U.S. agencies shield industry from suits, state regulations

Bush administration gives unprecedented protection to business

February 19, 2006|By MYRON LEVIN AND ALAN C. MILLER | MYRON LEVIN AND ALAN C. MILLER,LOS ANGELES TIMES

Near sunrise on a summer morning in 2001, Patrick Parker of Childress, Texas, swerved to avoid a deer.

His pickup truck rolled over, and the roof of the Ford F-250 crumpled. Parker didn't stand a chance. His neck broke, and, at 37, he was paralyzed from the chest down. He sued, and Ford settled for an undisclosed amount.

"You can imagine what happens when you're belted in and the roof comes down even with the door," Parker said. "Your options are death or quadriplegia."

Parker's case and hundreds like it are behind a beefed-up roof safety standard proposed in August by the National Highway Traffic Safety Administration. But safety regulators also tucked into the rule something vehicle makers have long coveted: protection from future roof-crush lawsuits like the one Parker filed.

The surprise move seeking legal protection for automakers is one in a series of recent steps by federal agencies to shield leading industries from state regulations and civil lawsuits on grounds they conflict with federal authority. Other industry-friendly regulations affect state rules on tailpipe emissions, pollution control of fleet vehicles and consumer protections for bank customers.

Some of these efforts are facing court challenges. But through arcane regulatory actions and legal opinions, the Bush administration is providing industry with an unprecedented degree of protection, limiting an individual's right to sue and a state's right to regulate.

In a letter to the president, Rep. Jan Schakowsky, an Illinois Democrat, said, "It appears that there may have been an administration-wide directive for agencies ... to limit corporate liability through the rule-making process and without the consent of Congress."

Administration officials said the initiatives have not been coordinated centrally.

"Under the Constitution, federal laws take priority over inconsistent state laws," said Scott Milburn, spokesman for the White House Office of Management and Budget. "Decisions about ... whether particular rules should pre-empt state laws are made agency by agency and rule by rule."

By embedding similar protections for businesses in regulatory changes that pre-empt state laws, the administration has advanced President Bush's pledge to rein in what he calls junk lawsuits.

Besides trying to bar lawsuits over vehicle roof failures, the highway safety agency has sought broad legal protection in two other rules in recent months on grounds that lawsuits could undermine its safety goals. One rule related to rear seat belts and the other to visibility requirements for trucks.

No similar exemption clauses have been attached to any other highway safety agency rule changes for 35 years.

Industry executives, lobbyists and lawyers have shuttled through the highway safety agency and other departments over the years, but in the Bush administration, auto industry ties have grown more conspicuous.

Before becoming White House chief of staff, Andrew H. Card Jr. served as a General Motors vice president and as chief executive of the top auto industry trade group. The acting head of the highway safety agency, Jacqueline Glassman, was a senior attorney for DaimlerChrysler Corp. until 2002.

Jeffrey A. Rosen, who became general counsel at the Transportation Department in 2003, was a senior partner at Kirkland & Ellis, a powerhouse law firm that has defended GM in numerous product-liability suits and represents the Alliance of Automobile Manufacturers.

Rosen denied using his position to benefit automakers: "We have issued a number of major rules in the two years that I have been here. Some of them are supported by industry; some are opposed."

Some say the election calendar is spurring the strategy.

"The message has been clear in the last couple of years that if industries are going to get protection, they need to get it now," because no one knows what will happen in the next election, said Jonathan Turley, a George Washington University law professor.

The NHTSA's push to pre-empt personal injury litigation is based on the agency claim that automakers, fearful of lawsuits, might make roofs too heavy and vehicles, therefore, more prone to roll over.

John G. Womack Jr., a former acting chief counsel at the NHTSA, said equating roof strength with weight is a "very debatable proposition." Other options are to use high-strength steel or widen the stance of vehicles to compensate for heavier roofs, he said.

Groups such as Public Citizen, a consumer watchdog, and the National Conference of State Legislatures, have questioned the NHTSA's authority to protect automakers. A bipartisan group of 26 state attorneys general said in a December letter to the NHTSA that the lawsuit ban, if accepted by the courts, would shift significant costs to the states and conflict with consumer rights.

Bill Walsh, a senior executive at the NHTSA who worked on the rule before retiring in 2004, said the immunity language "was dropped in from out of the blue."

Pre-empting lawsuits, he said, was "different from how we normally operated ... in issuing regulations."

Rosen, Transportation's general counsel, said this is not the first time the NHTSA has tried to override state liability laws. In the 1990s, the NHTSA joined automakers in arguing they should not be sued for not installing air bags at a time when the agency allowed either air bags or automatic seat belts. In 2000, the U.S. Supreme Court agreed that such suits were pre-empted but said that ordinarily compliance with a standard "does not immunize a manufacturer."

Myron Levin and Alan C. Miller write for the Los Angeles Times.

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