States Rights Advocates Attack NHTSA Roof Crush Preemption Proposal

A provision in National Highway Traffic Safety Administration's proposed roof crush standard that would preempt state tort law would transfer the societal costs of caring for rollover crash victims to the states, discourage manufacturers from improving vehicles' crashworthiness and usurp Congressional authority, a diverse group of influential commenters has argued.

For the first time in 32 years, the NHTSA is proposing to strengthen vehicle roofs and extend the standard to cover vehicles with a Gross Vehicle Weight Rating of 10,000 pounds, as part of an alleged "comprehensive plan for reducing the risk of death and serious injury from rollover crashes." The proposed regulation would increase the force that vehicles are required to withstand from 1.5 to 2.5 times their unloaded vehicle weight and replace the 22,240 Newton maximum force limit for passenger cars. It would also change the certifying test from the current plate movement limit of 5 inches with a new direct limit on headroom reduction. (See The Safety Record, V2, I4).

Since the agency opened the docket in August, many have criticized the proposal for doing little to actually improve safety. Even the agency notes that that nearly three-quarters of the vehicles on the market already meet the proposed new standard and the standard would only prevent 13-44 fatalities, and about 500-800 non-fatal injuries, a fraction of annual carnage from rollover accidents each year.

But the preemption clause has provoked almost as much outcry for its negative impact on state budgets, for its infringement on states and consumers' rights and for its rejection of Congress's intent that these federal regulations should represent minimum safety standards.

Consumer groups, members of Congress, Governor Theodore Kulongoski of Oregon, the National Conference of State Legislatures (NCSL) and the National Association of Attorneys General (NAAG) all weighed in against the preemption clause tucked into the Civil Justice Reform section of the proposal.

The most direct challenge to NHTSA's right to tie preemption to a roof strength standard came from Congress. In a pointed one-page letter, U.S. Senator Arlen Specter (R), chairman of the Senate Judiciary Committee and Senator Patrick Leahy (D) of Vermont noted that the Transportation Equity Act did not give NHTSA any explicit authority to preempt state law in this regulation, which is required under Executive Order 13132.

"We are interested to learn how NHTSA concluded that preemption of State law was the intent of Congress when it passed the Transportation Equity Act," the senators wrote.

The National Association of Attorneys General picked up the legal argument against the preemption provision contending that NHTSA had relied on an overly broad interpretation of Geier v. American Honda Motor Company, 529 U.S. 861 (2000). In that case, the Court ruled that a common law tort claim alleging that all manufacturers should be required to immediately install airbags in all vehicles conflicted with a NHTSA regulation mandating that airbags be among a choice of passive restraint systems phased in over several years. But the circumstances between Geier and the roof crush regulation differ substantially, the attorneys general argued. Applying the conclusions of that case to every motor safety standard would directly impinge on state court jurisdiction. In a letter signed by 27 attorneys general, led by Tom Miller of Iowa (D) and Wayne Stenehjem of North Dakota( R) noted:

The state common law court system serves as a vital check on government-imposed safety standards. Vehicles and equipment can contain hazardous features and still meet federal minimum safety standards. NHTSA's proposal is likely to erode manufacturer incentives to assure that vehicles are as safe as possible for their intended use.

The National Conference of State Legislatures also argued that Geier was meant to be narrowly construed and held that the savings clause in 15 U.S.C. §1397 (k) preserved state lawsuits based in common law.

"There was a clear expression by the U.S. Supreme Court in the Geier case that unless there is a direct conflict with the purpose of a particular FMVSS standard, implied preemption would not bar common law tort actions," the organization maintained in its letter to NHTSA.

A Glaring Error

Still other advocates for the states protested that preemption would force states - rather than the manufacturers of vehicles with weak roofs - to bear the cost of deaths and injuries caused each year from rollovers. Several contributors to the docket pointed out that NHTSA had violated the principles of federalism outlined in Executive Order 13132 by failing to consult state groups about the impact.

Contrary to NHTSA's claim that there were "insufficient federal implication to warrant consultation with state and local officials," respected economist Ted Miller, of the Pacific Institute for Research and Evaluation, concluded that the proposed rule would have a significant economic impact on insurers, state governments and the court system and called the agency's failure to consider preemption's cost "a glaring error."

Rollover victims and their families who cannot recover their losses will be forced into bankruptcy, with government programs picking up the tab for medical expenses and income support. Using government statistics enumerating the percentage of distribution of rollover injuries and fatalities, an arbitrary 10-percentage-point reduction in the portion of state government expenditures recovered and the payer distribution in a NHTSA report on the economic impact of motor vehicle crashes, Miller estimated that states' costs would rise by $39 million dollars. But given the decline in private health insurance and the age of the data fueling some of the underlying assumptions, Miller predicted that the burden borne by states would be much heavier.

Miller also argued that preemption would take an economic toll on auto, health and life insurers and on the legal industry by raising the costs the costs of litigation. Finally Miller urged NHTSA to consider the financial implications of discouraging manufacturers to seek out innovative was to strengthen vehicle roofs without increasing their propensity to rollover. Losing the safety benefits prompted by preemption impacts the marketplace in ways the agency must explore, he said.

One notable dissenter from the protests against preemption was the Washington Legal Foundation, a conservative, non-profit group. The WLF supported the preemption provision, arguing that "it is in the public interest to have consistent and uniform national standards with respect to manufactured goods that are sold or a nationwide basis rather than subject large segments of the United State economy to a patchwork quilt of confusing, conflicting and costly regulations and the jury verdicts of 50 states and the District of Columbia." Unlike other legal analysts, the WLF claims ample support for NHTSA's authority to preempt state tort claims, despite the savings clause, in Geier.

Finally, the legal foundation said that it found NHTSA's case for preemption "compelling," based on NHTSA's statements that requiring stronger roofs would negatively affect vehicle dynamics and make rollovers more likely-even though the agency's own data provided scant support for its assertion. The WLF threw its support behind the agency's reasoning that broader state statues would frustrate the agency's goals of reducing rollovers, without examining the factual bases of that conclusion. Many auto safety experts have challenged those statements. Automakers whose vehicle roofs currently exceed the proposed upgrade, produce cars that offer greater occupant protection and less propensity to rollover.

The effect of the comments and political fallout are not likely to surface for some time as the agency evaluates comments. NHTSA observers expect that it may take a year before the agency formerly responds.

Copyright © Safety Research & Strategies January 2006

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