Chlorine Institute, Inc. v. California Highway Patrol

specially concurring:

The result of this case is an unfortunate defeat of the legitimate interests of the people of California who wish to protect themselves from the risks of hazardous materials. Nevertheless, with reluctance and based solely on the binding precedent of our court’s decision in Southern Pacific Transportation Co. v. Public Service Commission of Nevada, 909 F.2d 352 (9th Cir.1990), I must concur in the court’s opinion.

Although I believe that Southern Pacific dictates that the court affirm the district court’s ruling that California’s regulation is preempted by the Hazardous Materials Transportation Uniform Safety Amendments, I regret the result and the implications it carries for federalism. Our Constitution is based on a healthy respect for the sovereignity of the state. As Chief Justice John Marshall observed: “The genius and character of the [federal] government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere,…

Opinion by Judge HUG; concurrence by Judge O’SCANNLAIN.

BACKGROUND

In 1975, Congress enacted the Hazardous Materials Transportation Act, 49 U.S.C. app. § 1801, et seq. (“HMTA”) “to replace a patchwork of state and federal laws and regulations” concerning the transportation of hazardous materials, “with a scheme of uniform, national regulations.” Southern Pac. Transp. v. Public Serv. Comm’n of Nev., 909 F.2d 352 , 353 (9th Cir.1990). Pursuant to authority delegated by the HMTA, the United States Department of Transportation (“DOT”) has promulgated the Hazardous Materials Regulations (“HMR”), which classify hazardous materials and prescribe certain requirements for shippers and carriers of such materials. 49 C.F.R. §§ 171-179 .

In 1990, Congress substantially amended the HMTA by enacting the Hazardous Materials Transportation Uniform Safety Act, 49 U.S.C.App. §§ 1801-1819 (“HMTUSA”), which, among other things, rewrote the standards for determining when federal law preempts state regulations pertaining to hazardous materials transportation. Id. at § 1811(a). The preemption provision relevant to this appeal is found at section 1811(a)(2), which provides for the preemption of any…