Amicus Curiae Brief — Rowe v. New Hampshire Motor Transport Ass'n

SISAY

BM" No. 06-457

In the Supreme Court of the Gnited States

G. STEVEN ROWE, ATTORNEY GENERAL OF MAINE,

Petitioner,

Vv.

NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF OF THE AMERICAN TRUCKING ASSOCIA-

TIONS, INC. AND THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

ROBERT DIGGES, JR. EVAN M. TAGER

ATA Litigation Center Counsel of Record

950 N. Glebe Road, Suite 210 JACK L. WILSON

Arlington, VA 22203-4181] Mayer Brown LLP

(703) 838-1865 1909 K Street, NW

ROBIN S. CONRAD Washington, DC 20006

AMAR D. SARWAL (202) 263-3000

National Chamber

Litigation Center, Inc.

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

TABLE OF CONTENTS

Page

ee Be cciensenticnnssrocevenessnescansnvneeennennanid ii

INTEREST OF THE AMICI CURIAE ..........0:ccccsecesesesceseeeeeees l

INTRODUCTION AND SUMMARY OF

TEATS Rete ee aan ne 3

I aa ites ca tesieainisemiignannaaleiaimsiiel 6

I. The FAAAA Broadly Protects Carriers Aaplan A

Patchwork Of Burdensome State Regulations. ................ 6

II. The FAAAA Preempts All Laws That “Relate[]

To” Carriers’ Prices, Routes, Or Services........................ 7

III. The Maine Tobacco Delivery Law Expressly

References Carriers’ Services And Significantly

Interferes With Carriers’ Processing And Delivery

III, ccinnctcinenpeenietasiateenionsiainmmdnntiseniniemmnnemenesnaees 9

IV. The Structure Of Federal Motor Carrier

Regulation As A Whole Confirms That There Is

No “Dangerous Substances” Exception To

PAAAA PUSGtigtiee. ........c.cececcscscsssececscrsovesscscensssoccesecees 16

V. There Is No “Presumption Against Preemption”

When A State Attempts To Regulate In An Area

That Is Historically A Subject Of Federal

BRITE. .vercecncrsevsecvesecosssesosessenenseenscnovecnncseuscosssooeseesees 19

VI. Congress Has Not Endorsed Or Approved The

Maine Tobacco Delivery Law. ..............scccsssssssessesseeees 22

ND ctesinitviccansiiiataesiininsmnndnineninenimasinntionintees 23

TABLE OF AUTHORITIES

Page(s)

CASES

A.L.A. Schechter Poultry Corp. v. United States,

I: ATT occ nsdccinneasliiaiininiteinidintnesepnenioneddesenties 21

Am. Amusement Mach. Ass'n v. Kendrick,

ee Oe Rs Be icrtertcrncentnpsereieremnenmnen 14

Bd. of Educ., Island Trees Union Free Sch.

Dist. No. 26 v. Pico, 457 U.S. 853 (1982)........cccccceeeeees 14

Buck v. Kuykendall, 267 U.S. 307 (1925).........:ccccccseseesseeees 20

City of Columbus v. Ours Garage & Wrecker

Serv., Inc., 536 U.S. 424 (2002) .......ccesccsreeserenees 17, 19

Colo. Pub. Utils. Comm'n v. Harmon,

Be ae Oe Ty Ct i Pecticccresccrvsnaresccnsensevesenese 18

Fed. Express Corp. v. Cal. Pub. Utils. Comm'n,

ee Bre Ee Be itccereccccnenccenscevesevecowecnes 8, 10

Gade v. Nat’! Solid Wastes Mgmt. Ass'n,

a es NE anesnicisitenineasccnccncccnanestnsciiscinipuissits 21

George W. Bush & Sons Co. v. Maloy,

ee ee ee I insicicnsicntivcaccenissnnennpecnerensenseciumscensen 20

Healy v. The Beer Inst., 491 U.S. 324 (1989) ........cccccceeeees 13

Mich. Pub. Utils. Comm'n v. Duke,

Et Ion antepnisnceserienenscnnenbnonnnnmiundnianniaitin 20

Morales v. Trans World Airlines,

ae Ss Ue ED seca vesenemernennmnmancnsartorsvamesintts passim

Nat’l Freight, Inc. v. Larson,

EP EIS SPD receccnsesesesnsessenensennvremnmmaninees 17

United Parcel Serv., Inc. v. Flores-Galarza,

kL eee 10

United States v. Connecticut, 566 F. Supp. 571

(D. Conn.), aff'd mem., 742 F.2d 1443

(2d Cir. 1983), aff'd mem., 465 U.S. 1014 (1984)........ 18

iii

TABLE OF AUTHORITIES—continued

Page(s)

United States v. Locke, 529 U.S. 89 ...........ccccceseeeeeeeeeees 20, 21

Yellow Transp., Inc. v. Michigan, 537 U.S. 36 (2002)........ 19

STATUTES, RULES AND REGULATIONS

BUD. CRIT. G00. TV, GB. B.nccccccerccorscccscevecscsseccosscscccssssosescosones 22

BE Fe BF encncesesseccsessescansersecsentonesnsenensonsennnenonticcsessanees 17

i, HN cccccinsistesininnntesscocecenssegenesemmeanvesonneensanesiats 22

tk Todt E ” | | SE eeeeeennnrnrren 3,7,9

BD U.S.C. BB BGSOIS AMA). cvcececesesccvesescccccessocccccccsessssssces 16

BA, © a i cctcseccnscenescoccccessececeseeceosncesonssssoneenncnen 17

eee Oe ID sieccccacceessncsscnsccnscncecssannnesesensnevenssenenenenten 17

i Fe OE cccisesccenesncevmescnsctocncensssoconsinnstnenousmenmevsion 17

| ol | | eae 17

eID dcticticincesssccemeumneonenssaieteeusnemnannnnennnendei 16, 17

es I sccctticcsesccsnncssenccconesccserssusecesavinsnnsosanesinsnnte 17

od Te) | eee aen 3

Fk ade Tf \ eee 3,9

Sai, BR iccccccaccccccrvesescecncesevnsesensnssanoevnenes 16

i Oe i teititisniscsectenicecsnnsceccnscnnecsenvvecemenemannvasiennetiin 18

I I aitrtiecetniterccctrssavereresessemnneemnremmmmnanvenentin 18

Bs BP cicertecececncsnmssenensccsesosecsnecessencsnvensssncsovesssen 22

ADAMHA Reorganization Act, Pub. L. No. 102-321,

Title 11, § 202, 106 Stat. 323, 394

(1992 “Synar Amendment”’).............:cssceseeneeeeeerereeee 22

Federal Aviation Administration Authorization Act,

Pub. L. No. 103-305, tit. VI, § 601(a)(1),

Be ee, Bk Be CE cscs cncncsecscncceccsseensesesens 5,6

iV

TABLE OF AUTHORITIES—continued

Page(s)

