Colorado Public Utilities Com'n v. Harmon
| Citation | 951 F.2d 1571 |
| Decision Date | 18 December 1991 |
| Docket Number | No. 89-1288,89-1288 |
| Parties | Nuclear Reg. Rep. P 20,548 COLORADO PUBLIC UTILITIES COMMISSION and State of Colorado, Plaintiffs-Appellees, v. Lawrence HARMON and United States Department of Energy, Defendants-Appellants, Wisconsin Electric Power Company, Virginia Power Company, TU Electric Company, Rochester Gas and Electric Corporation, Public Service Electric & Gas Company, Pennsylvania Power & Light Company, Northern States Power Company, Northeast Utilities, New York Power Authority, Georgia Power Company, Florida Power & Light Company, Duquesne Light Company, Commonwealth Edison Company, Carolina Power & Light Company, Baltimore Gas & Electric Company, American Electric Power Service Corporation, Alabama Power Company, State of California, State of Illinois, State of Michigan, State of Minnesota, State of Nevada, State of Texas, State of Vermont, State of Virginia, State of Washington, State of Wisconsin, New Mexico Health and Environment Department, the Environmental Defense Fund, Amici Curiae. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Kenneth Starr (Michael Jay Singer and Alfred Mollin, Dept. of Justice, Washington, D.C., and Michael J. Norton, U.S. Atty., and Stuart M. Gerson, Asst. Atty. Gen., on the briefs), Dept. of Justice, Washington, D.C., Henry Gill and P. Benjamin Underwood, Office of Gen. Counsel, Dept. of Energy, C. Dean McGrath, Jr., Acting Gen. Counsel, Dept. of Transp., and Barbara Betsock and Edward H. Bonekemper, III, Office of Chief Counsel, Research and Special Programs Admin., Dept. of Transp., of counsel, for defendants-appellants.
Florence J. Phillips , Sp. Asst. Atty. Gen., Cockrell, Quinn & Creighton, Denver, Colo., for plaintiffs-appellees.
Harry H. Voigt, Leonard M. Trosten, and Margaret M. Mlynczak, LeBoeuf, Lamb, Leiby & Macrae, Washington, D.C., on the brief for amici curiae Wisconsin Elec. Power Co., Virginia Power Co., TU Elec. Co., Rochester Gas and Elec. Corp., Public Service Elec. & Gas Co., Pennsylvania Power & Light Co., Northern States Power Co., Northeast Utilities, New York Power Authority, Georgia Power Co., Florida Power & Light Co., Duquesne Light Co., Commonwealth Edison Co., Carolina Power & Light Co., Baltimore Gas & Elec. Co., American Elec. Power Service Corp., and Alabama Power Co.
Donald J. Hanaway, Atty. Gen., and Carl A. Sinderbrand, Asst. Atty. Gen., State of Wis., and Neil F. Hartigan, Atty. Gen., Michelle Jordan, Chief, Environmental Control Div., and J. Jerome Sisul, Asst. Atty. Gen., State of Ill., on the brief, for amici curiae States of Cal., Ill., Mich., Minn., Nev., Tex., Vt., Va., Wash., Wis., and New Mexico Health and Environment Dept.
Melinda Kassen, Sr. Atty., and Carolyn Doris, Legal Intern, Environmental Defense Fund, Boulder, Colo., on the brief, for amicus curiae The Environmental Defense Fund, State of Colo.
Before McKAY, Chief Judge, BARRETT and TACHA, Circuit Judges.
Appellants appeal the district court's order granting summary judgment in favor of the Colorado Public Utilities Commission ("CPUC") and the State of Colorado. On appeal, the Department of Energy ("DOE") argues that the Hazardous Materials Transportation Uniform Safety Act of 1990 ("HMTUSA") and its implementing regulations preempt the CPUC's regulations requiring carriers of hazardous materials to carry the Colorado State Patrol telephone number and an inspection report in the vehicle, to obtain a state permit, and to provide the state with advance notification of shipment. DOE also asserts that the district court failed to give sufficient deference to an inconsistency ruling by the United States Department of Transportation ("DOT"). We exercise jurisdiction under 28 U.S.C. § 1291 and reverse.
