Court. We have, however, been faced with the problem of conflicting land use goals in Township of South Fayette v. Commonwealth, 477 Pa. 574, 385 A.2d 344 (1978); City of Pittsburgh v. Commonwealth, 468 Pa. 174, 360 A.2d 607 (1976); and Pemberton Appeal, 434 Pa. 249, 252 A.2d 597 (1969).

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In Pemberton Appeal the question was whether a township can exclude schools from certain areas by use of its zoning regulations. This Court held that it could not because the township’s authority to regulate land use was, in this case, in conflict with power granted to the school district “to locate, determine, acquire, and if necessary condemn, all real estate deemed necessary for schools.” 434 Pa. at 256, 252 A.2d at 600. The rationale of the case was that since the township’s exercise of its zoning authority interfered with a specific grant of authority to the school district to locate and acquire property for schools, the school district was held to be not subject to the township’s zoning regulations.

In City of Pittsburgh the Bureau of Corrections sought to establish a pre-release facility in leased premises without making application for certificate of occupancy, variance or other zoning authorization for the intended use. The issue presented was whether a Commonwealth agency with general power to establish pre-release centers throughout the Commonwealth could preempt the municipality’s zoning authority. We held that in the absence of a clear legislative intent that one governmental activity should transcend the other, a balancing analysis should be carried out in which the legislative grants are examined along with their purposes and the facts of the individual cases. 468 Pa. at 182, 360 A.2d at 612 (1976). Since (1) the Court found no explicit language in the act indicating a legislative intent to disrupt local zoning ordinances; (2) the city had neither attempted to prohibit completely the existence of pre-release centers nor acted arbitrarily; (3) the statutory construction act directs courts to give effect, if possible, to both general and special provisions in conflicting statutes; (4) the City of Pittsburgh’s enabling statute contained a conflict of laws provision favorable to the city; the Court held that there was no indication of legislative intent that the state agency had the power to establish its site without regard for local zoning regulations.

Two years after City of Pittsburgh, this Court decided Township of South Fayette v. Commonwealth, 477 Pa. 574, 385 A.2d 344 (1978). In South Fayette, Commonwealth Court, relying on our decision in City of Pittsburgh, issued a preliminary injunction against the

Commonwealth, ordering it to cease operation of a treatment unit for delinquent juveniles on the grounds that the Commonwealth’s operation of the facility violated the South Fayette zoning ordinance. This Court reversed, holding that because the township’s right to relief was not clear, the injunction must be vacated. In determining the right to relief, this Court reiterated its balancing approach enunciated in City of Pittsburgh, and formulated six specific considerations to be used in balancing the interests of the South Fayette parties: (1) whether the intended use violated the zoning ordinance; (2) the significance of the Commonwealth’s ownership of the property; (3) the parens patriae responsibility of the Commonwealth; (4) the authority to establish juvenile centers; (5) the absence in the first class township zoning authority of a conflict of laws provision, “such as was present in City of Pittsburgh”; (6) particular circumstances of the case. 477 Pa. at 581-82, 385 A.2d at 347.

The common thread running through these cases is the assertion that “When there is an apparent conflict in the use of [land use] powers we must look to the intent of the Legislature to determine which exercise of authority is to prevail.” City of Pittsburgh, 468 Pa. at 182, 360 A.2d at 612. Since legislative intent is not always self-evident, this Court adopted the balancing test, mentioned earlier, in which the nature and purpose of the legislative grant and the facts of the case are examined in an attempt to determine which agency the legislature intended to be preeminent.

In City of Pittsburgh this Court also stated that legislative intent to override municipal zoning powers may be indicated “either by the inclusion of the power of eminent domain to the state agency or clear language showing the overriding intent . . . .” 468 Pa. at 184-85, 360 A.2d at 613. This sentence from City of Pittsburgh is of especial importance in this case, for, as mentioned earlier, both the Court of Common Pleas and the opinion in support of affirmance in Commonwealth Court relied on the Commonwealth’s eminent domain power in holding that the Commonwealth was not subject to the jurisdiction of the Philadelphia Zoning Board.

It now appears to us that although our past emphasis on discovering the legislative intent was correct, this Court’s earlier view that eminent domain powers necessarily indicate a legislative intent that the agency may override local zoning regulations, should no longer control. We do not believe that the grant of eminent domain power to a state agency invariably indicates legislative intent that the state agency may act without regard for local zoning regulations. Accordingly, insofar as City of Pittsburgh stands for the proposition that the grant of eminent domain powers to a state agency may be taken as an indication of legislative intent that the state agency may override local zoning regulations, it is expressly overruled.

Moreover, although we continue to subscribe to the view that legislative intent as to which agency’s powers are preeminent must control, it is now apparent that the balancing test enunciated in City of Pittsburgh has little to do with legislative intent. Rather, it is a kind of ad hoc judicial legislation of authority to the governmental unit which, in the circumstances, seems to have the most compelling case. Pemberton Appeal and City of Pittsburgh, in fact, are illustrative of this point. The grant of power to the Bureau of Correction in City of Pittsburgh was “to establish . . . such prisoner pre-release centers at such locations throughout the Commonwealth as it may deem necessary . . . .” The School District’s grant of power in Pemberton Appeal was to “locate, determine, acquire, and if necessary condemn all real estate

deemed necessary for schools.” Basically, these grants of power are the same: both agencies are empowered to establish their respective facilities in cases where they deem it necessary. “Locate and determine” are merely words relating to planning; and “acquire and if necessary condemn” only relate to the method of obtaining the ownership necessary to establish the facility. Yet this Court held that the statutory grant in Pemberton Appeal was “precise and specific,” whereas that in City of Pittsburgh indicated no legislative intent to override zoning regulations.

While we have no quarrel with the results reached in these cases, it is evident that the cognitive differences in the statutory language in the two cases are so slight that statutory language alone does not explain the difference in the results. Rather, it appears that the Court considered all the circumstances of the cases, balanced the interests of the parties, and decided the cases on the apparent equities of the situations. Whatever virtue there may be in this approach, it has the disability of leading to uncertain results at every level. This, in turn, fosters layer upon layer of litigation, tying up land, the courts and Commonwealth agencies for years.

Apart from the inevitable litigation which results from the knowledge that the next court might “balance” differently than the last, the real difficulty with the balancing approach is that it has nothing to do with legislative intent. Rather, it amounts to a judicial determination that since the legislature did not provide for the situation at hand, the courts will. It seems to us a better approach to return to the original task of determining legislative intent.

When we approach this task, however, we are immediately faced with a paradox: determination of legislative intent as to priority of the two governmental entities is necessary to decide the case, but that intent is indecipherable from the applicable statutes. Having rejected balancing, and being unable to determine legislative intent as to which agency is to prevail, we turn to the statutory construction rule that legislative intent may be determined by a consideration, inter alia, of the consequences of a particular interpretation. Statutory Construction Act, 1 PA.C.S.A. § 1921(c)(6). The consequences of deciding that the Commonwealth should be preeminent in this matter are that Philadelphia’s zoning scheme would be frustrated in this case and in every other case where a Commonwealth land use plan conflicted with the city plan. On the other hand, if the city were to prevail, the Commonwealth’s mandate to establish mental health facilities at various locations in the state would not necessarily be frustrated, for the loss of one location might well be compensated for by substitution of another. Thus, deciding that the city’s zoning authority supersedes that of the Commonwealth agency to establish a mental health facility in a particular geographical location arguably would give effect to the legislative mandates of both governmental entities, a consequence which, absent more certain legislative direction, seems advisable. Accordingly, we hold that DPW is subject to the jurisdiction of the Zoning Board and that in the case of a conflict between DPW’s land use plans and the zoning use regulatory scheme of Philadelphia, the zoning scheme shall prevail. We decline to infer a legislative intent that the Commonwealth agency has preemptive land use powers. Of course, should the legislature determine that one or more Commonwealth agencies or projects should be empowered to supersede local land use regulations, it need only pass legislation to that effect. Therefore, Commonwealth Court’s holding that the Commonwealth is not subject to the jurisdiction of the Zoning Board with respect to local use restrictions is reversed.

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The case is remanded to the Court of Common Pleas for determination of the Commonwealth’s claim that its application for variance was erroneously denied.

ZAPPALA, J., files a concurring opinion which LARSEN and MCDERMOTT, JJ., join.

ZAPPALA, Justice, concurring.

I concur in the result reached by the Majority. I note particularly my agreement with the portion of the Majority Opinion that overrules prior cases standing for the proposition “that the grant of eminent domain powers to a state agency may be taken as an indication of legislative intent that the state agency may override local zoning regulations . . . .”

Through the zoning enabling acts, the Legislature has granted municipalities the power to carefully plan and supervise the comprehensive development of their land. Yet this specific grant of power would be highly illusory, and its purpose thwarted, if another public entity were able to override it by implication. I would hold simply that absent a specific legislative grant of authority exempting an agency from local zoning regulations, the local regulations must control.

LARSEN and MCDERMOTT, JJ., join in this concurring opinion.

Notes and Questions

1. How would this case be decided under conventional implied preemption doctrine?

Does the local regulation prohibit what the state statute permits, thus conflicting with a state statutory scheme which affords so much autonomy to a state administrative agency that the agency is vested with eminent domain power?

As to the occupation of the field strand of implied preemption doctrine, can you make a case for its application to this situation? Pennsylvania has more than twenty five hundred units of local government which are authorized to engage in land use planning. Their regulatory decisions could affect land use decisions not only of state agencies, but of 60 county governments, 516 school districts, and 1,919 special purpose districts. See U.S. Census Department, 1997 Census of Governments, in 1 GOVERNMENT ORGANIZATION A-218-219 (August 1999). Could the legislature have intended to subject each of these government entities to the not in my back yard (NIMBY) sensibilities of local zoning and planning codes?

2. Do you see any parallels between the difficulties encountered by the Pennsylvania Supreme Court in applying its balancing test and the difficulties described in applying the “statewide” versus “municipal” distinction in state constitutional home rule provisions which make that distinction?

Is there anything wrong with courts fashioning a balancing test as a kind of default rule when the legislature has failed to either foresee or address a preemption issue? Could the legislature be said to have acquiesced in the court’s balancing approach because it failed to include an express preemption clause in the Mental Health and Mental Retardation Act?

3. Consider the relevance of the following excerpt from the Home Rule provision of the Pennsylvania Constitution for the case at bar:

A municipality which has a home rule charter may exercise any power or perform any function not denied by this constitution by its home rule charter or by the General Assembly at any time.

PA. CONST. art. IX § 32.

4. If the conflict in this case is not “between superior and inferior governmental entities, but instead a contest between two instrumentalities of the state,” then what is the basis for a claim of sovereign immunity by the state in an action brought by a local government unit?

5. Suppose that the following canon of statutory construction was applicable: “statutory provisions which are written in such general language that they are reasonably susceptible to being construed as applicable both to the government and to private parties are subject to a rule of construction which exempts the government from their operation.” SUTHERLAND, STATUTORY CONSTRUCTION § 62.01 (4th ed. 1986). Would this rule of strict construction of statutes in derogation of sovereignty change the result in this case? Do you see any parallels between this rule of construction and Dillon’s Rule?

6. Has the court truly considered the consequences of its interpretation of these statutes?

Think of the transaction costs that must be incurred if a state agency must obey zoning and planning laws—the time and effort devoted to 1) gathering information concerning the applicable substantive and procedural law; 2) filling out the appropriate forms; 3) communications and meetings with local decision makers; 4) compliance inspections by local regulatory personnel; and 5) administrative appeals and litigation if the matter cannot be resolved to the agency’s satisfaction.

7. The court did not refer to the following two provisions of the Pennsylvania Statutory Construction Act, 1 PA. CONS. STAT. § 1933 and § 1936 (1999):

§ 1933. Particular controls general

Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision

shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.

§ 1936. Irreconcilable statutes passed by different General Assemblies

Whenever the provisions of two or more statutes enacted finally by different General Assemblies are irreconcilable, the statute latest in date of final enactment shall prevail.

Should the Court have treated the statutes in the case at bar as irreconcilable?

8. Has the Court, in effect, substituted a presumption of concurrent authority of both state and local decision-makers in place of the balancing test?

9. Why does the Court not defer to the construction of the statute adopted by the state agency which is responsible for administering it?

B. Federal Preemption

United States Advisory Commission on Intergovernmental RelationsFederal Statutory Preemption of State and Local Authority 5-6 (1992)

Intergovernmental regulation has become one of the most prominent features of American federalism during the past quarter-century. One facet of intergovernmental regulation is federal preemption of state and/or local authority by acts of Congress and by judicial and administrative interpretations of federal statutes.

Preemption refers, generally, to an appropriation or seizure for oneself to the exclusion of others. Often it means taking possession of something before others do so. In the feudal past, for example, preemption referred to royal prerogatives to purchase goods at certain prices in preference to other buyers. For about the first 150 years of U.S. history, preemption was most commonly known as a first option or right to purchase public land, usually a portion not exceeding 160 acres.