Hazardous Materials Transportation Uniform

Safety Act of 1990, Pub. L. No. 101-615,

es BN I setisectnicccncnsscnerisiissnenenecesenmseccoscossene 18

Motor Carrier Act of 1935, Pub. L. No. 74-255,

i Ie III cncstcsccsscinicsssenssascesenicenrecastovetsoounscenees 21

Motor Carrier Act of 1980, Pub. L. No. 96-296,

Ny Se iiciiiccdsicprcniencescscsectesnmiasmnevessesemeuneeanes 6

Motor Carrier Safety Act of 1984,

Pub. L. No. 98-554, tit. II, 98 Stat. 2832 (1984)........... 16

National Industrial Recovery Act, Pub. L. No. 73-67,

NITE scisciiicinsispisinniieadtentneanipesnonensseerennesesonees 21

Surface Transportation Assistance Act of 1982,

Pub. L. No. 97-424, 96 Stat. 2097 (1983) .........:ccceseeeees 17

Uniform Carrier Registration Act,

Pub. L. No. 109-59, §§ 4301-08,

114 Stat. 1144, 1761-74 (2005)......... ce eeeeeeseeereeeeeeeees 19

PAE TIE, © eR csctnccccscctscsccncccceiccsccseescosesoseses 12

ARIZ. REV. STAT. ANN. § 13-3502................:::eeeeseeseeeeceeerees 15

ARIZ. REV. STAT. § 42-3225(A)(2) ........sssccesseeesserereesseeeenens 12

GIG, GIG, SEAT. © BI cnecceressccscccsorcccrssveccosesesssoncsssess 12

30 DEL. CODE ANN. § 5365(a)(2) ...............:::sceeeeeeseeseeeeeeeees 12

IND. CODE ANN. § 24-3-5-S(a)(1).......ccccssceeereesseesersesenseeenees 12

LA. REV. STAT. ANN. §47:871 - 1878 ..0....ccccccsessseesseseeneeeeees 12

Fa, I, GION PLD coccvccccscccssccccosescssccnsesccnsceees 15

Be ls Ses 0 Se eciecccccccencnsssecsnscrensessccseloonoyensios 12

Fe BE, BG. OE. © TD ccecscvvcscescncscccccccscncssnsesocnesoscese 13

NEV. REV. STAT. § 202.24935(2),

amended by 2007 NEv. LAWS CH. 434, § 42.........::00 12

N.Y. AGRIC. & MKTS. LAW § 96-z-11 ...............cccceececeeeeeeees 15

Vv

TABLE OF AUTHORITIES—continued

Page(s)

N.Y. PuB. HEALTH LAW § 1399-11(2) .............eceeeeeee iitaidaida 12

68 OKLA. STAT. § 317.4(A)(2) ........ccccececeeeceeeeeeeeeeee anaieaahate 12

TEX. HEALTH & SAFETY CODE ANN. § 161.451...... sevteisuaiia 12

VA. CODE ANN. § 18.2-246.7 oo... ccccceseccesesteeeeeeenens instseilaa 12

WASH. REV. CODE § 70.155. 105(4)...........cccccceeeeeeeceeeeeenees 12

W. VA. CODE ANN. § 16-9E-4(a)(2) ........:ccecseeeeeees incuba 12

2003 Me. Laws ch. 444, available at http://www.

maine.gov/ag/dynid/documents/p1444. pdf ........ scliaansiiisia 9

MISCELLANEOUS

AP, Angry Chefs Cook Up Lawsuit Over Foie Gras

Ban, Aug. 22, 2006, available at

http://www.msnbc.msn.com/id/1447297 I/ ........c0cc000 14

Greg Bluestein, Atlanta Baggy-Pants Ban Debate

Drags On, ABCNEWS.com, Aug. 22, 2007,

available at http://abcnews.go.com/US/wire

RI TIS cappsnasccacesesemiesstnnaresnnanessmaesenncostenemeeen 15

WILLIAM R. CHILDS, TRUCKING AND THE PUBLIC

INTEREST: THE EMERGENCE OF FEDERAL

REGULATION 1914-1940 (1985) occ cececeeee seeeeeeeees 20

Claudia H. Deutsch, Still Brown, But Going High

Tech, N.Y. TIMES, July 12, 2007, at C1 oo... cee eeeeeeees 10

Deutsche Post World Net, Cleared for Take-Off, at

http://www.dpwn.de/dpwn?skin=hi&check=yes

&lang=de_EN&xmlFile=2007711 ..............0000 italiana 11

Federal Express, 2007 Annual Report,

available at http://tinyurl.com/2hj4h6 .............0. cece 10

Justin Gillis, Herbal Remedies Turn Deadly for

Patients, WASH. POST, Sept. 5, 2004, at AO1................ 15

vi

TABLE OF AUTHORITIES—continued

Page(s)

Daniel Gross, One Word: Logistics; The Unheralded

Key to the New Economy, SLATE, Jan. 20, 2006, at

http://www. slate.com/id/2 134513 ........ccceeeereereneeeeneens 4

Danie) Gross, UPS v. FedEx; Which Company is

Right About the Economy, SLATE, July 28, 2006,

at http://www.slate.com/id/2 146636 ..........ccccceeereeen 4

Leslie S. Hough & Maciek Nowak, The Package

Express Industry: A Historical and Current

Perspective, in

TRUCKING IN THE AGE OF INFORMATION 77

(Dan Belman & Chelsea White III eds., 2005) ............... 4

H.R. Conf. REP. No. 103-677 (1994),

reprinted in 1994 U.S.C.C.A.N. at 1715......... 1, 7, 12, 16

H.R. REP. No. 96-1069 (1980), reprinted in

Te 6

Internet Tobacco Sales Enforcement Act, H.R. 2824,

III, Gl creenecenscscccecsnsesenescssescceseccencccsecsccecesse 23

Mayo Clinic, Weight-Loss Pills: What Can Diet

Aids Do For You? at http://www.mayoclinic.com/

health/weight-loss/HQO1 160............ccccccccssceeseeeeeeeeeeenees 15

John McPhee, Out in the Sort: Lobsters,

Bats, and Bentleys in the UPS Hub,

THE NEW YORKER, Apr. 18, 2005, at 161 ...............008 11

JOHN MCPHEE, UNCOMMON CARRIERS (2006) ................... ll

Thomas Gale Moore, Unfinished Business in Motor

Carrier Deregulation, 14 REGULATION No. 3

(1991), available at http://www.cato.org/pubs

/regulation/regy 14n3/reg 14n3-moore.htm] ................... 20

Vii

TABLE OF AUTHORITIES—continued

Page(s)

Edward K. Morlok et al., The Parcel Service Industry

in the U.S.: Its Size and Role in Commerce

(Univ. of Penn. 2000), available at http://www.

