The Superfund legislation (CERCLA) preempts statutes of limitations established by state law in tort actions involving claims for damages for personal injury or property damages. In CTS Corp. v. Waldburger, No. 13-339 (June 9, 2014), the Supreme Court decided that this federal statutory preemption of state statutes of limitations did not extend to state statutes of repose because of the different purposes underlying the two types of statutes.
While the court reached this decision by a 7 to 2 margin, relying mainly on principles of statutory construction, the majority differed on one significant point, with four of the seven justices in the majority refusing to join the last portion of Justice Kennedy’s opinion of the court. The controversy among the majority justices arose on the issue of whether the concerns of federalism require construing an ambiguous federal statute in such a way as to disfavor preemption of state law.
Writing for himself and for Justices Sotomayor and Kagan on this point, Justice Kennedy quoted from the precedent of Medtronic Inc. v. Lohr (1996) in concluding that the role of states as “independent sovereigns in our federal system… assum[es] that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” (Section II D, Slip Op. at 17.) As such, when the text of the federal law is ambiguous or susceptible of more than one plausible reading, courts ordinarily ” ‘accept the reading that disfavors pre-emption’.” (Id.) This approach is favored because it is ” ‘consistent with both federalism concerns and the historic primacy of state regulation of matters of health and safety’.” (Id.) Moreover, the presumption against preemption “has greatest force when Congress legislates in an area traditionally governed by the States’ police powers” because “States possess the ‘traditional authority to provide for remedies to their citizens’ as they see fit.” (Id.)
In an opinion concurring with all but this last section of the majority opinion, Justice Scalia disagreed with Justice Kennedy’s approach. His opinion was joined by Chief Justice Roberts and Justices Thomas and Alito. In their view, ” ‘[t]he proper rule of construction for express pre-emption provisions is…the one that is customary for statutory provisions in general: Their language should be given its ordinary meaning’.” Justice Scalia characterized the view that express preemption provisions were to be narrowly construed as “extraordinary and unprecedented” when it was adopted twenty years ago, and contended that it should therefore be abandoned.
That four conservative justices took this position demonstrates that principles of federalism do not always control their decisions. Their joinder in this concurring opinion is especially striking given the twenty-year precedent supporting the position taken by Justice Kennedy — the court’s most vigorous proponent of federalism. Indeed, the concurring justices are only one vote way from reversing this federalism approach to the determination of statutory preemption issues.