Preemption—Displacement of State Law

In the field of intergovernmental relations, preemption refers to the authority of federal law to displace or replace state (and local) law under the supremacy clause of the U.S. Constitution (Art. VI). The clause states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The supremacy clause does not mean that the federal government is supreme in all

things; it means only that federal law is supreme within the realms of power delegated to it by the people of the states through the U.S. Constitution. As Alexander Hamilton wrote in THE FEDERALIST, the supremacy clause does not mean “that acts of the [federal government] which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the [states], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.” THE FEDERALIST, No. 33.

Consequently, the scope of federal preemption of state and local powers depends very greatly on interpretations of the scope of the powers of Congress enumerated in the U.S. Constitution. Over the years, as congressional powers (e.g., the commerce clause) have been interpreted more broadly, the scope of federal preemption of state local authority has broadened as well because conflicting state law or administrative policy must yield to federal law enacted pursuant to the delegated powers of the Congress.

Interpreting Federal Preemption Powers

Interpretation, therefore, lies at the heart of preemption: the Congress’s interpretation of its delegated powers; the judiciary’s interpretation of the authority of the Congress to enact a particular statute pursuant to its delegated powers; judicial and administrative interpretations of the explicitly or implicitly preemptive effects of federal statutes; and judicial and administrative judgments of whether a state law and a federal law can both be enforced in a particular field. Once it is determined that a federal statute accords with the U.S. Constitution, then: “The constitutional principles of preemption, in whatever particular field of law they operate, are designed with a common end in view: to avoid conflicting regulation of conduct by various official bodies which might have some authority over the subject matter.” Amalgamated Assn. Of Street, Electric Ry. & Motor Coach Employees v. Lockridge, 403 U. S. 274, 285-286 (1971).

This judgment, however, is often more of an art than a science. As Justice Hugo Black wrote in 1941:

There is not—and from the very nature of the problem there cannot be—any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress. This Court, in considering the validity of state laws in the light of treaties or federal laws touching the same subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula. Our primary function is to determine whether, under the circumstances of this particular case, Pennsylvania’s law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Hines v. Davidowitz, 312 U. S. 52, 67 (1941).

The question of interpretation is important because, unlike the general definition of

preemption as “prior appropriation,” federal preemption rarely involves a prior appropriation of powers. That is, federal preemption usually displaces state or local laws that already occupy a field—laws that reflect the preferences of the citizens of states and localities as expressed through their elected legislators. Consequently, most federal preemptions alter the balance of power in the federal system by shifting powers to the federal government through the enactment of laws that reflect the preferences of citizens nationwide through their elected members of Congress. Given that federal preemptions ordinarily displace state or local laws that reflect the diverse preferences of the citizens of states and communities, it is especially important that the Congress be clear about its intent to preempt state or local powers. Such clarity is needed in order to ensure that preemptions genuinely reflect uniform voter preferences nationwide, in accordance with the U.S. Constitution, and that unelected judicial and executive officials do not over-reach their statutory authority to displace state and local laws duly enacted by elected state and local officials.

Unlike the general definition of preemption as “exclusivity,” however, federal preemption of state or local power does not necessarily displace state or local law entirely. Generally, the U.S. Supreme Court has advanced three views on the question of exclusivity. See CONGRESSIONAL RESEARCH SERVICE, THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 281 (1987). One view is that in a direct collision between state law and federal law, state law is simply invalidated under the supremacy clause of the U.S. Constitution. A second view, sometimes referred to as a nationalist view, is that when the Congress preempts part of a field or a phase of commerce, it effectively occupies the entire field, leaving no room for supplementary state or local legislation. As Justice Joseph Story argued in his dissent in New York v. Miln:

Full power to regulate a particular subject implies the whole power, and leaves no residuum; and a grant of the whole to one is incompatible with a grant to another of a part. When a state proceeds to regulate commerce with foreign nations, or among the states, it is doing the very thing which congress is authorized to do.

New York v. Miln, 36 U.S. (11 Pet.) 102, 158 (1837).

A third view is that state and local law may continue in force as a supplement to federal law so long as there is no direct conflict between the federal and state laws. In 1963, for example, the U.S. Supreme Court upheld, 5-4, a Florida law that set standards for avocados sold in Florida, standards that were higher than those set by federal law. See Florida Lime & Avovado Growers v. Paul, 373 U.S. 132 (1963). Although the Florida law was applied to avocados grown out of state as well as in-state, the Court sustained the law on the ground that growers could comply with both the state and federal standards because compliance with the higher state standard automatically meant compliance with the lower federal standard.

Preemption, therefore, is a complex field of federal law, but given the prominence of preemption in American federalism today, it is important to understand preemption because it has profound effects on intergovernmental relations and the balance of power in the federal system. Outside of the literature of law, however, relatively little attention has been given to preemption.

City of New York v.

Federal Communications Commission486 U.S. 57 (1988)

Justice WHITE delivered the opinion of the Court.

The Federal Communications Commission has adopted regulations that establish technical standards to govern the quality of cable television signals and that prohibit local authorities from imposing more stringent technical standards. The issue is whether in doing so the Commission has exceeded its statutory authority.

I

This case deals with yet another development in the ongoing efforts of federal, state, and local authorities to regulate different aspects of cable television over the past three decades. See Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 700-705 (1984); United States v. Southwestern Cable Co., 392 U.S. 157, 161-178 (1968). With the incipient development of cable television in the 1950’s and 1960’s from what had been more generally known as community antenna television systems, the Federal Communications Commission began to assert regulatory authority in this area. See CATV Second Report and Order, 2 F.C.C.2d 725 (1966). In 1972, the Commission first asserted authority over technical aspects of cable television and devised technical standards to govern the transmission of broadcast signals by cable, though without pre-empting regulation of similar matters by state or local franchising authorities. Cable Television Report and Order, 36 F.C.C.2d 143, on reconsideration, 36 F.C.C.2d 326 (1972), aff’d sub nom. American Civil Liberties Union v. FCC, 523 F.2d 1344 (CA9 1975).1 Within two years, however, the Commission became convinced from its experience with conflicting federal and local technical standards that there is “a compelling need for national uniformity in cable television technical standards” which would require it to pre-empt the field of signal-quality regulation in order to meet the “necessity to rationalize, interrelate, and bring into uniformity the myriad standards now being developed by numerous jurisdictions.” Cable Television Report and Order, 49 F.C.C.2d 470, 477, 480 (1974). The Commission explained that a multiplicity of mandatory and nonuniform technical requirements undermined “the ultimate workability of the over-all system,” could have “a deleterious effect on the development of new cable services,” and could “seriously imped[e]” the “development and marketing of signal source, transmission, and terminal equipment.” Id. at 478-479.2 [FN2]

1 The “technical standards” established by the Commission describe, in quantitative terms, various electrical characteristics of the audio and video components of the signals delivered by the cable system to its subscribers, including such specific items as visual carrier frequency, aural center frequency, visual signal level, terminal isolation, and radiation and signal leakage. See 47 CFR §§ 76.601, 76.605 (1987).

2 Although the Commission recognized that “[t]he broad pre-emptive policy we are adopting today will ultimately affect all cable systems,” 49 F.C.C.2d at 480, it fashioned this policy to have a more gradual effect. Because “many of the pre-existing technical standards adopted by cities and states cannot be shown to adversely affect our stated goals,” the Commission decided to extend a “grandfather” approval to those technical

In 1984, the Court approved the pre-emptive authority that the Commission had asserted over the regulation of cable television systems. We held that in the Communications Act of 1934, Congress authorized the Commission “to regulate all aspects of interstate communication by wire or radio,” including the subsequently developed medium of cable television, and that the Commission’s authority “extends to all regulatory actions ‘necessary to ensure the achievement of the Commission’s statutory responsibilities.’ “ Crisp, supra, 467 U.S. at 700, quoting FCC v. Midwest Video Corp., 440 U.S. 689, 706 (1979). Although the state law that was invalidated in Crisp regulated commercial advertising on cable television, rather than the technical quality of cable television signals, the Court recognized that for 10 years the Commission had “retained exclusive jurisdiction over all operational aspects of cable communication, including signal carriage and technical standards.” Crisp, supra, 467 U.S. at 702.

A few months after the Court’s decision in Crisp, Congress enacted the Cable Communications Policy Act of 1984 (Cable Act or Act), 98 Stat. 2780, 47 U.S.C. §§ 521-559 (1982 ed., Supp. IV). Among its objectives in passing the Cable Act, Congress purported to “establish a national policy concerning cable communications” and to “minimize unnecessary regulation that would impose an undue economic burden on cable systems.” 47 U.S.C. §§ 521(1), (6) (1982 ed., Supp. IV). The Act was also intended to “establish guidelines for the exercise of Federal, State, and local authority with respect to the regulation of cable systems” through procedures and standards that “encourage the growth and development of cable systems and which assure that cable systems are responsive to the needs and interests of the local community.” §§ 521(3), (2) (1982 ed., Supp. IV).

The Cable Act left franchising to state or local authorities; those authorities were also empowered to specify the facilities and equipment that franchisees were to use, provided such requirements were “consistent with this title.” Cable Act, §§ 624(a), (b), 47 U.S.C. §§ 544(a), (b) (1982 ed., Supp. IV). Section 624(e) of the Cable Act provided that “[t]he Commission may establish technical standards relating to the facilities and equipment of cable systems which a franchising authority may require in the franchise.” 47 U.S.C. § 544(e) (1982 ed., Supp. IV).

In 1985, the Commission promulgated regulations that would establish technical standards governing signal quality for one of four different classes of cable television channels and that would forbid local cable franchising authorities to impose their own standards on any of the four classes of channels. 50 Fed.Reg. 7801, 7802 (1985), 47 CFR pt. 76 (1986). The Commission eventually adopted a modified version of these regulations, which reaffirmed the Commission’s established policy of pre-empting local regulation of technical signal quality standards for cable television. 50 Fed.Reg. at 52462, 52464-52465. The Commission found its statutory authority to adopt the regulations in § 624(e) of the Cable Act, 47 U.S.C. § 544(e) (1982 ed., Supp. IV), and in 47 U.S.C. §§ 154(i) and 303(r). 50 Fed.Reg. at 52466. Petitioners (the cities of New York, Miami, and Wheaton, and the National League of Cities) sought review of the regulations in federal court, where they contested the scope of the pre-emptive authority claimed by the Commission and insisted that franchising authorities could impose stricter

standards that were already operational or certified to the Commission by January 1, 1975. Ibid. In addition, a mechanism was established (and remains in effect) that allows state and local authorities to impose “different or additional technical standards” if they obtain a specific waiver from the Commission. Id. at 480-481; see n. 5, infra.

technical standards than those specified by the Commission.

The Court of Appeals granted partial relief to petitioners. 259 U.S.App.D.C. 191, 814 F.2d 720 (1987). It noted that the Commission had adopted technical standards applicable to one class of cable television channels, but had left the other three classes of channels completely unregulated. It agreed with petitioners that the Commission had acted arbitrarily and capriciously when it did not adopt technical standards for the latter three classes of channels, yet prohibited local authorities from adopting such standards and ignored the apparent conflict between these actions and the language of the Cable Act. It therefore vacated this part of the rule and remanded to the Commission for further proceedings. The court’s holding was unanimous on this point, and that part of its decision is not at issue here.

* * *

The Court of Appeals divided, however, over the propriety of the Commission’s technical standards that apply to the first class of cable channels and that pre-empt more stringent local regulations. The majority of the panel upheld pre-emption, ruling that Congress intended federal regulations like these to supersede local law and that the Commission acted within the broad confines of the pre-emptive authority delegated to it by Congress when it adopted the regulations with respect to this one class of channels. One judge dissented, contending that the majority had sanctioned pre-emption without a clear manifestation of congressional intent, contrary to this Court’s decisions. We granted certiorari, 484 U.S. 962 (1987), and we now affirm.

II

When the Federal Government acts within the authority it possesses under the Constitution, it is empowered to pre-empt state laws to the extent it is believed that such action is necessary to achieve its purposes. The Supremacy Clause of the Constitution gives force to federal action of this kind by stating that “the Laws of the United States which shall be made in Pursuance” of the Constitution “shall be the supreme Law of the Land.” U.S. CONST., Art. VI, cl. 2. The phrase “Laws of the United States” encompasses both federal statutes themselves and federal regulations that are properly adopted in accordance with statutory authorization. For this reason, at the same time that our decisions have established a number of ways in which Congress can be understood to have pre-empted state law, see Louisiana Public Service Comm’n v. FCC, 476 U.S. 355, 368-369 (1986), we have also recognized that “a federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation” and hence render unenforceable state or local laws that are otherwise not inconsistent with federal law. Id. at 369.