seas.upenn.edu/~morlok/morlokpage/parcel.html .......... 4

Caleb Nelson, Preemption,

BD ks Ries Se SE ED envencncetenceccnnneneesscessnescesccseveses 22

Michael J. Norton, Note, The Interstate Commerce

Commission and the Motor Carrier Industry—

Examining the Trend Toward Deregulation,

I IIL, TE cisidireninnssnaiteitaitintedgiarenanendenseencesusie 6

Oxford Economic Forecasting, The Impact of the

Express Industry on the Global Economy

(Mar. 2005), available at

http://timyurl .com/2dg7de ...........ccccsccecseeeseeseeeeseeeeeees 3,4

Alex Pham, Video Games; Marathon Sessions Take

Over Players: Is That Sick?, L.A. TIMES,

I Tie eee Ce ceeeeneccesnsecesionsccececensenennenscaseccsenccssens 14

Prevent All Cigarette Trafficking Act, S. 1177,

PE GID, Gira venccneccsscsenesesssscesceresscsosssssenes eon Ebene 23

Prevent All Cigarette Trafficking Act, S. 3810,

ee I, Ge ccescccnereccnsessccncsssecssenecesssenes -snsnnenseee 23

Prevent All Cigarette Trafficking Act, S. 1027,

So eee seinen 23

LAWRENCE S. ROTHENBERG, REGULATION,

ORGANIZATION, AND POLITICS: MOTOR

FREIGHT POLICY AT THE INTERSTATE

COMMERCE COMMISSION (1994) ............ccccecceceeseeeeeeeeees 20

Be a TTI sscinchiienncinininenniennbieninmniiansbentes 18

Vili

TABLE OF AUTHORITIES—continued

Jennifer Baljko Shah, FedEx’s Hub of Supply Chain

Activity, ELECTRONIC BUYERS’ NEws,

May 10, 2001, available at

http://timyurl.com/3a5O22 ............-.scceeeeseeeceeeeeeeseees

State Motor Carrier Laws: Hearing on S. 1491

Before the Subcomm. on Surface Transp. of the H.

Comm. on Pub. Works & Transp., 103d Cong.

(July 20, 1994) (testimony of Frank E. Kruesi,

Assistant Secretary, U.S. Department of

Transportation), available at 1994 WL 377958......

State of Maine, Office of the Atty. Gen.,

Tobacco Delivery Compliance Page, at

http://www.maine.gov/ag/tobacco/delivery_

compliance.html (last visited October 9, 2007) .....

John Stossel, Trans Fat Ban is “Nanny State”

Intrusion, ABCNEWS.com, Dec. 6, 2006, at

http://abcnews.go.com/2020/story

MG=Z7OS4 1 LAcpageal ...........cccscessrersersersecsssesssorees

Tipper Gore Widens War on Rock,

N.Y. TIMES, Jan. 4, 1988, at C18... eee

Tobacco Free Internet for Kids Act of 2003,

H.R. 3047, 108th Cong. (2003)...........cccceeccceecereees

UPS, 2006 Annual Report, available at

http://tin yurl cOM/2C4564 ...........ccccceeseeeseseeeeeeeeeees

U.S. Census Bureau, 2002 Economic Census,

2002 Commodity Flow Survey (Dec. 2004),

available at http://www.census.gov/

prod/ecO2/ecO2tcf-us. pdf .........cccccsesercereessceneeeeeees

U.S. Dep’t of Transp., FMCSA, FY2008 Budget

Estimates, available at http://www.fmcsa.dot.gov/

documents/about/FMCSA-FY -08-Budget-Est.pdf.

Page(s)

sscom 14

BRIEF OF THE AMERICAN TRUCKING ASSOCIA-

TIONS, INC. AND THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE'

The American Trucking Associations, Inc. (“ATA”) is a

trade association of motor carriers, state trucking associa-

tions, and national trucking conferences created to promote

and protect the interests of the trucking industry. Directly

and through its affiliated organizations, ATA represents over

30,000 companies and every type and class of motor carrier

operation in the United States, including parcel delivery

companies, companies whose operations are categorized as

less-than-truckload (“LTL”), and companies that primarily

haul truckload quantities of freight. ATA regularly advo-

cates the trucking industry’s common interests before this

Court and other courts. ATA and its members have a strong

interest in motor carrier regulations generally, and ATA has

special familiarity with the issue of preemption under the

Federal Aviation Administration Authorization Act

(“FAAAA”) raised in this case because it actively partici-

pated in the formulation of federal motor carrier deregulation

policy in Congress. See H.R. CONF. REP. No. 103-677, at 88

(1994), reprinted in 1994 U.S.C.C.A.N. at 1715, 1760.

The Chamber of Commerce of the United States of

America (“the Chamber’) is the world’s largest business fed-

eration, representing a membership of more than three mil-

lion businesses and organizations of every size. The Cham-

ber’s members, including its motor carrier members, operate

' Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part and that no person other than

amici and its counsel made a monetary contribution to its prepara-

tion or submission. The parties’ letters consenting to the filing of

this brief have been filed with the Clerk’s office.

2

in every industry sector of the economy, throughout the

United States, and around the globe. The Chamber’s mem-

bers rely on parcel delivery companies and other motor carri-

ers to deliver needed raw materials and components and to

distribute their products on a timely, efficient, and cost-

effective basis. A central function of the Chamber is to rep-

resent the interests of its members in important matters be-

fore this Court and other courts, Congress, and the Executive

Branch. To that end, the Chamber has filed amicus briefs in

numerous cases addressing issues of vital concern to the Na-

tion’s business community.

The national trucking industry is of massive size and

scope and is an essential pillar of the American economy and

lifestyle. The U.S. Department of Transportation’s Federal

Motor Carrier Safety Administration (“FMCSA”) estimates

that there are almost 685,000 motor carriers operating in in-

terstate commerce.” In 2002, nearly eight billion tons of

freight (over 2/3 of domestic tonnage shipped) with a value

of over $6 trillion moved by truck.’ To efficiently and com-

petitively undertake the more than six million estimated daily

shipments needed to move this volume of freight, trucking

companies need to employ uniform procedures free of indi-

vidualized state regulatory requirements that impede the free

flow of trucking commerce. An overarching federal regula-

tory network accompanied by strong preemption allows the

trucking industry to meet the needs of the American econ-

omy.

2 US. Dep't of Transp., FMCSA, FY2008 Budget Estimates at

4A-9, available at http://www.fmcsa.dot.gov/documents/about/

FMCSA-FY -08-Budget-Est.pdf.

> U.S. Census Bureau, 2002 Economic Census, 2002 Commod-

ity Flow Survey, tbl.la (Dec. 2004), available at

http://www.census.gov/prod/ecO2/ecO2tcf-us.pdf.

3

INTRODUCTION AND SUMMARY OF ARGUMENT

The FAAA broadly preempts any “law * * * related to a

price, route, or service of any motor carrier” or any “air car-

rier * * * transporting property * * * by motor vehicle.” 49

U.S.C. §§ 14501(c)(1) & 41713(b)(4)(A). These preemption

provisions were enacted in 1994 with the goal of eliminating

the “patchwork” of burdensome state trucking regulations

that had developed and to ensure that States would not undo

federal deregulation with regulation of their own. To achieve

this goal, Congress incorporated the “broad” preemptive lan-

guage and effect of the Airline Deregulation Act (“ADA”),

49 U.S.C. § 41713(b)(1), as interpreted by this Court in

Morales v. Trans World Airlines, 504 U.S. 374 (1992). Ac-

cordingly, like the ADA, the FAAAA preempts all laws that

expressly reference or significantly affect a price, route, or

service of any motor carrer. FAAAA preemption is an es-

sential component of the broader federal policy of uniform

regulation of interstate motor carriers, as evidenced by the

FAAAA’s legislative history and the structure of federal mo-

tor carrier regulation as a whole. This policy permits carri-

ers—such as UPS, Federal Express (“FedEx”), DHL, and

others—to achieve an efficient and “standard way of doing

business” nationwide.

