NHTSA: A Penchant for Preemption

Driving Safety Down

The National Traffic and Motor Vehicle Safety Act of 1966, the law that authorizes the National Highway Traffic Safety Administration (NHTSA) to regulate automobile safety standards, makes two points about preemption, and it makes them clearly. First, NHTSA safety regulations preempt conflicting state and local standards. Second, NHTSA regulations do not preempt tort actions under state and law. Specifically, it says,

Compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person [or corporation] from liability at common law. 

That specific language notwithstanding, three times in the last several years NHTSA has baldly asserted that a proposed regulation would preempt state tort law, thus making it impossible – if upheld by the courts – for crash victims to sue for damages when manufacturer negligence caused them harm, provided that the equipment in question complied with NHTSA’s regulations.

On its face, that might seem reasonable. But common law tort claims have a long and successful history of operating side-by-side with regulatory standards, pushing manufacturers toward safer products, helping regulators and the public learn about the sometimes outrageous safety choices manufacturers are making, and giving individual victims an opportunity to recover damages from companies whose negligence caused them serious injury. In the case of NHTSA regulations, automobile manufacturers have a long record of working to delay safety requirements. The industry successfully blocked regulations requiring airbags for more than a decade, for example. And a recently proposed rule governing the stability of car roofs – a major factor in surviving rollovers – will be the first update to that safety standard more than three decades.

In the latest installment of CPR’s Truth About Torts series, Regulatory Preemption at the National Highway Traffic Safety Administration, Member Scholars William Funk, Thomas McGarity, Nina Mendelson, Sidney Shapiro, David Vladeck, and Policy Analyst Matthew Shudtz argue that the mere existence of a NHTSA safety standard should not eliminate a crash victim’s right to make their case to a jury that a manufacturer neglected its duty to design a safe automobile. But that’s exactly what NHTSA’s assertions of preemption are designed to do.

Worse, they argue, defense lawyers for automobile manufacturers have been working to expand the damage from a Supreme Court decision embracing a specific instance of preemption. The Member Scholars write that the defense lawyers have “taken [the Court’s decision] as an open invitation to make preemption claims in every automobile safety lawsuit that implicates a federal safety standard.

The Scholars argue that NHTSA’s assertions of preemption and the courts’ acceptance of them have dubious legal underpinnings. But more than that, they’re bad policy. Even if NHTSA had the statutory authority to preempt tort law, it shouldn’t, they maintain, because doing so slows down the implementation of safer technologies. 

• The Report.  Read The Truth About Torts:  Regulatory Preemption at the National Highway Traffic Safety Administration, by Member Scholars William Funk, Thomas McGarity, Nina Mendelson, Sidney Shapiro, David Vladeck, and Policy Analyst Matthew Shudtz.  And the news release.
• Op-Ed on the Roof Crush Rule and NHTSA Preemption Efforts.  Read "Beware Dangers of Roof Crush Rule," by CPR Member Scholars Sidney Shapiro, Nina Mendelson, and William Funk in the August 4, 2008 Winston-Salem Journal, on the dangers of agency preemption, in the context of the NHTSA's "roof crush" rule.  Or read it in the Ann Arbor News, "NHTSA roof-crush standard could deny justice for crash victims," published September 7, 2008.
• The Rest of the Torts Series.  Read about protecting citizens’ rights to sue for damages, in CPR’s Truth About Torts series.