This case involves the latter kind of pre-emption, and here the inquiry becomes whether the federal agency has properly exercised its own delegated authority rather than simply whether Congress has properly exercised the legislative power. Thus we have emphasized that in a situation where state law is claimed to be pre-empted by federal regulation, a “narrow focus on Congress’ intent to supersede state law [is] misdirected,” for “[a] pre-emptive regulation’s force does not depend on express congressional authorization to displace state law.” Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141, 154 (1982). Instead, the correct focus is on

the federal agency that seeks to displace state law and on the proper bounds of its lawful authority to undertake such action. The statutorily authorized regulations of an agency will pre-empt any state or local law that conflicts with such regulations or frustrates the purposes thereof. Beyond that, however, in proper circumstances the agency may determine that its authority is exclusive and pre-empts any state efforts to regulate in the forbidden area. Crisp, 467 U.S. at 700; De la Cuesta, supra, 458 U.S. at 152-154. It has long been recognized that many of the responsibilities conferred on federal agencies involve a broad grant of authority to reconcile conflicting policies. Where this is true, the Court has cautioned that even in the area of pre-emption, if the agency’s choice to pre-empt “represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.” United States v. Shimer, 367 U.S. 374, 383 (1961); see also Crisp, supra, 467 U.S. at 700.

IIIA

In this case, there is no room for doubting that the Commission intended to pre-empt state technical standards governing the quality of cable television signals. In adopting the regulations at issue here, the Commission said:

Technical standards that vary from community to community create potentially serious negative consequences for cable system operators and cable consumers in terms of the cost of service and the ability of the industry to respond to technological changes. To address this problem, we proposed in the Notice to retain technical standards guidelines at the federal level which could be used, but could not be exceeded, in state and local technical quality regulations.

* * *

After a review of the record in this proceeding, we continue to believe that the policy adopted in 1974 was effective, should remain in force, and is entirely consistent with both the specific provisions and the general policy objectives underlying the 1984 Cable Act. This pre-emption policy has constrained state and local regulation of cable technical performance to Class I channels and has prohibited performance standards more restrictive than those contained in the Commission’s rules. The reasons that caused the adoption of this policy appear to be as valid today as they were when the policy was first adopted.

50 Fed.Reg. at 52464.

As noted above, the policy adopted by the Commission in 1974, which was continued in effect by the 1985 regulations, was a pre-emptive policy applying in the area of technical standards governing signal quality. 49 F.C.C.2d at 477-481. Since the Commission has explicitly stated its intent to exercise exclusive authority in this area and to pre-empt state and local regulation, this case does not turn on whether there is an actual conflict between federal and state

law here, or whether compliance with both federal and state standards would be physically impossible. De la Cuesta, supra, 458 U.S. at 153.

B

The second part of the inquiry is whether the Commission is legally authorized to pre-empt state and local regulation that would establish complementary or additional technical standards, where it clearly is possible for a cable operator to comply with these standards in addition to the federal standards. We have identified at least two reasons why this part of the inquiry is crucial to our determination of the pre-emption issue. “First, an agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it. Second, the best way of determining whether Congress intended the regulations of an administrative agency to displace state law is to examine the nature and scope of the authority granted by Congress to the agency.” Louisiana Public Service Comm’n, 476 U.S. at 374. The second reason was particularly relevant in Louisiana Public Service Comm’n because there we were obliged to assess the import of a statutory section in which Congress appeared to have explicitly limited the Commission’s jurisdiction, so as to prohibit it from pre-empting state laws concerning the manner in which telephone companies could depreciate certain plant and equipment. Id., 476 U.S. at 369-376, 379, construing 47 U.S.C. § 152(b).

We conclude here that the Commission acted within the statutory authority conferred by Congress when it pre-empted state and local technical standards governing the quality of cable television signals. When Congress enacted the Cable Act in 1984, it acted against a background of federal pre-emption on this particular issue. For the preceding 10 years, the Commission had pre-empted such state and local technical standards under its broad delegation of authority to “[m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this chapter [the communications laws, Title 47 of the U.S. Code, Chapter 5],” as a means of implementing its legitimate discretionary power to determine what the “public convenience, interest, or necessity requires” in this field. 47 U.S.C. §§ 303 and 303(r); see also 49 F.C.C.2d at 481; 47 U.S.C. § 154(i). The Court’s decision in Crisp, which was handed down during the time Congress was considering the legislation that within a few months became the Cable Act, broadly upheld the Commission’s pre-emptive authority in very similar respects. 467 U.S. at 701-705.

In the Cable Act, Congress sanctioned in relevant respects the regulatory scheme that the Commission had been following since 1974. In § 624 of the Cable Act, Congress specified that the local franchising authority could regulate “services, facilities, and equipment” in certain respects, and could enforce those requirements, but § 624(e) of the Act grants the Commission the power to “establish technical standards relating to the facilities and equipment of cable systems which a franchising authority may require in the franchise.” 47 U.S.C. §§ 544(a)-(e) (1982 ed., Supp. IV). This mirrors the state of the regulatory law before the Cable Act was passed, which permitted the local franchising authorities to regulate many aspects of cable services, facilities, and equipment but not to impose technical standards governing cable signal quality, since the Commission had explicitly reserved this power to the Federal Government.

It is also quite significant that nothing in the Cable Act or its legislative history indicates that Congress explicitly disapproved of the Commission’s pre-emption of local technical standards. Given the difficulties the Commission had experienced in this area, which had caused it to reverse its ground in 1974 after two years of unhappy experience with the practical consequences of inconsistent technical standards imposed by various localities, we doubt that Congress intended to overturn the Commission’s decade-old policy without discussion or even any suggestion that it was doing so. To the contrary, the House Report which discusses this section of the Act portrays it as nothing more than a straightforward endorsement of current law:

Subsection (e) allows the Commission to set technical standards related to facilities and equipment required by a franchising authority pursuant to a franchising agreement. This provision does not affect the authority of a franchising authority to establish standards regarding facilities and equipment in the franchise pursuant to section 624(b) which are not inconsistent with standards established by the FCC under this subsection.

H.R.Rep. No. 98-934, p. 70 (1984), U.S.Code Cong. & Admin.News, 1984, pp. 4655, 4707.

This passage from the House Report makes clear that the Act was not intended to work any significant change in the law in the respects relevant to this case. By noting that § 624(e) authorizes “the Commission to set technical standards related to facilities and equipment” and that it “does not affect the authority of a franchising authority to establish standards regarding facilities and equipment” that are not inconsistent with Commission standards, the House Report indicates both that Congress did not intend to remove from the Commission its longstanding power to establish pre-emptive technical standards, and that Congress did not intend to “affect the authority of a franchising authority” to set standards in these and similar matters regarding cable facilities and equipment. In particular, Congress did not manifest any intent to “affect the authority” of local franchising authorities by giving them the power to supplement the technical standards set by the Commission with respect to the quality of cable signals, a power which they generally had not been permitted to exercise for the last 10 years and which, according to the Commission’s consistent view, disserves the public interest.5 Petitioners insist that under § 624, as evidenced by the passage from the House Report quoted above, a franchising authority may specify any technical standards that do not conflict with Commission standards and hence may set stricter standards for signal quality. But this disregards the Commission’s own power to pre-empt, an authority that we do not believe Congress intended to take away in the Cable Act. And it also disregards the Commission’s explicit findings, based on considerable experience in this area, that complementary or additional technical standards set by state and local authorities do conflict with the basic objectives of federal policy with respect to cable television—findings that the Commission first articulated in 1974 and then reiterated in 1986. See 49 F.C.C.2d at 478-479; 50 Fed.Reg. at 52464-52465.

In sum, we find nothing in the Cable Act which leads us to believe that the

5 Petitioners and other state and local authorities remain free, of course, to petition the Commission for an individualized waiver that would permit them to “impose additional or different requirements,” which they may seek to obtain by demonstrating that particular local conditions create special problems that make the federal technical standards inadequate. See 47 CFR § 76.7 (1987).

Commission’s decision to pre-empt local technical standards governing the quality of cable signals “is not one that Congress would have sanctioned.” Shimer, 367 U.S. at 383. We therefore affirm the judgment of the Court of Appeals.

It is so ordered.

Notes and Questions

1. Is this a case involving express or implied preemption?

2. Evaluate this case in the light of the following recommendation in the Advisory Commission on Intergovernmental Relations (A.C.I.R.) Report, supra: “[T]he federal courts do not confirm the validity of statutory and administrative preemptions unless accompanied by a clear statement of intent to preempt . . . .” UNITED STATES ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS, FEDERAL STATURORY PREEMPTION OF STATE AND LOCAL AUTHORITY 2 (1992).

In Schwartz v. Texas, 344 U.S. 199, 202-203 (1952), the Supreme Court said: “It will not be presumed that a federal statute was intended to supercede the exercise of the power of the state unless there is a clear manifestation of the intent to do so.” Schwartz was reaffirmed in New York State Department of Social Services v. Dublino, 413 U.S. 405 (1973). Is there any difference between the A.C.I.R. approach and that expressed in Schwartz and Dublino?

3. Do the following excerpts from Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc, 467 U.S. 837 (1984), explain the result in City of New York?:

When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.

* * *

“The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231 (1974). If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to

elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. [citations omitted]

We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations [citations omitted] [sic] “has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. See, e.g., National Broadcasting Co. v. United States, 319 U.S. 190; Labor Board v. Hearst Publications, Inc., 322 U.S. 111; Republic Aviation Corp. v. Labor Board, 324 U.S. 793; Securities & Exchange Comm’n v. Chenery Corp., 332 U.S. 194; Labor Board v. Seven-Up Bottling Co., 344 U.S. 344. “If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.” United States v. Shimer, 367 U.S. 374, 382, 383 (1961).

Chevron, 467 U.S. at 843-846.

Can the Chevron approach be squared with the clear statement approach espoused in Dublino and Schwartz, supra?

4. See, generally, Paula A. Sinozich et. al., Project: The Role of Preemption in Administrative Law, 45 ADMIN. L. REV. 107-224 (1993).

Wisconsin Public Intervenor v. Mortier 501 U.S. 597 (1991)

Justice WHITE delivered the opinion of the Court.

This case requires us to consider whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA or Act), 61 Stat. 163, as amended, 7 U.S.C. § 136 et seq., pre-empts the regulation of pesticides by local governments. We hold that it does not.

I

A

FIFRA was enacted in 1947 to replace the Federal Government’s first effort at pesticide regulation, the Insecticide Act of 1910, 36 Stat. 331. 61 Stat. 163. Like its predecessor, FIFRA as originally adopted “was primarily a licensing and labeling statute.” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991 (1984). In 1972, growing environmental and safety concerns led Congress to undertake a comprehensive revision of FIFRA through the Federal Environmental Pesticide Control Act. 86 Stat. 973. The 1972 amendments significantly strengthened FIFRA’s registration and labeling standards. 7 U.S.C. § 136a. To help make certain that pesticides would be applied in accordance with these standards, the revisions further insured that FIFRA “regulated the use, as well as the sale and labeling, of pesticides; regulated pesticides produced and sold in both intrastate and interstate commerce; [and] provided for review, cancellation, and suspension of registration.” Ruckleshaus, supra, at 991-992. An additional change was the grant of increased enforcement authority to the Environmental Protection Agency (EPA), which had been charged with federal oversight of pesticides since 1970. See Reorganization Plan No. 3 of 1970, 35 Fed.Reg. 15623 (1970), 5 U.S.C.App., p. 1343. In this fashion, the 1972 amendments “transformed FIFRA from a labeling law into a comprehensive regulatory statute.” 467 U.S. at 991.

As amended, FIFRA specifies several roles for state and local authorities. The statute, for example, authorizes the EPA Administrator to enter into cooperative agreements with the States to enforce FIFRA provisions. 7 U.S.C. §§ 136u, 136w-1. As part of the enforcement scheme, FIFRA requires manufacturers to produce records for inspection “upon request of any officer or employee of the Environmental Protection Agency or of any State or political subdivision, duly designated by the Administrator.” § 136f(b). FIFRA further directs the EPA Administrator to cooperate with “any appropriate agency of any State or any political subdivision thereof.” § 136t(b). Of particular relevance to this case, § 24(a) specifies that States may regulate the sale or use of pesticides so long as the state regulation does not permit a sale or use prohibited by the Act. § 136v(a).

B

Petitioner, the town of Casey, is a small rural community located in Washburn County, Wisconsin, several miles northwest of Spooner, on the road to Superior.1 In 1985, the town adopted Ordinance 85-1, which regulates the use of pesticides. The ordinance expressly borrows statutory definitions from both Wisconsin laws and FIFRA, and was enacted under WIS.STAT. §§ 61.34(1), (5) (1989-1990), which accord village boards general police, health, and taxing powers.2

1 The town has a population of from 400 to 500 persons, large enough to enact the ordinance at issue in this case. See WASHBURN COUNTY DIRECTORY 1982-83, cited in Brief for Respondents 4, n. 4; Tr. of Oral Arg. 12.

