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Federal Preemption: Why is the federal preemption doctrine more important to the Washington power brokers than NY's clean air?

By Steve Lombardi

Using the federal preemption doctrine the federal government has stopped New York City from taking action towards improving air quality in the City. Whether you know it or not we are all chocking on the pollution caused by how the federal preemption doctrine is being applied to state law and how it fails to improve the way we live. Federal preemption laws are being applied in a way that is making life more dangerous not less.

The Mayor of New York City attempted what Sarah Palin would probably classify as domestic terrorism. If she could label Mayor Michael Bloomberg he would be a domestic terrorist. You might think I’m trying to be cute, but I’m not the least bit in a humorous mood. What did he do that was so domestically evil? Well, he attempted to use City legislative powers to improve the quality of air in the city. Specifically he tried to reduce air pollution and greenhouse-gas emissions by requiring owners and operators of taxis to switch to more fuel-efficient hybrids. What happened next is that

“Mayor Bloomberg’s efforts to ‘green’ the city’s fleet of over 13,000 yellow cabs is an integral part of the city’s overall sustainability efforts. Replacing the exceptionally dirty Crown Victoria with clean, economical low-emission vehicles is an important milestone on the city’s road to dramatic greenhouse gas reductions. Fighting climate change will require sacrifices from all New Yorkers. Yellow cab fleet owners should be no exception. We are dismayed that this industry has failed to recognize, as countless other businesses have, that sustainability is in its own best interest.”

The City of New York has over 13,000 taxi cabs most running 24/7/365. Crown Victoria’s seem to be a favorite ride. A taxi cab company decides to sue under the Clean Air Act arguing federal preemption doesn’t allow the City of New York to take such responsibility. The Judge ruled the cab drivers are right and the City is wrong under the doctrine of federal preemption. You can’t do more than the federal government allows a City to do and certainly you can’t contradict the federal standards. In practice this is so foolish that it’s silly. Would New Jersey or New Hampshire sue New York over clean air coming across the state line?

You might be a little curious about why the federal government wouldn’t or doesn’t want cities and states passing legislation that improves the air quality. You should be, you should be more than curious; you should be angry. Angry enough to throw all the incumbents out of office and to keep throwing them out until what is going on in Washington changes. And changes for the better.

“Judge Crotty’s extraordinarily strict reading of the Clean Air Act is also damaging to all local governments that are attempting to address the climate crisis. After eight years of tragic inaction in Washington, the burden falls on state and local governments to take action on this vital issue. Today’s ruling will immeasurable complicate these vital efforts.”

There is so much wrong with this ruling and how this legal principle is being applied that I’m not sure where to begin or how to keep it brief. But I will keep this explanation as brief as most campaign promises are kept.

First it is a contradiction to what Washington has been telling us about returning power to the states. Second, Washington tells America to take responsibility, not to rely upon it for solving every problem; but in this instance New York tried to do just that and were denied the opportunity to “take responsibility.” It’s really not all that uncommon that Washington stops the states and cities from taking action independent of what Washington allows. Washington does it with prescription drugs as well as with clean air standards. It’s not necessary in either instance, but they do it anyway. You might wonder why Congress and the White House would tell us one thing on the campaign trail and act in quite another way.

The answer is really pretty simple. It is about money; lobbyist dollars, campaign contributions and PAC money. If Washington politicians allow the power to regulate air pollution to escape from their grip, then so do those precious campaign dollars that grease their palms. With the power to decide an issue go door knocks, appointments, cocktail hours, glad-handing and palm greasing along the foot path of influencing legislation. In some ways the doctrine of federal preemption is about corruption, corruption of their minds, hearts and souls that slowly creeps into their being right around the time the first re-election campaign nears. With the power to decide goes favors; political favors that like a mighty magnet attract money. The long held doctrine our forefathers put in place to protect national commerce and defense is being bastardized for a few billion dollars in campaign contributions. It’s not longer about what’s good for America; it’s about what is good for their next campaign. It’s not about you and I; it’s about them. You wonder why we don’t make anything in this country any more and why our federal government gives tax breaks to those who export American jobs. Well don’t wonder just do as Judge Fitzgerald would say; follow the money trail.

With the power to decide an issue go door knocks, appointments, cocktail hours, glad-handing and palm greasing along the foot path of influencing legislation.