7,“

Express carriers’ “standard way of doing business”—and

the timely, efficient, and cost-effective delivery of packages

it enables—is essential not only to the carriers themselves but

also to their customers who rely on them and to the economy

as a whole. While the “express industry makes a significant

direct contribution to the global economy,” “[t}he most im-

portant role of the express industry is in facilitating the suc-

cess of other parts of the global economy.”* Moreover, while

the express delivery industry is already “a major element of

4

Oxford Economic Forecasting, The Impact of the Express In-

dustry on the Global Economy at 3 (Mar. 2005), available at http://

tinyurl.com/2dg7de.

4

the transportation infrastructure of the nation” and “essential

[to] modern commerce,” “current trends suggest that [it] will

assume an even more significant role in the future.” Among

these trends are the ever-increasing sales of online retailers

who rely on carriers such as UPS, FedEx, and DHL to pro-

vide the timely delivery services their customers demand.°

Finally, because these carriers not only deliver products to

customers but also transport the components of many of the

same products during the course of the manufacturing proc-

ess,’ any disruptions or price increases caused by a patch-

work of state regulations will have a cumulative effect that

* Edward K. Morlok et al., The Parcel Service Industry in. the

U.S.: Its Size and Role in Commerce, at i (Univ. of Penn. 2000),

available at http://www.seas.upenn.edu/~morlok/morlokpage/par

cel.html; see also, e.g., id. at 20-31 (describing the importance of

parcel service to the economy); Leslie S. Hough & Maciek Nowak,

The Package Express Industry: A Historical and Current Perspec-

tive, in TRUCKING IN THE AGE OF INFORMATION 77, 77 (Dan Bel-

man & Chelsea White III eds., 2005) (“The package express indus-

try in the United States” “is a central and dynamic element of the

world economy, playing a critical role in the rapid movement of

freight within an increasingly globalized economy.”); cf. Daniel

Gross, UPS v. FedEx; Which Company is Right About the Econ-

omy, SLATE, July 28, 2006, at http://www.slate.com/id/2 146636

(“UPS and FedEx both make excellent bellwethers for the stock

market as well as the economy at large. They have their fingers on

the pulse of trade and services. When the economy is humming,

these firms process ever-larger quantities of parcels, envelopes,

and boxes.”’).

® Eg., Daniel Gross, One Word: Logistics; The Unheralded

Key to the New Economy, SLATE, Jan. 20, 2006, at http://www.

slate.com/id/2 1345 13.

’ E.g., The Impact of the Express Industry on the Global Econ-

omy, supra note 4, at 23-25; Morlok et al., supra note 5, at 29-30.

5

ultimately will be borne by consumers and the economy as a

whole.*

For these reasons, it is of great concern to the U.S. busi-

ness community that the FAAAA be applied as it is wnt-

ten—as preempting any state law that “relate[s] to” rates,

routes, and services, and not just state laws that directly regu-

late the same, as petitioner would have it. Anything less than

the broad preemptive scope that Congress intended will be

insufficient to keep this vital channel of interstate commerce

clear and unobstructed.

Under Morales and a straightforward reading of the

FAAAA’s text, the Maine Tobacco Delivery Law is pre-

empted because it both expressly references carriers’ services

and significantly affects rates, routes, and services by disrupt-

ing carriers’ standard way of doing business. Petitioner's

cramped theory of FAAAA preemption must be rejected be-

cause it would expose carriers to precisely the sort of patch-

work of state regulations that the statute was intended to

eliminate, as each State could adopt its own unique and vary-

ing requirements for the delivery of tobacco and anything

else deemed “dangerous” or “unhealthy.” See Pet.’s Br. at 2.

Such inconsistent state regulations not only are preempted by

the FAAAA but also are inconsistent with the structure and

purposes of federal motor carrier regulation as a whole. See

Part IV, infra.

Petitioner’s arguments notwithstanding, there is no “pre-

sumption against preemption” of such burdensome state

regulation of a pervasively interstate industry that has been

the subject of extensive federal regulation almost from its in-

ception. Nor does the Synar Amendment shield the Maine

® Cf. FAAAA, Pub. L. No. 103-305, tit. VI, § 601(a)(1), 108

Stat. 1569, 1605 (1994) (finding that the then-existing patchwork

of state regulations had imposed “an unreasonable cost on the

American consumers” and an “unreasonable burden on interstate

commerce” as a whole).

6

laws from FAAAA preemption. Without a doubt, States may

prohibit tobacco sales to minors and punish retailers who vio-

late the prohibition. What they may mot do, however, is

regulate carriers’ services and distribution procedures on a

varying, state-by-state basis in an effort to conscript them

into the policing and enforcement of such laws.

ARGUMENT

I. The FAAAA Broadly Protects Carriers Against A

Patchwork Of Burdensome State Regulations.

Beginning with the Motor Carrier Act of 1980, Pub. L.

No. 96-296, 94 Stat. 793 , Congress has made a commitment

to deregulate the motor carrier industry. At that time, Con-

gress found that “[t}he existing regulatory structure ha[d]

tended in certain circumstances to inhibit innovation and

growth and ha[d] failed, in some cases, to sufficiently en-

courage operating efficiencies and competition.” H.R. REP.

No. 96-1069, at 10 (1980), reprinted in 1980 U.S.C.C.A.N.

2283, 2292; see also, e.g., Michael J. Norton, Note, The In-

terstate Commerce Commission and the Motor Carrier In-

dustry—Examining the Trend Toward Deregulation, 1975

UTAH L. REV. 709, 709 (reporting that federal motor carrier

“regulation has recently come under attack for causing ineffi-

ciencies and wastefulness, and for repressing technological

advances in the industry”). Thus, in order to remove obsta-

cles to innovation and to encourage efficiency, Congress sig-

nificantly deregulated the industry at the federal level.

It soon became clear, however, that federal deregulation

could not achieve its objectives as long as burdensome and

inconsistent state regulation persisted. In 1994, Congress

found that “the regulation of intrastate transportation of prop-

erty by the States” continued to “impose{] an unreasonable

burden on interstate commerce;” “impede[] the free flow of

trade, traffic, and transportation of interstate commerce;” and

“place[] an unreasonable cost on the American consumers.”

FAAAA, Pub. L. No. 103-305, tit. VI, § 601(a)(1), 108 Stat.

7

1569, 1605 (1994). Specifically, Congress found that state

regulation “causes significant inefficiencies,” “increase[s]

costs,” and “inhibit{[s}] * * * innovation and technology.”

H.R. ConF. REP. No. 103-677, supra, at 87. Indeed, despite

deregulatory efforts at the federal level, “[t]he sheer diversity

of [state] regulatory schemes [remained] a huge problem for

national and regional carriers attempting to conduct a stan-

dard way of doing business.” Jbid. Therefore, in order to

free carriers from this burdensome “patchwork” of state regu-

lation, Congress concluded that “preemption legislation

[was] in the public interest as well as necessary to facilitate

interstate commerce.” Ibid.