2 Section 61.34(1) provides:

Except as otherwise provided by law, the village board shall have the management and control of the village property, finances, highways, streets, navigable waters, and the public service, and shall have power to act for the government and good order of the village, for its

The ordinance requires a permit for the application of any pesticide to public lands, to private lands subject to public use, or for the aerial application of any pesticide to private lands. § 1.2, 2 App. to Pet. for Cert. 6. A permit applicant must file a form including information about the proposed pesticide use not less than 60 days before the desired use. § 1.3(2), id. at 7. The town board may “deny the permit, grant the permit, or grant the permit with . . . any reasonable conditions on a permitted application related to the protection of the health, safety and welfare of the residents of the Town of Casey.” § 1.3(3), id. at 11-12. After an initial decision, the applicant or any town resident may obtain a hearing to provide additional information regarding the proposed application. §§ 1.3(4), (5), id. at 12-14. When a permit is granted, or granted with conditions, the ordinance further requires the permittee to post placards giving notice of the pesticide use and of any label information prescribing a safe reentry time. § 1.3(7), id. at 14-16. Persons found guilty of violating the ordinance are subject to fines of up to $5,000 for each violation. § 1.3(7)(c), id. at 16.

Respondent Ralph Mortier applied for a permit for aerial spraying of a portion of his land. The town granted him a permit, but precluded any aerial spraying and restricted the lands on which ground spraying would be allowed. Mortier, in conjunction with respondent Wisconsin Forestry/Rights-of-Way/Turf Coalition,3 brought a declaratory judgment action in the Circuit Court for Washburn County against the town of Casey and named board members, claiming that the town of Casey’s ordinance is pre-empted by state and federal law. The Wisconsin Public Intervenor, an assistant attorney general charged under state law with the protection of environmental public rights, WIS.STAT. §§ 165.07, 165.075 (1989-1990), was admitted without objection as a party defendant. On cross-motions for summary judgment, the Circuit Court ruled in favor of Mortier, holding that the town’s ordinance was pre-empted both by FIFRA and by state statute, §§ 94.67-94.71; 2 App. to Pet. for Cert. 14.

The Supreme Court of Wisconsin affirmed in a 4-to-3 decision. Mortier v. Casey, 154 Wis.2d 18, 452 N.W.2d 555 (1990). Declining to address the issue of state-law pre-emption, the court concluded that FIFRA pre-empted the town of Casey’s ordinance because the statute’s text and legislative history demonstrated a clearly manifest congressional intent to prohibit “any regulation of pesticides by local units of government.” Id. at 20, n. 2, and 30.

* * *

commercial benefit and for the health, safety, welfare and convenience of the public, and may carry its powers into effect by license, regulation, suppression, borrowing, taxation, special assessment, appropriation, fine, imprisonment, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants and shall be limited only by express language.

Section 61.34(5) provides:For the purpose of giving to villages the largest measure of self- government in

accordance with the spirit of article XI, section 3, of the [Wisconsin] constitution it is hereby declared that this chapter shall be liberally construed in favor of the rights, powers and privileges of villages to promote the general welfare, peace, good order and prosperity of such villages and the inhabitants thereof.

3 The coalition is an unincorporated, nonprofit association of individual businesses and other associations whose members use pesticides.

II

Under the Supremacy Clause, U.S. CONST., Art. VI, cl. 2, state laws that “interfere with, or are contrary to the laws of congress, made in pursuance of the constitution” are invalid. Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824) (Marshall, C.J.). The ways in which federal law may pre-empt state law are well established and in the first instance turn on congressional intent. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990). Congress’ intent to supplant state authority in a particular field may be expressed in the terms of the statute. Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). Absent explicit pre-emptive language, Congress’ intent to supersede state law in a given area may nonetheless be implicit if a scheme of federal regulation is “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” if “the Act of Congress . . . touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,” or if the goals “sought to be obtained” and the “obligations imposed” reveal a purpose to preclude state authority. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). See Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm’n, 461 U.S. 190, 203-204 (1983). When considering pre- emption, “we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice, supra, 331 U.S. at 230.

Even when Congress has not chosen to occupy a particular field, pre-emption may occur to the extent that state and federal law actually conflict. Such a conflict arises when “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963), or when a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U.S. 52 (1941).

It is, finally, axiomatic that “for the purposes of the Supremacy Clause, the constitutionality of local ordinances is analyzed in the same way as that of statewide laws.” Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713 (1985). See, e.g., City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973).

III

Applying these principles, we conclude that FIFRA does not pre-empt the town’s ordinance either explicitly or implicitly or by virtue of an actual conflict.

A

As the Wisconsin Supreme Court recognized, FIFRA nowhere expressly supersedes local regulation of pesticide use. The court, however, purported to find statutory language “which is indicative” of pre-emptive intent in the statute’s provision delineating the “Authority of States.” 7 U.S.C. § 136v. The key portions of that provision state:

(a) . . . A State may regulate the sale or use of any federally registered

pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.

(b) . . . Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.

Also significant, in the court’s eyes, was FIFRA’s failure to specify political subdivisions

in defining “State” as “a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Trust Territory of the Pacific Islands, and American Samoa.” § 136(aa).

It was not clear to the State Supreme Court, however, “that the statutory language [§§ 136v and 136(aa)] alone evince[d] congress’ manifest intent to deprive political subdivisions of authority to regulate pesticides.” Casey, 154 Wis.2d at 25, 452 N.W.2d at 557-558. It was nevertheless “possible” to infer from the statutory language alone that pesticide regulation by local entities was pre-empted; and when coupled with its legislative history, that language “unmistakably demonstrates the intent of Congress to pre-empt local ordinances such as that adopted by the Town of Casey.” Id. at 28, 452 N.W.2d at 559. The court’s holding thus rested on both §§ 136v and 136(aa) and their legislative history; neither the language nor the legislative history would have sufficed alone. There was no suggestion that absent the two critical sections, FIFRA was a sufficiently comprehensive statute to justify an inference that Congress had occupied the field to the exclusion of the States. Nor have the respondents argued in this Court to that effect. On the other hand, it is sufficiently clear that under the opinion announced by the court below, the State would have been precluded from permitting local authorities to regulate pesticides.

We agree that neither the language of the statute nor its legislative history, standing alone, would suffice to pre-empt local regulation. But it is also our view that, even when considered together, the language and the legislative materials relied on below are insufficient to demonstrate the necessary congressional intent to pre-empt. As for the statutory language, it is wholly inadequate to convey an express preemptive intent on its own. Section 136v plainly authorizes the “States” to regulate pesticides and just as plainly is silent with reference to local governments. Mere silence, in this context, cannot suffice to establish a “clear and manifest purpose” to pre-empt local authority. Rice, supra, 331 U.S. at 230. Even if FIFRA’s express grant of regulatory authority to the States could not be read as applying to municipalities, it would not follow that municipalities were left with no regulatory authority. Rather, it would mean that localities could not claim the regulatory authority explicitly conferred upon the States that might otherwise have been pre-empted through actual conflicts with federal law. At a minimum, localities would still be free to regulate subject to the usual principles of preemption.

Properly read, the statutory language tilts in favor of local regulation. The principle is well settled that local “‘governmental units are “created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them” . . . in [its] absolute discretion.’” Sailors v. Board of Ed. of Kent Cty., 387 U.S. 105, 108 (1967), quoting Reynolds v. Sims, 377 U.S. 533, 575 (1964), quoting Hunter v. Pittsburgh, 207 U.S. 161, 178 (1907). The exclusion of political subdivisions cannot be inferred from the express authorization to the

“State[s]” because political subdivisions are components of the very entity the statute empowers. Indeed, the more plausible reading of FIFRA’s authorization to the States leaves the allocation of regulatory authority to the “absolute discretion” of the States themselves, including the option of leaving local regulation of pesticides in the hands of local authorities.

Certainly no other textual basis for pre-emption exists. Mortier, building upon the decision below, contends that other provisions show that Congress made a clear distinction between nonregulatory authority, which it delegated to the States or their political subdivisions, and regulatory authority, which it expressly delegated to the “State[s]” alone. The provisions on which he relies, however, undercut his contention. Section 136t(b), for example, mandates that the EPA Administrator cooperate with “any appropriate agency of any State or any political subdivision thereof, in carrying out the provisions of this subchapter.” As an initial matter, the section does not limit “the provisions of the subchapter” which localities are authorized to carry out to “nonregulatory” provisions. Moreover, to read this provision as pre-empting localities would also require the anomalous result of pre-empting the actions of any agency to the extent it exercised state-delegated powers that included pesticide regulation. Likewise, § 136f(b) requires manufacturers to produce records for the inspection upon the request of any employee of the EPA “or of any State or political subdivision, duly designated by the Administrator.” Section 136u(a)(1), however, authorizes the Administrator to “delegate to any State . . . the authority to cooperate in the enforcement of this [Act] through the use of its personnel.” If the use of “State” in FIFRA impliedly excludes subdivisions, it is unclear why the one provision would allow the designation of local officials for enforcement purposes while the other would prohibit local enforcement authority altogether.

Mortier, like the court below and other courts that have found pre-emption, attempts to compensate for the statute’s textual inadequacies by stressing the legislative history. Casey, 154 Wis.2d at 25-28, 452 N.W.2d at 558-559; Professional Lawn Care Association, 909 F.2d at 933-934. The evidence from this source, which centers on the meaning of what would become § 136v, is at best ambiguous. The House Agriculture Committee Report accompanying the proposed FIFRA amendments stated that it had “rejected a proposal which would have permitted political subdivisions to further regulate pesticides on the grounds that the 50 States and the Federal Government should provide an adequate number of regulatory jurisdictions.” H.R.Rep. No. 92-511, p. 16 (1971). While this statement indicates an unwillingness by Congress to grant political subdivisions regulatory authority, it does not demonstrate an intent to prevent the States from delegating such authority to its subdivisions, and still less does it show a desire to prohibit local regulation altogether. At least one other statement, however, concededly goes further. The Senate Committee on Agriculture and Forestry Report states outright that it “considered the decision of the House Committee to deprive political subdivisions of States and other local authorities of any authority or jurisdiction over pesticides and concurs with the decision of the House of Representatives.” S.Rep. No. 92-838, p. 16 (1972), U.S.Code Cong. & Admin.News 1972, pp. 3993, 4008.

But other Members of Congress clearly disagreed. The Senate Commerce Committee, which also had jurisdiction over the bill, observed that “[w]hile the [Senate] Agriculture Committee bill does not specifically prohibit local governments from regulating pesticides, the report of that committee states explicitly that local governments cannot regulate pesticides in any

manner. Many local governments now regulate pesticides to meet their own specific needs which they are often better able to perceive than are State and Federal regulators.” S.Rep. No. 92-970, p. 27 (1972), U.S.Code Cong. & Admin.News 1972, p. 4111. To counter the language in the Agriculture and Forestry Committee Report, the Commerce Committee proposed an amendment expressly authorizing local regulation among numerous other, unrelated proposals. This amendment was rejected after negotiations between the two Committees. See 118 Cong.Rec. 32251 (1972); H.R.Conf.Rep. No. 92-1540, p. 33 (1972), U.S.Code Cong. & Admin.News 1972, p. 3993.

As a result, matters were left with the two principal Committees responsible for the bill in disagreement over whether it pre-empted pesticide regulation by political subdivisions. It is important to note, moreover, that even this disagreement was confined to the pre-emptive effect of FIFRA’s authorization of regulatory power to the States in § 136v. None of the Committees mentioned asserted that FIFRA pre-empted the field of pesticide regulation. Like FIFRA’s text, the legislative history thus falls far short of establishing that pre-emption of local pesticide regulation was the “clear and manifest purpose of Congress.” Rice, 331 U.S. at 230. We thus agree with the submission in the amicus brief of the United States expressing the views of the EPA, the agency charged with enforcing FIFRA.4

4 Justice SCALIA’s foray into legislative history runs into several problems. For one, his concurrence argues that the House Agriculture Committee made it clear that it wanted localities “out of the picture” because its Report specifies as grounds for rejecting a proposal permitting the localities to regulate pesticides the observation that the Federal Government and the 50 States provided an adequate number of regulatory jurisdictions. Post, at 2488. But the only way to infer that the Committee opposed not only a direct grant of regulatory authority upon localities but also state delegation of authority to regulate would be to suppose that the term “regulatory jurisdictions” meant regulatory for the purposes of exercising any authority at all as opposed to exercising authority derived from a direct federal grant. H.R.Rep. No. 92-511, p. 16 (1971). The language of the Report does not answer this question one way or another.