It's the money that gets them reelected.

These figures and charts are from OpenSecrets.org.

The $500 biilion Savings and Loan scandal in November of 1990. The Keating Five.

Senator Stevens has the Northern Lights PAC - Oil executives plead guilty to bribery concerning the relationship with U.S. Senator Stevens.

Northern Lights PAC

Affiliate: Ted Stevens (R-Alaska)

2008 PAC Summary Data

2008 election so far* Select a Cycle: 2008 2006 2004 2002 2000 1998	Total Receipts	$392,603
	Total Spent (view expenditures)	$367,847
	Begin Cash on Hand	$2,264
	End Cash on Hand	$27,017
	Debts	$0
	Date of last report	October 15, 2008
	Contributions from this PAC to federal candidates (list recipients) (0% to Democrats, 100% to Republicans)	$154,500
	Contributions to this PAC from individual donors of $200 or more (list donors)	$105,750

Northern Lights PAC

Affiliate: Ted Stevens (R-Alaska)

2006 PAC Summary Data

2006 election Select a Cycle: 2008 2006 2004 2002 2000 1998	Total Receipts	$719,946
	Total Spent (view expenditures)	$744,226
	Begin Cash on Hand	$26,546
	End Cash on Hand	$2,264
	Debts	$0
	Date of last report	December 31, 2006
	Contributions from this PAC to federal candidates (list recipients) (0% to Democrats, 100% to Republicans)	$221,000
	Contributions to this PAC from individual donors of $200 or more (list donors)	$238,155

So in 2006 where did all that money go? What was i t used for and whose influence was it buying? 2006 Recipients

Senate
Total to Democrats: $0
Total to Republicans: $211,500

Recipient	Total
Allen, George (R-VA)	$10,000
Burns, Conrad (R-MT)	$10,000
Chafee, Lincoln D (R-RI)	$6,000
Corker, Bob (R-TN)	$10,000
Craig, Larry (R-ID)	$5,000
DeWine, Mike (R-OH)	$10,000
Domenici, Pete V (R-NM)	$2,500
Ensign, John (R-NV)	$10,000
Hatch, Orrin G (R-UT)	$10,000
Hutchison, Kay Bailey (R-TX)	$10,000
Inhofe, James M (R-OK)	$1,000
Kean, Thomas H Jr (R-NJ)	$5,000
Kennedy, Mark (R-MN)	$10,000
Kyl, Jon (R-AZ)	$10,000
Lott, Trent (R-MS)	$10,000
Lugar, Richard G (R-IN)	$10,000
McConnell, Mitch (R-KY)	$2,500
McGavick, Michael (R-WA)	$10,000
Murkowski, Lisa (R-AK)	$2,000
Raese, John R (R-WV)	$5,000
Ricketts, Pete (R-NE)	$5,000
Santorum, Rick (R-PA)	$10,000
Smith, Gordon H (R-OR)	$10,000
Steele, Michael (R-MD)	$10,000
Stevens, Ted (R-AK)	$5,000
Sununu, John E (R-NH)	$2,500
Talent, James M (R-MO)	$10,000
Thomas, Craig (R-WY)	$10,000

House
Total to Democrats: $0
Total to Republicans: $9,500

Recipient	Total
Blunt, Roy (R-MO)	$1,000
Bonilla, Henry (R-TX)	$1,000
Dewine, R Pat (R-OH)	$2,000
Pombo, Richard (R-CA)	$5,000
Young, C W Bill (R-FL)	$500

The pharmaceutical industry is reported to have paid just last year in an attempt to preserve Rx-federal preemption, over three hundred million dollars in campaign contributions. Congress adores this kind of regulator framework that brings industry lobbyists begging for influence in the decision-making process.

Lobbying

Pharmacy

Lobbying

Pharmaceuticals/Health Products

Industry Profile, 2008

Total For Pharmaceuticals/Health Products: $135,166,346
Campaign Contributions from this industry

The line is long at your Congressman’s door; there is the auto industry, the transportation industry, the rail industry, the airlines among others whose profits fund the Congress that brought us the financial industry’s regulatory nightmare that lead us to the lending debacle. Silence was bought and paid for with lobbyist dollars. If you wonder why everyone in power with the power to say liar’s loans violate the very fabric of the American culture, look no further than the influence of lobbying dollars greasing the palms of your Congressman and mine. More than likely that is why Congress acted so quickly with a 700 billion dollar bail-out plan. They were all guilty of looking the other way and needed to bury this one before some bank executive opened his mouth and made their re-election difficult.