To achieve its deregulatory goals, Congress purposefully

copied the preemptive language of the ADA (id. at 83): Like

the ADA, the FAAAA preempts any “law * * * related to a

price, route, or service of any * * * carrier.” 49 U.S.C. §

14501(c)(1) (emphasis added); see also id. § 41713(b)(4)(A).

But see Pet.’s Br. at 18 (asserting that “[t]he preemptive lan-

guage” Congress selected is, “of course, * * * relatively

meaningless”). Further, Congress specifically intended to in-

corporate “the broad preemption interpretation adopted by

[this] Court in Morales.” H.R. CONF. REP. No. 103-677, su-

pra, at 83; see also Morales, 504 U.S. at 383 (these “words

*** express a broad pre-emptive purpose”). Under

Morales, any state law that expressly references or signifi-

cantly affects a price, route, or service of any carrier is pre-

empted. 504 U:S. at 388.

Il. The FAAAA Preempts All Laws That “Relate[{] To”

Carriers’ Prices, Routes, Or Services.

Contrary to petitioner's arguments, the FAAAA pre-

empts all laws that “relate[] to a price, route, or service of

any * * * carrier,” 49 U.S.C. § 14501(c)(1), not just “eco-

nomic regulations.” Petitioner's attempt to separate “eco-

nomic regulations” from laws governing the delivery of

“dangerous” substances or “public health delivery laws” has

no basis in the statute itself and would ultimately prove un-

8

workable. See Part Ill, infra. The distinction also misreads

one important pre-FAAAA precedent and essentially repack-

ages an argument this Court rejected in Morales.

Petitioner cites approvingly the Department of Transpor-

tation’s testimony that the FAAAA’s preemption provision

“would codify [Federal Express Corp. v. California Public

Utilities Commission, 936 F.2d 1075 (9th Cir. 1991)}, with

one major difference”—i.e., it would extend the benefits of

federal preemption “to a much broader class of carriers.”

Pet. Br. at 30 (quoting State Motor Carrier Laws: Hearing

on S. 1491 Before the Subcomm. on Surface Transp. of the H.

Comm. on Pub. Works & Transp., 103d Cong. (July 20,

1994) (testimony of Frank E. Kruesi, Assistant Secretary,

U.S. Department of Transportation), available at 1994 WL

377958). While the Ninth Circuit did refer to “economic”

and “non-economic” regulations in the FedEx case, it did not

do so in the same sense that petitioner now uses those terms.

Rather, the Ninth Circuit reasoned:

Most of the regulations challenged here are obvi-

ously econom‘c—they bear on price. Those regula-

tions which are not patently economic—the rules on

claims and bills of lading, for example—relate to

the terms on which the air carrier offers its services.

Terms of service determine cost. To regulate them

is to affect the price. The terms of service are as

much protected from state intrusion as are the air

Carrier’s rates.

936 F.2d at 1078.

Thus, the Ninth Circuit recognized that even regulations

that were “not patently economic” were still subject to pre-

emption under the statute. And, as a matter of simple logic,

if regulations “relate to terms of service,” and “[tJerms of ser-

vice determine cost,” then the regulations ultimately “affect

the price.” This logic plainly supports respondents in this

case: The Maine Tobacco Delivery Law’s terms of delivery

9

and package processing requirements could easily be substi-

tuted for “bills of lading” in the Ninth Circuit opinion and the

outcome would be the same.

, “ce

Moreover, petitioner’s “economic regulation” limitation

is reminiscent of one of the arguments this Court rejected in

Morales. There, the attorneys general argued that the ADA

precluded States only from “actually prescribing rates,

routes, or services.” 504 U.S. at 385. As the Court recog-

nized, this argument would nullify the broad preemptive lan-

guage used in the ADA (and later in the FAAAA) by “simply

read[ing] the words ‘relating to’ out of the statute.” /bid.

“Had the statute been designed to pre-empt state law in such

a limited fashion, it would have forbidden the States to ‘regu-

late rates, routes, and services.’”” Ibid. Just as in Morales

there was no valid basis for replacing the broad “relating to”

with the more narrow “regulate,” in this case petitioner iden-

tifies no valid basis for replacing any “law” with the amor-

phous category of “economic regulations.”

Ill. The Maine Tobacco Delivery Law Expressly Refer-

ences Carriers’ Services And Significantly Interferes

With Carriers’ Processing And Delivery Services.

The Maine Tobacco Delivery Law is preempted under

the FAAAA because it both expressly references carriers’

services and significantly affects their processing and deliv-

ery capabilities—and, by extension, their prices. To begin

with, the express purpose of the statute—“An Act To Regu-

late the Delivery and Sales of Tobacco Products and To Pre-

vent the Sale of Tobacco Products to Minors”’°—is to regu-

late and impose requirements on carriers’ deliveries. And it

9

The FAAAA preemption provisions actually use the purpose-

fully broad phrase: “law, regulation, or other provision having the

force and effect of law related to a price, route, or service of any

* * * carrier.” 49 U.S.C. § 14501(c)(1); see id. § 41713(b)(4)(A).

‘0 2003 Me. Laws ch. 444 (emphasis added), available at

http://www.maine.gov/ag/dynld/documents/p1444_pdf.

10

should be beyond dispute that delivering packages is a ser-

vice of package delivery companies such as UPS, FedEx, and

DHL. Further, by imputing knowledge of a package’s con-

tents based on the identity of the shipper or markings on the

package, the Tobacco Delivery Law expressly imposes addi-

tional obligations on carriers’ distribution operations and de-

liveries. These express references to and direct regulation of

carrier services can and should be the end of the inquiry un-

der Morales. See 504 US. at 388.

But even beyond the Tobacco Delivery Law’s express

references to carriers’ services, it is also clear that the law has

a “forbidden significant effect upon” carriers’ rates, routes,

and services. Ibid. Given the volume of packages they han-

dle on a daily basis, it is something of an understatement to

say that the operations of carriers such as UPS, FedEx, and

DHL “depend upon an orderly flow of packages.” United

Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d 323, 336 (ist

Cir. 2003). Indeed, on average, UPS and FedEx alone ship

about 20,000,000 packages a day in the United States."

“When you handle millions of packages, a minute’s delay

can cost a fortune[.]” Claudia H. Deutsch, Still Brown, But

Going High Tech, N.Y. TIMES, July 12, 2007, at Cl (internal

quotation marks omitted); see also, e.g., Fed. Express Corp.,

936 F.2d at 1077 (“Federal Express guarantees delivery by

10:30 a.m. the day after a package has been picked up. There

is a full refund if a package is even one minute late. To keep

this schedule, even the most minor delays must be

avoided|.]}”’).

These carriers “can only provide timely package delivery

if [they] follow[] uniform procedures” for processing and de-

livering packages (Pet. App. 28), and all have therefore in-

vested billions of dollars in developing, standardizing, and

'! See FedEx, 2007 Annual Report at 40, 42, available at http://

tinyurl.com/2hj4h6; UPS 2006 Annual Report, Form 10-K, at 20,

available at http://tinyurl.com/2c4564.