The concurrence further contends that the Senate Agriculture Committee unequivocally expressed its view that § 136v should be read to deprive localities of regulatory authority over pesticide. This may be true, but it is hardly dispositive. Even if § 136v were sufficiently ambiguous to justify reliance on legislative history, the meaning a committee puts forward must at a minimum be within the realm of meanings that the provision, fairly read, could bear. Here the Report clearly states that § 136v should be read as a prohibition, but it is just as clear that the provision is written exclusively in terms of a grant. No matter how clearly its report purports to do so, a committee of Congress cannot take language that could only cover “flies” or “mosquitoes,” and tell the courts that it really covers “ducks.” Finally, the concurrence suggests that the Senate Commerce Committee Report reconfirmed the views of the two Agriculture Committees that § 136v prohibited local pesticide regulation. But the Commerce Committee at no point states, clearly or otherwise, that it agrees that the section before it does this. Rather, the Report states that “[w]hile the Agriculture Committee bill does not specifically prohibit local governments from regulating pesticides, the report of that committee states explicitly that local governments cannot regulate pesticides in any manner.” S.Rep. No. 92-970, p. 27 (1972) U.S.Code Cong. & Admin.News 1972, p. 4111. The Commerce Committee, indeed, went on to assert its policy differences with its Agriculture counterpart. It did this by attempting to strike at the root of the problem through changing the language of the provision itself. Far from showing agreement with its rival, the Commerce Committee’s words and actions show a body that, first, conceded no ground on the meaning of the disputed language and then, second, raised the stakes by seeking to insure that the language could go only its way. On both the existence and the desirability of a prohibition on local regulation, there can be no doubt that the Commerce and Agriculture Committees stood on the opposite sides of the Senate debate.

As for the propriety of using legislative history at all, common sense suggests that inquiry benefits from reviewing additional information rather than ignoring it. As Chief Justice Marshall put it, “[w]here the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived.” United States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304 (1805). Legislative history materials are not generally so

B

Likewise, FIFRA fails to provide any clear and manifest indication that Congress sought to supplant local authority over pesticide regulation impliedly. In particular, we reject the position of some courts, but not the court below, that the 1972 amendments transformed FIFRA into a comprehensive statute that occupied the field of pesticide regulation, and that certain provisions opened specific portions of the field to state regulation and much smaller portions to local regulation. [citations omitted] On this assumption, it has been argued, § 136v(a) could be viewed as opening the field of general pesticide regulation to the States yet leaving it closed to political subdivisions.

This reasoning is unpersuasive. As an initial matter, it would still have to be shown under ordinary canons of construction that FIFRA’s delegation of authority to “State[s]” would not therefore allow the States in turn to redelegate some of this authority to their political subdivisions either specifically or by leaving undisturbed their existing statutes that would otherwise provide local government with ample authority to regulate. We have already noted that § 136v(a) can be plausibly read to contemplate precisely such redelegation. The term “State” is not self-limiting since political subdivisions are merely subordinate components of the whole. The scattered mention of political subdivisions elsewhere in FIFRA does not require their exclusion here. The legislative history is complex and ambiguous.

More importantly, field pre-emption cannot be inferred. In the first place, § 136v itself undercuts such an inference. The provision immediately following the statute’s grant of regulatory authority to the States declares that “[s]uch State shall not impose or continue in effect any requirements for labeling and packaging in addition to or different from those required under” FIFRA. § 136v(b). This language would be pure surplusage if Congress had intended to occupy the entire field of pesticide regulation. Taking such pre-emption as the premise, § 136v(a) would thus grant States the authority to regulate the “sale or use” of pesticides, while § 136v(b) would superfluously add that States did not have the authority to regulate “labeling or packaging,” an addition that would have been doubly superfluous given FIFRA’s historic focus on labeling to begin with. See Monsanto, 467 U.S. at 991.

Nor does FIFRA otherwise imply pre-emption. While the 1972 amendments turned FIFRA into a “comprehensive regulatory statute,” Monsanto, supra at 991, the resulting scheme was not “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Rice, supra, 331 U.S. at 230. To the contrary, the statute leaves ample room for States and localities to supplement federal efforts even absent the express regulatory authorization of § 136v(a). FIFRA addresses numerous aspects of pesticide control in considerable detail, in particular: registration and classification, § 136a; applicator certification, § 136b; inspection of pesticide production facilities, §§ 136e and 136g; and the possible ban and

misleading that jurists should never employ them in a good-faith effort to discern legislative intent. Our precedents demonstrate that the Court’s practice of utilizing legislative history reaches well into its past. See, e.g., Wallace v. Parker, 6 Pet. 680, 687-690, 8 L.Ed. 543 (1832). We suspect that the practice will likewise reach well into the future.

seizure of pesticides that are misbranded or otherwise fail to meet federal requirements, § 136k. These provisions reflect the general goal of the 1972 amendments to strengthen existing labeling requirements and ensure that these requirements were followed in practice. § 136k. See Monsanto, supra, 467 U.S. at 991-992. FIFRA nonetheless leaves substantial portions of the field vacant, including the area at issue in this case. FIFRA nowhere seeks to establish an affirmative permit scheme for the actual use of pesticides. It certainly does not equate registration and labeling requirements with a general approval to apply pesticides throughout the Nation without regard to regional and local factors like climate, population, geography, and water supply. Whatever else FIFRA may supplant, it does not occupy the field of pesticide regulation in general or the area of local use permitting in particular.

In contrast to other implicitly pre-empted fields, the 1972 enhancement of FIFRA does not mean that the use of pesticides can occur “‘only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands.’” City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. at 634, quoting Northwest Airlines v. Minnesota, 322 U.S. 292, 303 (1944) (Jackson, J., concurring). The specific grant of authority in § 136v(a) consequently does not serve to hand back to the States powers that the statute had impliedly usurped. Rather, it acts to ensure that the States could continue to regulate use and sales even where, such as with regard to the banning of mislabeled products, a narrow pre-emptive overlap might occur. As noted in our discussion of express pre-emption, it is doubtful that Congress intended to exclude localities from the scope of § 136v(a)’s authorization, but however this may be, the type of local regulation at issue here would not fall within any impliedly pre-empted field.

C

Finally, like the EPA, we discern no actual conflict either between FIFRA and the ordinance before us or between FIFRA and local regulation generally. Mortier does not rely, nor could he, on the theory that compliance with the ordinance and FIFRA is a “physical impossibility.” Florida Lime & Avocado Growers, 373 U.S. at 142-143. Instead, he urges that the town’s ordinance stands as an obstacle to the statute’s goals of promoting pesticide regulation that is coordinated solely on the federal and state levels, that rests upon some degree of technical expertise, and that does not unduly burden interstate commerce. Each one of these assertions rests on little more than snippets of legislative history and policy speculations. None of them is convincing.

To begin with, FIFRA does not suggest a goal of regulatory coordination that sweeps either as exclusively or as broadly as Mortier contends. The statute gives no indication that Congress was sufficiently concerned about this goal to require pre-emption of local use ordinances simply because they were enacted locally. Mortier suggests otherwise, quoting legislative history which states that FIFRA establishes “a coordinated Federal-State administrative system to carry out the new program,” and raising the specter of gypsy moth hordes safely navigating through thousands of contradictory and ineffective municipal regulations. H.R.Rep. No. 92-511, at 1-2. As we have made plain, the statute does not expressly or impliedly preclude regulatory action by political subdivisions with regard to local use. To the contrary, FIFRA implies a regulatory partnership between federal, state, and local governments.

Section 136t(b) expressly states that the Administrator “shall cooperate with . . . any appropriate agency of any State or any political subdivision thereof, in carrying out the provisions of this [Act] and in securing uniformity of regulations.” Nor does FIFRA suggest that any goal of coordination precludes local use ordinances because they were enacted independently of specific state or federal oversight. As we have also made plain, local use permit regulations—unlike labeling or certification—do not fall within an area that FIFRA’s “program” pre-empts or even plainly addresses. There is no indication that any coordination which the statute seeks to promote extends beyond the matters with which it deals, or does so strongly enough to compel the conclusion that an independently enacted ordinance that falls outside the statute’s reach frustrates its purpose.

FIFRA provides even less indication that local ordinances must yield to statutory purposes of promoting technical expertise or maintaining unfettered interstate commerce. Once more, isolated passages of legislative history that were themselves insufficient to establish a pre-emptive congressional intent do not by themselves establish legislative goals with pre-emptive effect. See, e.g., S.Rep. No. 92-838, at 16, U.S.Code Cong. & Admin.News 1972, p. 4007. Mortier nonetheless asserts that local ordinances necessarily rest on insufficient expertise and burden commerce by allowing, among other things, large-scale crop infestation. As with the specter of the gypsy moth, Congress is free to find that local regulation does wreak such havoc and enact legislation with the purpose of preventing it. We are satisfied, however, that Congress has not done so yet.

IV

We hold that FIFRA does not pre-empt the town of Casey’s ordinance regulating the use of pesticides. The judgment of the Wisconsin Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

Justice SCALIA, concurring in the judgment.

I agree with the Court that FIFRA does not pre-empt local regulation, because I agree that the terms of the statute do not alone manifest a pre-emption of the entire field of pesticide regulation. If there were field preemption, 7 U.S.C. § 136v would be understood not as restricting certain types of state regulation (for which purpose it makes little sense to restrict States but not their subdivisions) but as authorizing certain types of state regulation (for which purpose it makes eminent sense to authorize States but not their subdivisions). But the field-pre-emption question is certainly a close one. Congress’ selective use of “State” and “State and political subdivisions thereof” would suggest the authorizing rather than restricting meaning of § 136v, were it not for the inconsistent usage pointed to in Part I of the Court’s opinion.

As the Court today recognizes, the Wisconsin justices agreed with me on this point, and would have come out the way that I and the Court do but for the Committee Reports contained in FIFRA’s legislative history. I think they were entirely right about the tenor of those Reports. Their only mistake was failing to recognize how unreliable Committee Reports are—not only as

a genuine indicator of congressional intent but as a safe predictor of judicial construction. We use them when it is convenient, and ignore them when it is not.

Consider how the case would have been resolved if the Committee Reports were taken seriously: The bill to amend FIFRA (H.R. 10729) was reported out of the House Committee on Agriculture on September 25, 1971. According to the accompanying Committee Report:

The Committee rejected a proposal which would have permitted political subdivisions to further regulate pesticides on the grounds that the 50 States and the Federal Government should provide an adequate number of regulatory jurisdictions.

H.R.Rep. No. 92-511, p. 16 (1971).Had the grounds for the rejection not been specified, it would be possible to entertain the

Court’s speculation, that the Committee might have been opposing only direct conferral upon localities of authority to regulate, in contrast to state delegation of authority to regulate. But once it is specified that an excessive number of regulatory jurisdictions is the problem—that “50 States and the Federal Government” are enough—then it becomes clear that the Committee wanted localities out of the picture, and thought that its bill placed them there.

The House Agriculture Committee’s bill was passed by the full House on November 9, 1971, and upon transmittal to the Senate was referred to the Senate Committee on Agriculture and Forestry, which reported it out on June 7, 1972. The accompanying Committee Report both clearly confirms the foregoing interpretation of the House Committee Report, and clearly endorses the disposition that interpretation produces.

[We have] considered the decision of the House Committee to deprive political subdivisions of States and other local authorities of any authority or jurisdiction over pesticides and concu[r] with the decision of the House of Representatives. Clearly, the fifty States and the Federal Government provide sufficient jurisdictions to properly regulate pesticides. Moreover, few, if any, local authorities whether towns, counties, villages, or municipalities have the financial wherewithal to provide necessary expert regulation comparable with that provided by the State and Federal Governments. On this basis and on the basis that permitting such regulation would be an extreme burden on interstate commerce, it is the intent that section [136v], by not providing any authority to political subdivisions and other local authorities of or in the States, should be understood as depriving such local authorities and political subdivisions of any and all jurisdiction and authority over pesticides and the regulation of pesticides.

S.Rep. No. 92-838, pp. 16-17 (1972), U.S.Code Cong. & Admin.News 1972, p. 4008.

Clearer committee language “directing” the courts how to interpret a statute of Congress could not be found, and if such a direction had any binding effect, the question of interpretation in this case would be no question at all.

But there is still more. After the Senate Agriculture Committee reported the bill to the floor, it was re-referred to the Committee on Commerce, which reported it out on July 19, 1972. The Report of that Committee, plus the accompanying proposals for amendment of H.R. 10729, reconfirmed the interpretation of the Senate and House Agriculture Committees. The Report said:

While the Agriculture Committee bill does not specifically prohibit local governments from regulating pesticides, the report of that committee states explicitly that local governments cannot regulate pesticides in any manner. Many local governments now regulate pesticides to meet their own specific needs which they are often better able to perceive than are State and Federal regulators.

