Although the Federalism Act of 1999 (H.R. 2245) intends to clarify issues around federal preemption of state and local laws, it could very well have the opposite effect and throw federal regulations into a sea of judicial muddle. Not only does the bill contain no limits on judicial review, its requirements are often extremely broad and vague, making prime targets for future court challenges. In the end, this could have the detrimental effect of undermining federal assurances for public health, safety, and the environment. Of specific concern: 1. It contains burdensome analytical requirements. For each proposed rule, interim final rule, and final rule, agencies would be required to conduct "Federalism Impact Assessments" (FIAs) to identify, among a host of other things, any provision of the rule that is a preemption of state or local authority, and estimate costs to state or local governments as a result of the rule. The broad requirements to analyze preemption, which are judicially reviewable, would be especially difficult to tackle since agencies cannot possibly be expected to know the details of every state and local law that might be preempted. Notably, the bill's requirements would apply to all rules (not just major rules as is the case under the Unfunded Mandates Reform Act of 1995), even where impacts to state or local governments are minimal or nonexistent. This significantly expands the number of FIAs to be prepared each year � from roughly 50 major rules to more than 4,000 total rules. Not only is this unnecessary, it would be excessively burdensome on agencies and demand that resources be shifted away from core responsibilities. 2. It contains unrealistic and unfair requirements for consultation with state and local governments. Before issuing a notice of proposed rulemaking to the public, agencies would have to "notify and consult with public officials who may be potentially by affected by the rule..." This requirement, which is subject to judicial review, is incredibly broad. An agency would be highly vulnerable to a court challenge if it does not proactively consult with every state or local official on every rule, which is truly an impossible task. Moreover, that the consultation process would begin without any notice to the public is also troubling. Such behind-closed-doors dealing is not the way to inspire confidence in government, nor is it fair to other interested parties that have a stake in the outcome of a particular rulemaking (notably, the bill specifically singles out the big seven state and local government associations for special attention in the consultation process). 3. It would spur a mountain of litigation. Unlike the Unfunded Mandates Reform Act (UMRA), H.R. 2245 contains no limits on judicial review, which is especially troubling since so many of the bill's requirements are very broad and very vague. This would expose agencies to a flood of litigation over a host of issues. In addition to the consultation provision discussed above, courts would have to fill in the blanks on broad requirements for agency analyses of the preemptive effects of rules, constitutional and statutory authority for such preemption, other "impacts" on State or local governments, and potential costs to state and local government, and then determine a remedy, if any, including invalidation of the rule (by contrast, UMRA allows courts to order an agency to analyze effects on state and local governments if it has failed to do so, but does not allow invalidation). Moreover, courts would have to determine who has the right to sue under the provisions of H.R. 2245. For example, could regulated entities sue to preserve state standards that are less protective of health, safety, or the environment? If that's the case, H.R. 2245 would be a true judicial nightmare. Back when President Reagan issued his executive order on federalism, automobile manufacturers immediately seized on it to argue against vapor controls in cars because, according to a 1987 letter sent to EPA, "it undermines the efforts of State air pollution agencies to pursue an alternative strategy." Is there any doubt such tactics would be employed again � this time through the courts? 4. It would muddle court doctrine on preemption. Where Congress or an agency intends to preempt state or local law, the bill requires that there be a specific statement of preemption within the legislation or rule. Where no such statement has been included, state and local laws would have presumed authority. While it is always desirable for Congress to be clear in expressing its intent, this formulation ignores the fact that courts already have well-developed principles for dealing with preemption cases, which give a great deal of deference to state and local governments; the proponents of the legislation have not provided any examples of court decisions that interpreted preemption beyond the intent of Congress. Thus, the need to overhaul the judicial criteria for preemption cases has not been made. Moreover, the proponents of H.R. 2245 should not be overly optimistic about the effects of requiring express statements of preemption. In a recent letter to Rep. David McIntosh (R-IN), the sponsor of the legislation, the Justice Dept. points out that express preemption provisions would be tricky, "particularly in far-reaching, long-lived Federal statutes," and "may be prone to overinclusiveness, displacing State law where such displacement is not truly necessary..." And indeed, the Justice Dept. also notes that some of the harshest criticism of federal preemption has been aimed at express statutory provisions, such as those contained in the Employee Retirement Income Security Act (ERISA). 5. It would undermine important federal assurances for public health, safety, and the environment. Most significant of all, the bill states that any ambiguity in the Act or in any other federal statute or rule "shall be construed in favor of preserving the authority of State and local governments." This sweeping provision could severely undermine federal assurances, creating the risk that unintentional ambiguities in federal statutes and regulations � dealing with issues from environmental protection to worker health to food safety � would be exploited in the courts to frustrate the will of Congress and federal agencies.