11

fine-tuning their processes (e.g., Deutsch, supra). The result

is “a science that many companies aspire to: uniform busi-

ness processes * * * worldwide * * * and a detailed plan of

how products move through the pipeline.” Jennifer Baljko

Shah, FedEx’s Hub of Supply Chain Activity, ELECTRONIC

Buyers’ NEws, May 10, 2001, available at http://tinyurl.com

/3a5b22. Uniformity begins at the “hub”'? and extends out-

ward, establishing consistent practices and procedures for

pickups and deliveries worldwide.

‘2 For a description of UPS’s hub in Louisville, Kentucky, see

JOHN MCPHEE, UNCOMMON CARRIERS 163-84 (2006), originally

published as Out in the Sort: Lobsters, Bats, and Bentleys in the

UPS Hub, THE NEW YORKER, Apr. 18, 2005, at 161. As McPhee

describes:

If no problem develops along the way, a standard six-sided

package going through the hub will be touched twice by human

beings: as it is unloaded on entry and as it is loaded into a can

after its trip through what the UPS workers universally call “the

sort.” Some five thousand workers come nightly to the sort, but

few of them ever touch a package, which is largely what the

hub is about, as it carries automation off the scale of compre-

hension.

UNCOMMON CARRIERS at 164. “The sort” consists of “{a] hundred

and twenty-two miles of belts and monorails” packed into a space

“a scant half-mile long.” Jd. at 165-66. A package entering “the

sort” typically arrives at the airplane headed for its destination in

about eight to ten minutes, having traveled at least two miles in the

process. Id. at 163, 165-68.

FedEx’s “World Hub” or “Memphis Super Hub” in Memphis,

Tennessee, similarly utilizes three hundred miles of conveyor belts

to process 3.3 million packages a day. See FedEx Newsroom,

World Hub, at http://news.van.fedex.com/taxonomy/term/ 1056.

DHL’s U.S. hub, with 7,000 employees supporting 115 aircraft, is

in Wilmington, Ohio. See Deutsche Post World Net, Cleared for

Take-Off, at http://www.dpwn.de/dpwn?skin=hi&check=yes&lang

=de_EN&xmlFile=2007711.

12

State laws such as the Maine Tobacco Delivery Law

threaten to disrupt this uniformity by imposing on carriers

delivery requirements and policing and investigative respon-

sibilities that vary from State to State. For example, while

Maine statutes apply to all tobacco products, laws in Alaska,

Connecticut, Louisiana, New York, Texas, Virginia, and

Washington apply to cigarettes only."

The diversity of state-law signature and identification-

check requirements are particularly burdensome for “national

and regional carriers attempting to conduct a standard way of

doing business” (H.R. CONF. REP. No. 103-677, supra, at 87).

The Maine Tobacco Delivery Law requires carriers (i) to

confirm that the purchaser and the addressee are one and the

same, (ii) to confirm that the purchaser/addressee is at least

eighteen years old, including checking government-issued

identification, and (iii) to obtain the purchaser/addressee’s

signature. 22 ME. REV. STAT. § 1553(C). In contrast, Ar-

zona and Indiana permit delivery to any adult designated by

the purchaser,'* Delaware and Oklahoma permit delivery to

any adult residing at the purchaser's address,'* and Nevada

and West Virginia permit any adult to accept delivery.'®

Finally, the Maine Tobacco Delivery Law obligates car-

riers to cross-reference all packages destined for delivery in

the State against a list of known unlicensed tobacco retailers

'S ALASKA STAT. § 43.50.105(c); CONN. GEN. STAT. § 12-285c;

LA. REV. STAT. ANN. §47:871-:878; N.Y. PUB. HEALTH LAW

§ 1399-11(2); Tex. HEALTH & SAFETY CODE ANN. § 161.451; VA.

CODE ANN. § 18.2-246.7; WASH. REV. CODE § 70.155.105(4)(b).

4 ARIZ. REV. STAT. § 42-3225(A)(2); IND. CODE ANN. § 24-3-

5-5(a)(1)(A).

'S 30 DEL. CODE ANN. § 5365(a2); 68 OKLA. STAT.

§ 317.4(A)(2){a).

‘© NEV. REV. STAT. § 202.24935(2), amended by 2007 Nev.

Laws ch. 434, § 42 (clerical amendment); W. VA. CODE ANN.

§ 16-9E-4(a)(2).

13

provided by the Maine Attorney General. 22 ME. REV. STAT.

§ 1555(D). The lists contains hundreds of web addresses,

e-mail addresses, physical addresses, names, and telephone

numbers of such unlicensed retailers.'’ Obligating carriers to

check all shippers against such a lengthy list, presumably

subject to continuous revision by the State, inevitably would

have a significant effect on carriers’ services “by forcing

[them] to change [their] uniform package-processing proce-

dures.” Pet. App. 28. Moreover, significant interference

with carriers’ uniform practices would, just as Congress

feared (see supra pages 6-7), increase costs and, by exten-

sion, increase the rates paid by consumers.

While the Maine Tobacco Delivery Law would thus sig-

nificantly affect carriers’ services and rates even in isolation,

its effects are only the tip of the iceberg under petitioner's

limited concept of FAAAA preemption. To begin with, un-

der petitioner's approach, every State could regulate tobacco

deliveries, each imposing a different checklist of delivery re-

quirements and distributing its own unique “do not ship” list.

Inconsistencies have already developed to some extent and

would certainly accelerate if this Court were to reverse the

decision below. Therefore, the effect of the Maine law must

be evaluated not only with regard to its direct consequences

but also by considering the likely impact if some or all other

States were to enact similar but varying regulatory regimes.'*

'7 See State of Maine, Office of the Atty. Gen., Tobacco Deliv-

ery Compliance Page, at _ http://www.maine.gov/ag/tobacco

/delivery_compliance.html (last visited October 9, 2007). Al-

though the Attorney General's website states that the list of unli-

censed retailers is “confidential,” citing 22 ME. REV. STAT. §

1555(D)1), the 36-page list is posted on its website.

‘8 See, e.g., Morales, 504 U.S. at 389 (“Since taxes and sur-

charges vary from State to State, the requirement that advertised

fares include those charges forces the airlines to create different

ads in each market."); cf. Healy v. The Beer Inst., 491 U.S. 324,

14

Moreover, the significant potential effect of numerous

and varying state tobacco delivery laws is still only a small

part of the story because there is no logical or statutory basis

for limiting petitioner's arguments to tobacco. Rather, peti-

tioner argues that the FAAAA contains an implied exception

authorizing States to regulate the devery of an undefined

category of “dangerous substances” so long as they are cap-

tioned as “public health laws.” Pet.’s Br. at, e.g., i, 2-3, 18,

22, 30, 34, 37, 42, 48. It is not unduly speculative to posit

that, if given the opportunity, at least some States (or even

individual cities) would ex this category to include CDs

or DVDs,'® video games,” unhealthy or politically incorrect

foods,”' books,” diet aids,” herbal remedies,” or even cloth-

336 (1989) (“[T]he practical effect of the statute must be evaluated

not only by considering the consequences of the statute itself, but

also by considering how the challenged statute may interact with

the legitimate regulatory regimes of other States and what effect

would arise if not one, but many or every, State adopted similar

legislation.’’).