S.Rep. No. 92-970, p. 27 (1972), U.S.Code Cong. & Admin.News 1972, p. 4111.The Court claims that this passage, plus the amendment that it explains, show that “the

two principal Committees responsible for the bill [were] in disagreement over whether it pre-empted pesticide regulation by political subdivisions.” I confess that I am less practiced than others in the science of construing legislative history, but it seems to me that quite the opposite is the case. The Senate Commerce Committee Report does not offer a different interpretation of the pre-emptive effect of H.R. 10729. To the contrary, it acknowledges that the Report of the originating Committee “states explicitly that local governments cannot regulate pesticides in any manner,” and then proceeds to a statement (“Many local governments now regulate pesticides, etc.”) which questions not the existence but the desirability of that restriction on local regulatory power. And since it agreed with the interpretation but did not agree with the policy, the Senate Commerce Committee proposed an amendment to H.R. 10729, whose purpose, according to its Report, was to “giv[e] local governments the authority to regulate the sale or use of a pesticide beyond the requirements imposed by State and Federal authorities.” S.Rep. No. 92-970, supra, at 27, U.S.Code Cong. & Admin.News 1972, p. 4111. In a supplemental Report, the Senate Agriculture Committee opposed the Commerce Committee’s amendment, which it said would “giv[e] local governments the authority to regulate the sale or use of a pesticide,” thereby “vitiat[ing]” the earlier Agriculture Committee Report. S.Rep. No. 92-838, pt. 2, supra, at 46-47, U.S.Code Cong. & Admin.News 1972, p. 4066. This legislative history clearly demonstrates, I think, not (as the Court would have it) that the two principal Senate Committees disagreed about whether H.R. 10729 pre-empted local regulation, but that they were in complete accord that it did, and in disagreement over whether it ought to.

Of course that does not necessarily say anything about what Congress as a whole thought. Assuming that all the members of the three Committees in question (as opposed to just the relevant Subcommittees) actually adverted to the interpretive point at issue here—which is probably an unrealistic assumption—and assuming further that they were in unanimous agreement on the point, they would still represent less than two-fifths of the Senate, and less than one-tenth of the House. It is most unlikely that many Members of either Chamber read the pertinent portions of the Committee Reports before voting on the bill—assuming (we cannot be sure) that the Reports were available before the vote. Those pertinent portions, though they dominate our discussion today, constituted less than a quarter-page of the 82-page House Agriculture Committee Report, and less than a half-page each of the 74-page Senate Agriculture Committee Report, the 46-page Senate Commerce Committee Report, and the 73-page Senate

Agriculture Committee Supplemental Report. Those Reports in turn were a minuscule portion of the total number of reports that the Members of Congress were receiving (and presumably even writing) during the period in question. In the Senate, at least, there was a vote on an amendment (the Commerce Committee proposal) that would have changed the result of the supposed interpretation. But the full Senate could have rejected that either because a majority of its Members disagreed with the Commerce Committee’s proposed policy; or because they disagreed with the Commerce Committee’s and the Agriculture Committee’s interpretation (and thus thought the amendment superfluous); or because they were blissfully ignorant of the entire dispute and simply thought that the Commerce Committee, by asking for recommittal and proposing 15 amendments, was being a troublemaker; or because three different minorities (enough to make a majority) had each of these respective reasons. We have no way of knowing; indeed, we have no way of knowing that they had any rational motive at all.

All we know for sure is that the full Senate adopted the text that we have before us here, as did the full House, pursuant to the procedures prescribed by the Constitution; and that that text, having been transmitted to the President and approved by him, again pursuant to the procedures prescribed by the Constitution, became law. On the important question before us today, whether that law denies local communities throughout the Nation significant powers of self-protection, we should try to give the text its fair meaning, whatever various committees might have had to say—thereby affirming the proposition that we are a Government of laws, not of committee reports. That is, at least, the way I prefer to proceed.

If I believed, however, that the meaning of a statute is to be determined by committee reports, I would have to conclude that a meaning opposite to our judgment has been commanded three times over—not only by one committee in each House, but by two Committees in one of them. Today’s decision reveals that, in their judicial application, Committee reports are a forensic rather than an interpretive device, to be invoked when they support the decision and ignored when they do not. To my mind that is infinitely better than honestly giving them dispositive effect. But it would be better still to stop confusing the Wisconsin Supreme Court, and not to use committee reports at all.

* * *

The Court responds to this concurrence in a footnote, n. 4, asserting that the legislative history is really ambiguous. I leave it to the reader to judge. I must reply, however, to the Court’s assertion that the “practice of utilizing legislative history reaches well into [our] past,” ante, n. 4, for which proposition it cites an opinion written by none other than John Marshall himself, Wallace v. Parker, 6 Pet. 680, 8 L.Ed. 543 (1832). What the Court neglects to explain is that what it means by the “practice of utilizing legislative history” is not the practice of utilizing legislative history for the purpose of giving authoritative content to the meaning of a statutory text—which is the only practice I object to. Marshall used factual statements in the report of an Ohio legislative committee “as part of the record” in the case, id. at 689, 690, assuming that that was permissible “under the laws of Ohio,” ibid. I do not object to such use. But that is quite different from the recent practice of relying upon legislative material to provide an authoritative interpretation of a statutory text. That would have shocked John Marshall. As late as 1897, we stated quite clearly that there is “a general acquiescence in the doctrine that debates in Congress

are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body.” United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 318. And even as late as 1953, the practice of using legislative history in that fashion was novel enough that Justice Jackson could dismiss it as a “psychoanalysis of Congress,” and a “weird endeavor.” United States v. Public Utilities Comm’n of Cal., 345 U.S. 295, 319 (concurring opinion). It is, in short, almost entirely a phenomenon of this century—and in its extensive use a very recent phenomenon. See, e.g., Carro & Brann, Use of Legislative Histories by the United States Supreme Court: A Statistical Analysis, 9 J. LEGIS. 282 (1982); Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term , 68 IOWA L.REV. 195, 196-197 (1983).

I am depressed if the Court is predicting that the use of legislative history for the purpose I have criticized “will . . . reach well into the future.” But if it is, and its prediction of the future is as accurate as its perception that it is continuing a “practice . . . reach[ing] well into [our] past,” I may have nothing to fear.

Notes and Questions

1. Preemption, according to the Court, turns on legislative “intent.” Most scholars, however, regard the notion of legislative intent as “incoherent.” William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1507 (1987) [hereinafter Eskridge]; see generally Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593, 597-606 (1995). Scholars argue that “judges have substantial lawmaking discretion in applying statutes.” Eskridge at 1507. Are you satisfied that the Court in Mortier has discovered Congress’ intent on the preemption issue or has the Court exercised substantial lawmaking discretion?

2. Consider the various items that the Court dealt with in its search for legislative intent:

a) the text of FIFRA § 136(a) & (b)

b) the omission of “political subdivision” from the definition of “State” in § 136(aa) leading to the negative implication (expressio unius est exclusio alterius) that political subdivisions are preempted from exercising regulatory authority.

c) the invocation of other provisions of the statute by both petitioner, § 136(a)(1), and respondent, § 136(b) and § 136(b), to clarify the meaning of § 136(a).

d) the invocation of legislative history by both petitioner and respondent in the form of Committee Reports of the House Agriculture Committee, the Senate Agricultural and Forestry Committee, the Senate Commerce Committee, and a Conference Committee appointed to resolve the differences between the Committees.

e) the views of the EPA, the administrative agency charged with enforcing the statute.

Which of these items should be given the greatest weight in determining legislative intent and why? Which should be given lesser weight or rejected entirely and why?

3. A helpful roadmap to the discussion of implied preemption in this case is provided by the following excerpt from Richard J. Pierce, Jr., Regulation, Deregulation, Federalism and Administrative Law: Agency Power to Preempt State Regulation, 46 U. PITT. L. REV. 607 at 630 (1985) (footnote omitted):

In its recent decisions, the Court has divided the many complicated strands of preemption analysis into three categories—federal occupation of the field, direct conflicts, and obstacles to accomplishment of congressional goals.

Congress can occupy an entire field of regulation to the exclusion of all state regulation, but the Court will not conclude that Congress has done so unless it finds either an explicit intent to preempt all state authority or a federal regulatory scheme so pervasive that it demonstrates an implicit congressional intent to occupy the field.

Direct conflicts between federal and state regulatory requirements present the easiest case for preemption. A conflict sufficient to invalidate a state regulatory requirement can exist in either of two cases: (1) when it is impossible to comply with both federal and state law; or (2) when the objectives of state and federal requirements conflict.

Finally, the most difficult class of cases involves claims that a state regulatory action frustrates policies underlying federal regulation. In these cases, the Court must consider carefully the purposes of federal regulation and the degree of impact of the state regulation on the federal government’s ability to further those purposes. Sometimes, for instance, a major purpose of federal regulation is to achieve uniform regulation that is not possible if states can supplement federal regulation.

Are you satisfied that the Court in Mortier has successfully integrated its discussion of each strand of preemption analysis with the items bearing on legislative intent enumerated in Note 2?

Based on your reading of the Ogontz case, supra, should state courts add “obstacle” preemption to their repertoire?

4. Think of the statutory interpretation issues that the town attorney who drafted the challenged ordinance had to face: the empowerment issue; express state statutory preemption; implied state statutory preemption; express federal statutory preemption; and implied federal statutory preemption. Consider also the diverse body of legal materials that is potentially relevant: MATTHEWS, MUNICIPAL ORDINANCES, NATIONAL TREATISES ON LOCAL GOVERNMENT LAW; FRANK GRAD, TREATISE ON ENVIRONMENTAL LAW (8 vols. 1998); a publication of the Municipal Law Section of the Wisconsin Bar Association devoted to environmental law issues; a

similar publication of the A.B.A.’s State and Local Government Law Section; a review of the text and legislative history of state environmental statutes; a similar review of federal environmental legislation; a review of state and federal court and administrative agency decisions on the preemption question. Was it a good idea for the state of Wisconsin to create and fund the office of Public Intervenor to, in effect, pick up the costs of litigating challenges to state and local environmental legislation? Can you make out a case for state funding of technical assistance and training programs for attorneys advising towns like Casey, Wisconsin, on environmental matters? Why should such state funded programs and services be limited to the environment? Should the state go further and mandate continuing legal education programs for municipal attorneys on current issues? If so, is it realistic to expect the taxpayers of Casey, Wisconsin, to pay for such programs?

5. For a good short overview of federal preemption law, see ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 284-306 (1997).

A more extensive treatment was authored by a task force of the United States Appellate Judges Conference: KENNETH STARR, ET. AL., THE LAW OF PREEMPTION (1991).

6. Is the real problem which gives rise to the complexity and contradictions of the law of preemption an institutional failure in the legislative and administrative process? Consider the following recommendations of the ACIR:

Congressional Preemption Notes and Executive Agency Notifications

The Commission finds that federal preemptions often affect vital interests of the states and their local governments. As such, preemption should not be enacted by the Congress without thorough consideration of their likely impacts and without provisions for periodic review after enactment. It also should be recognized that the great diversity among the states and their local governments may affect substantially the impact and effectiveness of federal preemptions from place to place.

The Commission recommends, therefore, that the Congress provide by legislation for the preparation and consideration, in both committee and floor debate in both houses of the Congress, of preemption notes concerning any bill affecting the powers of state or local governments. Such notes should express, in clear language, any intent of the legislation to preempt or not to preempt state or local government powers, justify the preemption in accordance with the United States Constitution, stipulate and justify the scope of such preemption, present options for minimizing the extent of federal preemption and for providing flexibility to state and local governments in complying with any proposed preemption, and provide either for a sunset provision or for periodic review of the preemption.

The Commission recommends, furthermore, that the Congress amend the Administrative Procedure Act to provide that any administrative rulemaking

proposed by the Executive Branch that would affect the powers of state or local governments be required to be published in the Federal Register with a preemption note stating, in clear language, the extent of any federal preemption intended and citing the explicit statutory provision on which any preemptive rules would be based.

State and Local Vigilance on Federal Preemptions

The Commission finds that the state and local governments have the greatest stake in limiting the use of federal preemption powers and in ensuring that those powers are used in a manner that reinforces both federalism and genuine national interests.

The Commission recommends, therefore, that the national associations representing state and local governments, acting individually and jointly, (1) monitor the introduction and consideration of preemption legislation, as well as the development of preemptive administrative regulations, (2) seek to influence them in accordance with the principles set forth above, and (3) join litigation to limit the use of the federal preemption power to necessary and proper cases.

C. Regulatory Federalism

Regulatory Federalism is a fact of life for state and local officials and their legal advisors. See generally ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS, REGULATORY FEDERALISM: POLICY, PROCESS, IMPACT AND REFORM (1984); DONALD F. KETTL, THE REGULATION OF AMERICAN FEDERALISM (1987). The following excerpts from a report by the A.C.I.R give a typology and inventory of Federal statutes which displace state and local decision-making.

U.S. Advisory Commission on Intergovernmental RelationsFederal Statutory Preemption of State and Local Authority

Approaches to Preemption

Several approaches to preemption are evident in the statutes, and the development of other approaches appears to be limited only by the innovative capacity of the members of Congress. The Congress has authorized the issuance of administrative and judicial rulings in cases where, short of total preemption, a specific statutory provision cannot clarify the degree of preemption.

There are three broad categories of federal preemption statutes—dual sovereignty, partial federal preemption, and total federal preemption. Each category is described below.