Pharmaceuticals / Health Products: Money to Congress

All cycles 2008 2006 2004 2002 2000 1998 1996 1994 1992 1990

Summary Top 20 Members All Senators All Members of the House All Senate Candidates All House Candidates

Party Split: Dems: Repubs: Others: $8,564,849 $8,255,239 $16,858 All Candidates: $16,836,946 Incumbents Only: $15,005,165

House	# of Members	Average Contribution	Total Contributions
Democrats	214	$21,816	$4,668,551
Republicans	182	$21,908	$3,987,251
Independents	0	$0	$0
TOTAL	396	$21,858	$8,655,802
The US House of Representatives has 435 members and 5 non-voting delegates.

Senate	# of Members	Average Contribution	Total Contributions
Democrats	46	$72,530	$3,336,374
Republicans	47	$63,642	$2,991,155
Independents	0	$0	$0
TOTAL	93	$68,038	$6,327,529
The US Senate has 100 members.

And in the future don’t forget what lobbyist is not far behind. Can you hear that knock on the door? It’s your Congressman’s door being knocked on by stock brokers and Wall Street lobbyists who seek access to your Social Security funds.

How many lobbyists are registered to influence decision making in the United States and how much do they spend?

In 2008 15,966 lobbyists spent $1.97 Billion.

Total Lobbying Spending

1998 $1.45 Billion 1999 $1.44 Billion 2000 $1.54 Billion 2001 $1.63 Billion 2002 $1.81 Billion 2003 $2.04 Billion 2004 $2.17 Billion 2005 $2.41 Billion 2006 $2.60 Billion 2007 $2.82 Billion 2008 $1.97 Billion

Number of Lobbyists

1998 10,693 1999 13,444 2000 12,760 2001 12,078 2002 12,347 2003 13,171 2004 13,418 2005 14,508 2006 15,249 2007 15,498 2008 15,966

Federal preemption acts to consolidate and to funnel all the decision making power in the Congress. In doing so it limits the decision makers whose influence needs to be lobbied. So when your Congressman has industry showing up at his door with promises of campaign contributions or the doctor’s at the University of Minnesota receive gifts from Big Pharma their loyalties are being shaped. And shaped not to do what is right by the electorate, but for Corporate American. Senator Stevens accepted gifts to fix up and to improve his private cabin. In his instance the government should seize the improved real estate and make him forfeit it to the federal government. The government could consider him to have commingled government property or as operating a criminal enterprise; either way choose a legal doctrine that effectively removes the incentive to take illegal gifts from lobbyists.

To better understand the loyalty issues consider how you would feel about your personal injury lawyer taking gifts from State Farm or Liberty Mutual Insurance Company. Consider how you would feel about the star centerfielder being promised a contract for next season in the middle of the World Series by his team’s opponent. Or what if Judges were allowed to take gifts from the parties? How would that make you feel about the independence of the judiciary? Perhaps the answer for Congressional elections is to somehow make all campaign contribution secret from the Congressman or have those contributions just be in a general fund that equally divides the total amongst all those who seek election.

CONCLUSION -

Say no to how the Congress is using federal preemption. It should be used sparingly and then only for the basic functions of our federal government. Preemption has no business being used as a club in regulating commerce.

So if you care about the quality of the air you breathe, or the drugs you take to cure your every ill or the few dollars you’ve saved for retirement, then contact your Congressmen and say, enough is enough. Say no to more federal preemption that is choking the very life out of America. In the case of Rx federal preemption is being used to stop people whose livers are poisoned from suing and seeking answers from drug companies. We need not choke on polluted air or be sickened from drinking water that the federal government is without the will to clean up. We don’t have to accept being treated as if we were the pharmaceutical industry’s lab rats. We are not powerless. We count. So stand up and be counted. Phone, email or write to your Congressman telling them thumbs down to federal preemption.

Originally posted at InjuryBoard by Steve Lombardi

Full post as published by Des Moines Personal Injury Lawyer on November 03, 2008 (boomark / email).