' Cf., e.g., Tipper Gore Widens War on Rock, N.Y. TIMES, Jan.

4, 1988, at C18.

* Cf., e.g., Am. Amusement Mach. Ass'n v. Kendrick, 244 F.3d

572 (7th Cir. 2001) (invalidating an Indianapolis ordinance that

sought to limit the access of minors to video games that depict vio-

lence); Alex Pham, Video Games; Marathon Sessions Take Over

Players: Is That Sick?, L.A. TIMES, June 22, 2007, at Cl (noting

that some doctors are lobbying the American Medical Association

to designate “video game addiction” as a “formal medical condi-

tion’’).

*! Cf., e.g. John Stossel, Trans Fat Ban is “Nanny State” Intru-

sion, ABCNEWS.com, Dec. 6, 2006, at http://abcnews.go.com/

2020/story?id=27054 1 L&page=1; AP, Angry Chefs Cook Up Law-

suit Over Foie Gras Ban, Aug. 22, 2006, available at http://www.

msnbc.msn.com/id/ 1447297 1/.

2 Cf., e.g., Bd. of Educ., Isiand Trees Union Free Sch. Dist. No.

26 v. Pico, 457 U.S. 853, 856-58 (1982).

15

ing.” Indeed, in an attempt to police identity theft, a State

might exercise its “police power” to require carriers to check

identification for all consumer deliveries, deliver only to the

purchaser, and/or cross-check addresses against a list ot

known identity thieves. Given that petitioner’s theory logi-

cally would support all of these categories of regulation, their

potential effects must also be considered.

In short, if States are allowed to regulate the delivery of

anything they deem “dangerous” or “unhealthy,” varying

regulatory regimes imposing different delivery requirements

and “unlicensed retailer” lists for various products will

quickly create the sort of “patchwork” system the FAAAA

was intended to avoid.”” “The sheer diversity of [such] regu-

latory schemes [would once again become] a huge problem

> Cf., e.g., Mayo Clinic, Weight-Loss Pills: What Can Diet Aids

Do For You? (warming that some popular weight-loss pills “are

downright dangerous”), at http://www.mayoclinic.com/health/

weight-loss/HQO1 160.

* Cf., e.g., Justin Gillis, Herbal Remedies Turn Deadly for Pa-

tients, WASH. POST, Sept. 5, 2004, at AOI (“dangerous herbal

remedies can be hyped on the Internet’’).

* Cf, e.g., Greg Bluestein, Atlanta Baggy-Pants Ban Debate

Drags On, ABCNEWS.com, Aug. 22, 2007, available at

http://abcnews.go.com/US/wireStory?id=35349 17.

% Petitioner and his amici cite various existing state statutes that

they believe are not preempted by the FAAAA. Pet. Br. at nn.36-

37 and accompanying text; Br. of California et al. at 16 & nn.12-

17 and 18-19 & nn.18-24. Many of these statutes simply prohibit

the knowing transportation of one commodity or another and do

not include burdensome signature/identification requirements or

obligations to cross-reference packages against lengthy “unli-

censed retailer” lists. E.g., 17-A ME. REV. STAT. § 1001(1); N.Y.

AGRIC. & MKTS. LAW § 96-z-11; ARIZ. REV. STAT. ANN. § 13-

3502. Such statutes are therefore akin to the general prohibition on

“knowing transportation” upheld below and not at issue here. Pet.

App. 26.

16

for national and regional carriers attempting to conduct a

standard way of doing business.” H.R. CONF. REP. No. 103-

677, supra, at 87. Accordingly, in addition to expressly ref-

erencing carriers’ services, the Maine Tobacco Delivery

Law is preempted because it would have a “forbidden sig-

nificant effect upon fares.” Morales, 504 U.S. at 388.

IV. The Structure Of Federal Motor Carrier Regulation

As A Whole Confirms That There Is No “Dangerous

Substances” Exception To FAAAA Preemption.

Petitioner’s attempt to create an unenumerated “danger-

ous substances” exception to FAAAA preemption is also in-

consistent with the Act’s specifically enumerated exceptions

and the structure of federal motor carrier regulation as a

whole. The FAAAA specifically provides that it does not

preempt:

|i] the safety regulatory authority of a State with re-

spect to motor vehicles, [ii] the authority of a State

to impose highway route controls or limitations

based on the size or weight of the motor vehicle or

the hazardous nature of the cargo, or [iii] the author-

ity of a State to regulate motor carriers with regard

to minimum amounts of financial responsibility re-

lating to insurance requirements and self-insurance

authorization.

49 U.S.C. §§ 14501(c)(2)(A), 41713(b)(4)(B).

However, consistent with the underlying goal of facili-

tating interstate commerce and promoting efficiency through

uniformity, each of these “saved” areas is subject to a sepa-

rate federal regulatory scheme—each with its own preemp-

tive effect. For example, the Motor Carrier Safety Act of

1984, Pub. L. No. 98-554, tit. II, 98 Stat. 2832, provides for

review by the Secretary of Transportation (the “Secretary”)

of state laws and regulations concerning commercial motor

vehicle safety. 49 U.S.C. § 31141(a)-(b). The Secretary is

empowered to declare any such state law preempted if he de-

17

termines that it is more stringent than the federal law and has

“no safety benefit,” is “incompatible” with federal law, or

“would cause an unreasonable burden on interstate com-

merce.” Id. § 31141(c)(4).”” As this Court has recognized,

the power to review and preempt state safety laws “affords

the Secretary * * * a means to prevent the safety exception

[to FAAAA preemption] from overwhelming (Congress’s]

deregulatory purpose.” City of Columbus v. Ours Garage &

Wrecker Serv., Inc., 536 U.S. 424, 441 (2002). “Under this

authority, the Secretary can invalidate local safety regulations

upon finding that their content or multiplicity threatens to

clog the avenues of commerce.” Id. at 441-42.

With respect to highway route controls based on vehicle

size and weight, under the Surface Transportation Assistance

Act of 1982 (““STAA”), Pub. L. No. 97-424, 96 Stat. 2097

(1983), state law must conform to federal guidelines concern-

ing vehicle length (49 U.S.C. § 31111), vehicle width (id. §

31113), and vehicle weight (23 U.S.C. § 127). In addition,

States may not unreasonably limit the access of motor carri-

ers traveling on the federal highway system to off-highway

terminals; food, fuel, and rest facilities; and points of loading

and unloading. 49 U.S.C. § 31114. “One of the main pur-

poses of Congress in passing the STAA was to enhance in-

terstate commerce” and “improve the productivity of truckers

by establishing more uniform weight and length limits on

federal roads across the country.” Nat'l Freight, Inc. v. Lar-

27 — Additionally, the Surface Transportation Assistance Act of

1982, Pub. L. No. 97-424, §§ 401-404, 96 Stat. 2097, 2154-2157,

authorized the Motor Carrier Safety Assistance Program

(“MCSAP”). Under MCSAP, the Secretary is directed to prescribe

guidelines and standards “for ensuring compatibility of intrastate

commercial motor vehicle safety laws” with federal laws. 49

U.S.C. § 31104(h). Congress directed that the guidelines and stan-

dards shall be flexible, “while ensuring the degree of uniformity

that will not diminish transportation safety.” /d.