In 1975, Congress enacted the Hazardous Materials Transportation Act, 49 U.S.C.App. § 1801, et seq. ("HMTA"). The Act replaced 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); Jersey Cent. Power & Light Co. v. Lacey, 772 F.2d 1103, 1112 (3d Cir.1985), cert. denied, 475 U.S. 1013, 106 S.Ct. 1190, 89 L.Ed.2d 305 (1986). DOT, pursuant to the HMTA, promulgated the Hazardous Materials Regulations ("HMR"), which categorize and classify hazardous materials and impose various requirements on shippers and carriers for shipping papers, marking, labeling, transport-vehicle placarding, and packaging of hazardous materials. 49 C.F.R. §§ 171-179.
In 1986, Colorado enacted the Colorado Nuclear Materials Transportation Act of 1986 ("CNMTA"), codified at Colo.Rev.Stat. § 40-2.2-101, et seq. In May, 1987, the CPUC adopted implementing regulations In 1988, pursuant to 49 C.F.R. § 107.203, DOE requested an advisory opinion from DOT as to whether the CNMTA and the NT-Regulations were preempted by federal law. 1 DOT found that a number of Colorado's regulations, including all of the regulations at issue in this appeal, were preempted.
which are codified at 4 Colo.Code Regs. §§ 723-725 ("NT-Regulations"). Under the CNMTA and the NT-Regulations, transporters of nuclear materials must obtain a permit from and pay a fee to a State agency. To obtain a permit, the applicant must submit driver training certificates (including proof of training for mountainous roads), proof of liability insurance, a nuclear incident plan, and a vehicle equipment failure plan. Colo.Rev.Stat. § 40-2.2-201. The CNMTA also requires the carrier to carry the permit with the shipping papers that must be carried pursuant to federal regulation. Id. § 40-2.2-203. Further, the CNMTA mandates prenotification of all shipments, including the identity of the shipper, carrier, and receiver, a description of the shipment, the routes to be used, and estimated times of arrival and departure. Id. § 40-2.2-209.
In September 1988, the CPUC and Colorado filed an action in the United States District Court for the District of Colorado against DOE, seeking a declaratory judgment that the CNMTA and the NT-Regulations are constitutionally valid and are not preempted by federal law. On January 11, 1989, DOE filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), which subsequently was converted into a motion for summary judgment. Colorado and the CPUC filed a cross motion for summary judgment. After oral argument, at which counsel for both parties conceded that no factual disputes existed, the district court granted Colorado's motion, denied DOE's motion, and ruled that the CNTMA and the NT-Regulations were not preempted by the HMTA. 2 The district court held that there was no preemption because it was not impossible to comply with both sets of regulations simultaneously and because Colorado's regulations promote safety--a predominant goal of the HMTA.
DOE subsequently filed a notice of appeal in order to challenge four of the NT-Regulations. However, before the appeal could be heard, Congress amended the HMTA by enacting the HMTUSA, 49 U.S.C.App. §§ 1801-1819. When Congress amended the HMTA, it expressly specified the standard for determining whether the statute or its implementing regulations preempt state regulations that regulate in the same area. Congress also strongly reaffirmed that uniformity was the linchpin in the design of the statute. We must now decide whether the HMTUSA and its implementing regulations preempt four of Colorado's NT-Regulations.
We review summary judgment orders de novo, using the same standards the district court applies. Osgood v. State Farm Mut. Auto Ins. Co., 848 F.2d 141, 143 (10th Cir.1988). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986).
The Supremacy Clause of Article VI of the Constitution provides Congress with the power to preempt state law. Congress can preempt state law in several ways--one of which is express preemption. Express preemption occurs when Congress, in enacting a federal statute, announces a clear intent to preempt state law. Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977). Express preemption may result not only from action taken by Congress itself; a federal agency acting within the scope of its congressionally delegated authority also may preempt state law. Fidelity Federal Savings & Loan Ass'n v. De La Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982); State Corp. Comm'n of Kan. v. FCC, 787 F.2d 1421, 1425 (10th Cir.1986).
The HMTUSA, like its predecessor, grants the Secretary of Transportation broad powers to promulgate regulations governing the transportation of hazardous materials: 49 U.S.C.App. § 1804(a)(1). Pursuant to this section, the Secretary's regulations establish requirements for, among other things, highway routing, driver training, placarding, and shipping papers.
When it enacted the HMTUSA, Congress specified the standards for preemption under the Act by creating three different standards for separate areas of regulation. Section 1819 establishes the highest preemption...
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