Dual Sovereignty. Without dual sovereignty, whereby the federal government has

supremacy for certain purposes and the states remain independent for other purposes, there would be no federal system in the United States. The governmental system would be either unitary or confederate. In establishing a federal system, the drafters of the U.S. Constitution recognized that there could be a clash between congressional power and state power; therefore, they included the “supremacy of the laws” clause (Art. VI) to ensure the integrity of national laws in such cases.

Experience with the Articles of Confederation convinced the drafters of the Constitution of the need to delegate to the Congress the power to regulate interstate commerce. This power has proven to be the source of most, but not all, preemptive statutes. Its dormant nature and wide reach were described in 1949 by U.S. Supreme Court Justice Robert H. Jackson in the following terms:

The commerce power is one of the most prolific sources of national power and an equally prolific source of conflict with legislation of the states. While the Constitution vests in Congress the power to regulate commerce among the states, it does not say what the states may or may not do in the absence of congressional action, nor how to draw the line between what is and what is not commerce among the states. Perhaps even more than by interpretation of its written word, this Court has advanced the solidarity and prosperity of this nation by the meaning it has given to these great silences of the Constitution.

There are three types of dual sovereignty—state powers not subject to preemption, direct and positive conflict between state and federal laws, and administrative or judicial rulings precluding preemption. These types can be described as follows.

State Powers Not Subject to Preemption. The states’ taxation power cannot be preempted formally by the Congress in the absence of evidence that a state tax imposes an inordinate burden on interstate commerce. For example, the U.S. Supreme Court in 1975 held that the constitutional prohibition of the levying of “imposts or duties on imports” by the states without the consent of the Congress does not prohibit the levying of a nondiscriminatory property tax on imported products.

The Congress, however, may exercise the commerce power to nullify state taxation. For example, the U.S. District Court for the Northern District of California ruled in 1981 that “as a matter of federal supremacy, the power of the state to discriminate against rail transportation property for purposes of applying tax rates was preempted by the passage of the Railroad Revitalization and Regulatory Reform Act . . . in 1976.” The Court also has held that states cannot require out-of-state mail order firms to collect state use taxes unless such firms have a clear nexus with a state or unless the Congress permits such taxation.

The U.S. Supreme Court has ruled that states have the power to enter into nonpolitical compacts with each other. Although the U.S. Constitution states that an interstate compact requires the consent of Congress, the Court in 1893 held that such consent is required only if the states desire to enter into “political” compacts affecting the balance of power between the states and the Union.

Direct and Positive Conflict between State and Federal Laws. The Congress, in exercising its delegated powers, often includes a legislative provision stipulating that a state law on the same subject is valid unless there is a direct and positive conflict between the two, in which case the supremacy clause of the U.S. Constitution provides for the prevalence of the federal law. For example, in enacting the Civil Rights Act of 1964, the Congress stipulated that:

Nothing in this Act shall be construed as indicating an intent on the part of Congress to occupy the field in which any such title operates to the exclusion of state laws on the same subject matter, nor shall any provision of this Act be construed as invalidating any provision of state law unless such provision is inconsistent with any of the purposes of this Act, or any provision thereof.

Similarly, the Gun Control Act of 1968 stresses:

No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any state on the same matter, unless there is a direct and positive conflict between such provision and the law of the state so that the two cannot be reconciled or consistently stand together.

The Drug Abuse Control Amendments of 1965 contain an almost identical provisions.

The Federal Railroad Safety Act of 1970 specifically authorizes the states to adopt laws, rules, regulations, orders, and standards that are more stringent than the counterpart federal ones “when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce.”

The Occupational Safety and Health Act of 1970 contains slightly different wording: “Nothing in this Act shall prevent any state agency or court from asserting jurisdiction under state law over any occupational safety or health issues with respect to which no [federal] standard is in effect . . . .”

Administrative or Judicial Rulings Precluding Federal Preemption. The Voting Rights Act of 1965 is a total preemption statute only if two conditions are met in a state or its political subdivisions—(l) a voting device, such as a literacy test, was employed in 1964 and (2) less than 50 percent of the electorate cast ballots in the preceding presidential election. The 1965 law was designed to prevent the abridgment of voting rights because of race or color.

The 1975 amendments to the act broadened the coverage to include language minorities, defined as “persons who are American Indian, Asian American, Alaskan Natives, or of Spanish heritage,” and cited the Fourteenth and Fifteenth Amendments as authority for the act. The language minority “triggers” are pulled if either of the following conditions applies:

(1) More than 5 percent of the citizens of voting age in a state or political

subdivision are members of one language group and less than 50 percent of all citizens of voting age voted in the 1972 presidential election.

(2) More than 5 percent of the citizens of voting age in a jurisdiction are members of one language group and the illiteracy rate of the group exceeds the national illiteracy rate.

Any proposed change in the election system of a covered state or local government must be submitted to the U.S. Attorney General. No change may be made unless the Attorney General does not register an objection within 60 days or the U.S. District Court for the District of Columbia issues a declaratory judgment that the proposed change would not abridge the right to vote of citizens protected by the act.

Whereas the Voting Rights Act provides for either an administrative or a judicial ruling precluding federal preemption, the Transportation Safety Act of 1974 provides for only an administrative ruling by the Materials Transportation Bureau of the U.S. Department of Transportation. To avoid preemption, state requirements must afford an equal or greater level of protection than federal requirements and must not place an unreasonable burden on interstate commerce.

In introducing consistency rulings of the Materials Transportation Bureau, the Research and Special Programs Administration of the Department of Transportation in 1984 wrote that the Congress, in effect, intended to establish a type of dual authority to regulate in the field.

Despite the dominant role that Congress contemplated for departmental standards, there are certain aspects of hazardous materials transportation that are not amenable to exclusive nationwide regulation. One example is traffic control. Although the Federal Government can regulate in order to establish certain national standards promoting the safe, smooth flow of highway traffic, maintaining this in the face of short-term disruption is necessarily a predominantly local responsibility. Another aspect of hazardous materials transportation that is not amenable to effective nationwide regulation is the problem of safety hazards which are peculiar to a local area. To the extent that nationwide regulations do not adequately address an identified safety hazard because of unique local conditions, state or local governments can regulate narrowly for the purpose of eliminating or reducing the hazard. The mere claim of uniqueness, however, is insufficient to insulate a non-federal requirement from the preemption provisions of the HMTA.

An example of an administrative ruling is the request of the Nuclear Assurance Corporation for a determination about whether the prohibition of the transportation of radioactive materials on the facilities of the New York State Thruway Authority is inconsistent with and thereby preempted by the Hazardous Materials Transportation Safety Act of 1974. The key question was whether the corporation could comply with both the Thruway Authority rules and federal rules. The bureau held that the authority’s “rule is not based on any finding that transportation of highway route controlled-quantity radioactive materials over the Thruway would present an unacceptable safety risk” and the “rule thus stands as a repudiation of the

Department’s rule of national applicability on highway routing of radioactive materials.”

Partial Federal Preemption

Under partial federal preemption, the Congress by statute, or federal administrative agencies by rules and regulations, may establish minimum national standards for a function or service and authorize the states to continue to exercise primary regulatory responsibility, provided that state standards are at least as high as the national minimum and are enforced by state authorities. This general type of preemption permits a state to tailor regulatory programs to meet special needs, conditions, and preferences, provided that the supervising federal agency certifies the state’s programs.

Partial preemption permits dual regulation at the sufferance of the Congress, which at any time may preempt totally the responsibility for a regulatory function. In contrast to the type of dual sovereignty inherent in a federal system, the states under partial federal preemption may not continue to exercise primary regulatory responsibility unless each state voluntarily submits a plan to the appropriate federal agency and the agency certifies the plan as being in conformance with the congressional statute.

In this section, three types of partial federal preemption of state and local government authority are described: standard, combined, and state transfer of regulatory authority.

Standard Partial Preemption. Standard partial federal preemption can be described as “contingent” total preemption based on the “gun behind the door” theory that states have to be forced to initiate action to meet minimum national standards under the threat of losing primacy in regulating the partially preempted function. Under standard partial federal preemption, a state law supersedes the corresponding national law if state standards are equal to or higher than the national standards.

The Water Quality Act of 1965 was the first partial federal preemption statute. The law directed that each state adopt “water quality standards applicable to interstate waters or portions thereof within such state” as well as an implementation and enforcement plan.” The Secretary of the Interior (succeeded by the EPA Administrator) is authorized to promulgate interstate water quality standards, which become effective at the end of six months in the event that a state fails to establish adequate standards.

The federal role was strengthened by other congressional enactments, particularly the Federal Water Pollution Control Act Amendments of 1972. The governors are directed to identify areas suffering water-quality control problems and to designate “a single representative organization, including elected officials from local government or their designees, capable of developing effective areawide waste treatment management plans” for each area. EPA issued regulations on September 14, 1973, giving governors until March 14, 1974, to designate or non-designate such areas and agencies.

The 1972 law was amended by subsequent acts, including the Clean Water Act of 1977, which extended the coverage of the Water Pollution Control Act and stipulated that “it is the

policy of Congress that the states manage the construction grant program under this Act and implement the permit programs under sections 402 and 404 of this Act. In 1983, California returned its primacy for the construction grants program to EPA “because state officials believed the EPA required more of primacy states than it did of its own regional officials who served as implementors in states that did not accept primacy.”

The Air Quality Act of 1967 completely preempted the right to establish motor vehicle exhaust-emission standards for 1968 and subsequent years for all states except California, which had tougher preexisting standards. The act also partially preempted other air pollution abatement activities of state and local governments by following the general procedure embodied in the Water Quality Act of 1965. States were encouraged to assume primary enforcement responsibility, but federal action was authorized in the event of state inaction or inadequate action was combat air pollution.

The Clean Air Amendments of 1970 represented a dramatic break with the earlier approach of relying on the states to provide the necessary leadership while taking into consideration the economic and technical feasibility of abatement controls. Direct federal action to protect public health was made national policy, and dates were specified for state adoption of air quality standards and abatement plans. The amendments stipulated that 1975 model automobiles must achieve a 90 percent reduction of the 1970 standards for emissions of carbon monoxide, hydrocarbons, and nitrogen oxides.

Idaho in 1981 “returned its air delegations to the EPA but reaccepted them in 1983 when EPA assured stringent enforcement within Idaho by contracting out supervision to a private firm. This incident illustrates that states will rescind their acceptance of primacy if it suits their political interests.”

The Safe Drinking Water Act of 1974 is another partial preemption statute. It stipulates that “a state has primary enforcement responsibility for public water systems” provided the EPA Administrator determines that the state “has adopted drinking water regulations which . . . are no less stringent” than national standards. Should a state fail to adopt or enforce such standards, the agency applies national standards within that state. The act’s 1986 amendments expanded coverage of contaminants and extended federal standards to underground sources of drinking water (this authority previously was scattered in various federal laws and regulations).

The Surface Mining Control and Reclamation Act of 1977 also is a standard partial preemption statute. Each state with coal-mined land eligible for reclamation may submit to the Secretary of the Interior a state reclamation plan and annual projects to be carried out. No federal funds are provided to a state for a reclamation program unless the state regulatory program has been approved.

Combined Partial Preemption and Dual Sovereignty. The Occupational Safety and Health Act of 1970 combines partial federal preemption with traditional dual regulatory authority. The law specifically stipulates that “nothing in this Act shall prevent any state agency or court from asserting jurisdiction under state law over any occupational safety or health issue with respect to which no standard is in effect under section 6.”

The 1970 act also provides that a state agency may submit a plan to the Secretary of Labor to assume responsibility for the regulatory function, on the condition that state and local government employees be extended protection equivalent to that afforded private employees. If the plan is approved by the Secretary, the Occupational Safety and Health Administration (OSHA) will pay up to half of the operating costs of the program.

As of 1992, 21 states, Puerto Rico, and the Virgin Islands operate programs covering public and private sector employees. Connecticut and New York cover only public employees. An additional eight states had federal plan approval but withdrew from participation.

In 1986, EPA made final a proposed rule to protect state and local government employees from the potential hazards of asbestos-abatement work under authority of the Toxic Substances Control Act of l976. OSHA normally is responsible for federal regulations protecting workers, but the agency’s authority does not extend to state and local government employees. However, as noted above, 21 states have established employee protection standards as strict or stricter than OSHA’s rules and regulations. OSHA also has determined that worker protection regulations in Idaho, Kansas, Oklahoma, and Wisconsin are comparable to or more stringent than federal standards. EPA regulation applies to the remaining states.

There are three principal differences between the OSHA standard and the EPA regulations:

EPA includes a provision not in the OSHA rule that generally requires persons to report to EPA at least ten days prior to beginning an asbestos-abatement project using public employees.

EPA uses a different definition of asbestos, consistent with other EPA regulations. Specifically, EPA does not include non-asbestiform tremolite fibers while OSHA does.

EPA does not include the OSHA preference for rotating employees in and out of the work place to meet exposure limits rather than using respirators.

