Legislation that attempts to address federal preemption of state and local laws has started moving in both the House and Senate, and if enacted, could throw federal regulations into a sea of judicial muddle -- a concern raised by the Clinton Administration on Wednesday, 7/14, during a hearing in the Senate Governmental Affairs Committee. Not only does the legislation 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. During a hearing last week in the House Subcommittee on Regulatory Affairs, Rep. Jim Moran (D-VA) -- who is co-sponsoring the bill with Rep. David McIntosh (R-IN) -- at least acknowledged that he thought there might be a need to place limits on the judicial reviewability of the bill's requirements. It was unclear, however, whether McIntosh shared those sentiments. Nor was it clear from the Senate hearing whether the chief proponents there -- Sens. Fred Thompson (R-TN) and Carl Levin (D-MI) -- would be willing to put limits on judicial review and the potential for increased litigation. CSS has a number of concerns with legislation in both the House and Senate as currently drafted. Specifically: 1. It contains burdensome analytical requirements. For each proposed rule, interim final rule, and final rule, agencies would be required to conduct a "federalism assessment." The nature of this assessment varies in the House and Senate versions, but both raise similar concerns. In the Senate version, for instance, agencies would be required to identify, among a host of other things, "the extent to which the rule preempts State or local government law, ordinance or regulation..." This broad requirement to analyze "the extent" of preemption, which is judicially reviewable, could be read to imply the impossible -- that agencies be expected to pick through the details of every state and local law that might be preempted. Such a process would be unimaginably time-consuming. Moreover, the requirements of both the House and Senate versions 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. This significantly expands the number of rules that could be subject to a federalism assessment -- from approximately 50 major rules each year 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, consult with, and provide an opportunity for meaningful participation by public officials of governments that 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 -- and even then, under the Senate version, courts would have to decide what qualifies as "an opportunity for meaningful participation" (the House version does not contain this language, but its consultation provision is the same in all other respects). Moreover, that the consultation process would begin without any notice to the public is also troubling. Such behind-the-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. 3. It would spur a mountain of litigation. Unlike the Unfunded Mandates Reform Act (UMRA), the House and Senate bills contain 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, under the Senate version, courts would have to fill in the blanks on broad requirements for agency analyses of the extent of preemption of state or local law, the extent to which state or local authority would be maintained, and the "significant impacts" of the rule on state or local governments, 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 S. 1214. 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, S. 1214 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 undermine important federal assurances for public health, safety, and the environment. Perhaps most significant of all, the House 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." (The Senate version contains nearly identical language, but would apply only to statutes, not regulations.) This sweeping provision could severely undermine federal assurances, creating the risk that unintentional ambiguities in federal statutes -- 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.