State Transfer of Regulatory Responsibility. Another type of partial federal preemption is illustrated by the Wholesome Meat Act of 1967, which grants the Secretary of Agriculture the authority to inspect meat and to transfer that responsibility to a state that has enacted a law requiring meat inspection and reinspection consistent with federal standards. This act also allows the states to transfer responsibility for meat inspection within intrastate commerce to the U.S. Department of Agriculture. To date, 18 states have initiated such a transfer. The Poultry Products Inspection Act of 1968 contains similar provisions, and 26 states have shifted inspection responsibility to the U.S. Department of Agriculture.

Total Federal Preemption

An examination of total preemption statutes enacted by the Congress since 1933 found

ten distinctive types of complete assumption of regulatory authority:

(1) No need for state and/or local assistance,(2) No state economic regulation allowed,(3) State and local assistance needed,(4) State activities exception,(5) Limited regulatory turnbacks,(6) Federal mandating of state law enactment,(7) Federal promotion of interstate compact formation,(8) Gubernatorial petition for preemption removal,(9) State veto of a federal administrative decision, and(10) Contingent total preemption.

Each of these types of preemption will be discussed briefly.

No Need for State and/or Local Assistance. The first type involves statutes that can be implemented solely by the federal government, with no state or local government role. For example:

In 1898, the Congress decided to nullify the bankruptcy laws of the states and made the U.S. District Court and the Superior Court of the District of Columbia responsible for handling bankruptcy cases. By assigning total responsibility for this function to United States Courts, the Congress avoided the need to rely on states and/or their political subdivisions for assistance in carrying out the function.

In 1967, responding to pressure from domestic motor vehicle manufacturers, who feared they might have to develop different specialized emission-control systems for each state, the Congress completely preempted the right to establish the standards for 1968 and subsequent years, except for California, which had tougher preexisting standards. (State emission testing programs, however, are an essential part of many state implementation plans for the attainment of air quality goals. The Clean Air Act Amendments of 1990 allow states to adopt the California standards.)

No State Economic Regulation Allowed. In enacting laws implementing deregulation of the airline and bus industries, the Congress took action to ensure that there would be no state economic regulation of those companies. The Airline Deregulation Act of 1978 added the following section to the Federal Aviation Act of 1958:

Sec. 105. (1) Except as provided in paragraph (2) of this subsection, no state or political subdivision thereof and no interstate agency or other political agency of two or more states shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier having authority under title IV of this Act to provide interstate air transportation.

Except with respect to air transportation (other than charter air transportation) provided pursuant to a certificate issued by the board under section 401 of this Act, the provisions of paragraph (1) of this subsection shall not apply to any transportation by air of persons, property, or mail conducted wholly within the state of Alaska.

The Bus Regulatory Reform Act of 1982 deregulated that industry and stipulated that there could be no state economic regulation of bus companies.

So-called fair trade laws offer another example. These laws, which were enacted in a number of states during the Great Depression, typically provided that an agreement signed by a manufacturer with one retailer to maintain a fixed price for an article became binding on all retailers in the state. When state authority to enact such laws was questioned in view of the commerce clause, the Congress enacted the Robinson-Patman Act in 1936, validating such laws. The authorization for state fair trade laws was repealed as part of the economic deregulation movement of the 1970s.

State and Local Assistance Needed. The Atomic Energy Act of l946, as amended, assigned complete responsibility for the regulation of nuclear power plants to the Nuclear Regulatory Commission (formerly the Atomic Energy Commission). However, the lack of adequate resources makes the commission dependent on state and local governments for emergency personnel and equipment to protect public health and safety in the event of a radioactive discharge at a nuclear generating station. A major controversy swirled around attempts to repeal a commission regulation requiring emergency planning around new civilian nuclear power plants, including establishment of ten-mile evacuation zones, before the plants are allowed to operate at full power. The state of Massachusetts and several towns in Massachusetts and New Hampshire refused to participate in federally sponsored evacuation exercises near the Seabrook nuclear power plant, and New York State and Suffolk County refused to participate in similar exercises near the Shoreham nuclear power plant.

A second example involves the ban imposed by the Congress in the Safe Drinking Water Act Amendments of 1986 on the use of lead pipes, solder, and flux in any public water system. The amendments direct states to enforce the prohibition “through state or local plumbing codes, or such other means of enforcement as the state may determine to be appropriate.” Failure of a state to enforce the lead ban may result in the loss of 5 percent of federal grants under the act.

State Activities Exception. In enacting the National Traffic and Motor Vehicle Safety Act of l966, the Congress totally preempted responsibility for establishing safety standards. However, the act authorizes a state or local government to establish “a safety requirement applicable to motor vehicles or motor vehicle equipment procured for its own use if such requirement imposes a higher standard of performance than that required to comply with the otherwise applicable federal standard.”

Limited Regulatory Turnbacks. Several total preemption statutes authorize a federal official or agency to turn back limited regulatory responsibility to states. The United States

Grain Standard Act of 1968 is totally preemptory in that it stipulates that states and their political subdivisions may not “require the inspection or description in accordance with any standards of kind, class, quality, condition, or other characteristic of grain as a condition of shipment or sale of such grain in interstate or foreign commerce, or require any license for, or impose any other restrictions on, the performance of any official inspection function under this Act by official inspection personnel.”

The act also authorizes the administrator of the Federal Grain Inspection Service to delegate to state agencies authority to perform official inspection and weighing. Currently, eight states are authorized to perform these functions at export locations, and 13 states do so at interior locations. Given that the states operate their programs on a fee-for-service basis, they incur no costs that must be reimbursed by the Federal Grain Inspection Service.

Similarly, the Hazardous and Solid Waste Amendments of 1984 allow the states to assume responsibility for EPA’s hazardous waste programs. The states have been partially preempted for hazardous waste programs since 1976.

The Federal Railroad Safety Act of 1970 provides for state assumption of railroad inspections.

The Agreement State Program of the Nuclear Regulatory Commission is the largest and most successful program of voluntary state administration of federal laws and regulations. The Atomic Energy Act of 1946, which totally preempts regulation of ionizing radiation, was amended in 1959 to authorize the commission to enter into agreements under which states would assume certain regulatory responsibilities. Twenty-nine states have signed such agreements.

In contrast to partial federal preemption statutes, which assign regulatory responsibility to the states provided they adopt and enforce standards at least as high as federal standards, the Agreement State Program simply requires that a state radiation control program be compatible with, and not necessarily identical to, the commission’s regulatory program.

New Mexico returned to the commission responsibility for the uranium mill licensing program in 1986, primarily because of the cost of the program, which was diverting Radiation Protection Bureau personnel from other licensing responsibilities.

Federal Mandating of State Law Enactment. The Equal Employment Opportunity Act of 1972 and similar acts mandate that states comply with federal laws by enacting state laws under the threat of civil or criminal penalties. Since the Garcia v. San Antonio Metropolitan Transit Authority decision of 1985, state and local governments must comply with the provisions of the Fair Labor Standards Act of 1938 as amended or be subject to both civil and criminal penalties. A similar mandate is contained in the Federal Mine Safety and Health Act of 1977.

The Tax Equity and Fiscal Responsibility Act of 1982 mandated that state and local governments making income tax refunds report that information to the Internal Revenue Service necessitating amendment of state and local income tax laws to authorize the reporting.

Federal Promotion of Interstate Compact Formation. The Low-Level Radioactive

Waste Policy Act of 1980 declares that “each state is responsible for providing for the availability of capacity either within or outside the state for the disposal of low-level radioactive waste generated within its borders,” with the exceptions of such wastes generated by national defense or federal research activities. The act encourages the formation of interstate compacts for this purpose, to take effect after “the Congress has by law consented to the compact. Each such compact shall provide that every five years after the compact has taken effect Congress may by law withdraw its consent.” Effective January 1986, a compact may provide that only wastes generated within a region may be disposed of within the region.

The Low-Level Radioactive Waste Policy Amendments Act of 1985 granted the consent of the Congress to seven interstate compacts. Several states have initiated action to locate a disposal site within their borders because Nevada, South Carolina, and Washington, which currently accept low-level wastes from other states, may refuse to do so effective January 1, 1993.

Gubernatorial Petition for Preemption Removal. The Department of Transportation and Related Agencies Appropriation Act of 1986 stipulates that tolls on any bridge connecting Brooklyn and Staten Island, New York, are to be collected only as vehicles leave the bridge in Staten Island. However, the Secretary of Transportation is authorized to remove the limitation on the petition of the governor.

State Veto of a Federal Administrative Decision. The Nuclear Waste Policy Act of 1982 authorizes the Secretary of Energy to select a site for the construction of a high-level radioactive waste facility, but the site may be vetoed by the governor or the state legislatures. The Congress may override the state veto.

Contingent Total Preemption. The Voting Rights Act of 1965, as amended, contains national provisions that are not applied to a state or a local government unless two conditions exist. The law automatically applies if the U.S. Attorney General determines that, as of November 1, 1964, a test or device was employed to abridge the rights of citizens to vote because of race or color and the director of the U.S. Bureau of the Census determines that less than 50 percent of citizens of voting age were registered to vote on November 1, 1964, or less than 50 percent of those of voting age voted in the 1964 presidential election.

If a determination is made that the act applies to a state or political subdivision, the covered jurisdiction becomes subject to the preclearance requirement, which prohibits any change, no matter how minor, in the election system unless the Attorney General, within 60 days of submission of a proposed change, fails to register an objection or the District Court for the District of Columbia, in response to an action initiated by the jurisdiction, issues a declaratory judgment that the change would not abridge the right to vote of citizens protected by the act.

Notes and Questions

1. Viewed through the prism of Supreme Court decisions, the doctrine of preemption encompasses both express and implied preemption. When Congress expressly preempts, the Supremacy Clause assures that federal law trumps state law if the Congress is

acting within constitutional limits. See Jones v. Roth Packing Co., 430 U.S. 519, 525 (1977).

Absent express preemption, Congress’ intent to supercede state law altogether may be found from a “scheme of Federal regulation so pervasive as to make reasonable the inference that Congress left no room to supplement it,” “because the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,” or because “the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose.”

Pacific Gas and Electric v. State Energy Resources Conservation Comm’n, 461 U.S. 190 (1983) (quoting Fidelity Federal Savings & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982), and Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

Thus, although impressive, the A.C.I.R.’s compilation understates the magnitude of the preemption problem because it lists only statutes containing express preemption language. Think of the difficulties facing a local government’s legal advisor who is obligated to canvass all germane federal statutes, both express and implied, in advising a locality whether it can undertake local regulation of a particular subject.

This is reinforced by the standard view of preemption case law: “the lack of any pattern to the preemption cases can be explained in that each case seeks to ascertain congressional intent in a unique context.” LEONARD W. LEVY ET AL., 3 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 1438 (1986). The author goes on to observe that “a final attraction of the preemption rationale . . . may be that each decision can be truly ad hoc, resting on a fictional finding of congressional intent to preempt that governs only the particular statutory scheme before the Court.” Id. at 1439.

Can such sentiments be squared with any defensible notion either a government of laws or the proper function of a judiciary in a democratic society?

Apart from questions of principle, what weight should be placed on the transaction costs associated with obtaining an authoritative federal judicial determination that a state or local government is free to regulate in a policy area which potentially overlaps with a federal law?

2. Would you favor a legislative enactment which created a broadly phrased presumption against implied preemption?

3. The Supreme Court has spoken to the preemption problem in several important cases. In Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981), the Court rejected an invitation to read the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6000 et seq., as imposing substantive standards for care and treatment of the retarded on recipients of federal funds. The court viewed legislation enacted pursuant to the spending power as “in the nature of a contract; in return for federal funds, the States agree to comply with federally imposed conditions.” 451 U.S. at 4. The Court further observed that:

The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the state voluntarily and knowingly accepts the terms of the “contract” . . . . There can, of course, be no knowing acceptance if a state is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition in the grant of federal moneys, it must do so unambiguously . . . .

451 U.S. at 17.

In Hillsborough County Florida v. Automated Medical Laboratories Inc., 471 U.S. 707 (1984), the Court held that there is a presumption against implied preemption of state and local regulatory authority over matters of health and safety. The Court, accordingly, sustained a local ordinance which imposed requirements on a blood bank more stringent than federal standards and barred donations from individuals permitted to give blood under federal regulations.

Finally, in Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), and Gregory v. Ashcroft, 501 U.S. 452 (1991), the Court adopted a generalized “clear statement” rule to the effect that “Congress should make its intention ‘clear and manifest’ if it intends to pre-empt the historic powers of the States . . . .” 491 U.S. at 65. Accordingly, the Court refused to read the Age Discrimination in Employment Act of 1967 to cover state judges subject to the Missouri Constitution’s mandatory retirement provision since Congress did not make it clear that judges are included.

In light of these decisions, is a preemption statute necessary?4. The great blooming, buzzing confusion of recent federal preemption cases is

collected in C. DALLAS SANDS, MICHAEL E. LIBONATI, AND JOHN MARTINEZ, LOCAL GOVERNMENT LAW § 7.03.