18

son, 760 F.2d 499, 506-07 (3d Cir. 1985); see also United

States v. Connecticut, 566 F. Supp. 571, 576 (D. Conn.)

(Cabranes, J.) (“[I}t is manifest that the STAA reflects a con-

gressional interest in establishing uniform regulations gov-

erning the size, weight, and arrangements of trucks used in

interstate commerce.”), aff'd mem., 742 F.2d 1443 (2d Cir.

1983), aff'd mem., 465 U.S. 1014 (1984).

State route controls based on the “hazardous nature of

* * * cargo” are also subject to a pre-existing federal regula-

tory scheme that promotes uniformity. The Hazardous Mate-

rials Transportation Uniform Safety Act of 1990

(“HMTUSA”), Pub. L. No. 101-615, 104 Stat. 3244 (1990),

authorizes the Secretary to establish standards and guidelines

for state laws governing the highway routing of hazardous

materials. 49 U.S.C. § 5112. Such laws can be enforced

only if they comply with the Secretary’s standards, and di-

rectly affected parties may apply to the Secretary for a de-

termination as to whether a state law is compliant or pre-

empted. /d. § 5125(c)-(d). Thus, yet again, “uniformity was

the linchpin in the design of the statute.” Colo. Pub. Utils.

Comm'n v. Harmon, 951 F.2d 1571, 1575 (10th Cir. 1991).”

With respect to the final exception to FAAAA preemp-

tion, Congress recently created the Uniform Carrier Registra-

tion System (“UCRS”) to act as a clearinghouse and deposi-

tory for, inter alia, proof of insurance and financial responsi-

bility so that interstate motor carrie.s would not be subject to

8 See also, e.g., HMTUSA, supra, § 2, 104 Stat. at 3245 (find-

ing that state and local laws were “creating the potential for * * *

confounding * * * carriers which attempt to comply with [their]

multiple and conflicting * * * requirements’); S. REP. NO. 93-1192

at 37 (1974) (noting that the prior version of the statute was in-

tended “to preclude a multiplicity of State and local regulations

and the potential for varying as well as conflicting regulations in

the area of hazardous materials transportation’).

19

the varying requirements of individual States.” The UCRS

replaces and improves upon the former “Single-State Regis-

tration System,” which required interstate motor carriers to

register with one State and provided that such “single State

registration” would be deemed to satisfy the registration re-

quirements of all other States (see Yellow Transp., Inc. v.

Michigan, 537 U.S. 36, 39 n.* (2002)).

Thus, in each case in which Congress specifically ex-

empted a category of state laws from FAAAA preemption, it

did so with the understanding that a separate federal statute

would act as a preemptive check on any burdensome state

regulation and thereby provide the necessary degree of uni-

formity. See, e.g., Ours Garage, 536 U.S. at 441. Moreover,

the comprehensive federal regulatory structure these statutes

create demonstrates an overriding federal policy of uniform,

national regulation of the industry. Even where States have

retained a role, they have done so within limits and subject to

federal preemption. There are no loose ends that would al-

low States to exercise unfettered regulatory discretion over

some aspect of the industry. Yet that is precisely what peti-

tioner seeks. Given that Congress expressly saved state laws

from FAAAA preemption only where another federal statute

already filled the preemptive void, it is simply implausible

that it sub silentio intended to save an undefined category of

“dangerous substances” laws without a similar federal back-

stop in place.

V. There Is No “Presumption Against Preemption”

When A State Attempts To Regulate In An Area

That Is Historically A Subject Of Federal Regulation.

Contrary to petitioner’s argument (Pet. Br. at 25), there

is no “presumption against preemption” when, as in this case,

2? The Uniform Carrier Registration Act of 2005 was part of the

Safe, Accountable, Flexible, Efficient Transportation Equity Act:

A Legacy for Users or “SAFETEA-LU.” See Pub. L. No. 109-59,

§§ 4301-08, 114 Stat. 1144, 1761-74 (2005).

20

“the State regulates in an area where there has been a history

of significant federal presence.” United States v. Locke, 529

U.S. 89, 108. In other words, when a State extends its “po-

lice power” into an area of traditional federal concern—

rather than vice versa—any such benefit of the doubt disap-

pears. That is precisely what occurred here: The trucking

industry has long been a subject of extensive federal regula-

tion, and the Maine Tobacco Law has ventured well beyond

the State’s core police power to directly regulate motor carri-

ers’ services and thereby disrupt federal regulatory policy.

Indeed, almost from its inception, the trucking industry

has been the subject of significant federal regulation. As in-

tra- and inter-city roads improved in the early 1900s, the

trucking industry became a viable competitor to the railroads.

See WILLIAM R. CHILDS, TRUCKING AND THE PUBLIC INTER-

EST: THE EMERGENCE OF FEDERAL REGULATION 1914-1940,

at 14 (1985). In order to fend off this competition, the rail-

roads successfully lobbied for state regulation of motor carri-

ers. See LAWRENCE S. ROTHENBERG, REGULATION, ORGANI-

ZATION, AND POLITICS: MOTOR FREIGHT POLICY AT THE IN-

TERSTATE COMMERCE COMMISSION 44 (1994); Thomas Gale

Moore, Unfinished Business in Motor Carrier Deregulation,

14 REGULATION No. 3 (1991), available at http://www.cato

.org/pubs/regulation/regv 14n3/reg14n3-moore.html. In a se-

ries of cases in the mid-1920s, however, this Court held that

state regulation of interstate motor carriers beyond general

and reasonable highway safety legislation was “forbidden by

the commerce clause.” Buck v. Kuykendall, 267 U.S. 307,

316 (1925); accord, e.g., Mich. Pub. Utils. Comm'n v. Duke,

266 U.S. 570, 576-78 (1925); George W. Bush & Sons Co. v.

Maloy, 267 U.S. 317, 324-25 (1925).

In an attempt to fill the gap created by this Court’s in-

validation of state regulations of interstate carriers, the first

proposal in Congress for federal motor carrier regulation was

introduced in 1925. See ROTHENBERG, supra, at 45. Federal

regulation first began to take hold with the passage of the Na-

21

tional Industrial Recovery Act, Pub. L. No. 73-67, 48 Stat.

195 (1933), and a brief period of federally sponsored self-

regulation under the auspices of the National Recovery Ad-

ministration. However, self-regulation proved generally un-

workable and ultimately was held unconstitutional by this

Court. See A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935).

Finally, these events led to passage of the Motor Carrier

Act of 1935 (the “1935 Act”), Pub. L. No. 74-255, 49 Stat.

543 (1935). The 1935 Act brought about comprehensive fed-

eral regulation of the motor carrier industry by giving the In-

terstate Commerce Commission broad regulatory control

over, among other things, motor carrier rates, routes, and ser-

vices. This comprehensive regulatory scheme remained vir-

tually unchanged until Congress began deregulating the in-

dustry with passage of the Motor Carrier Act of 1980. See

Part I, supra.

Against this backdrop, petitioner tries to back away from

this realm “of significant federal presence” (Locke, 529 U.S.

at 108) by casting the challenged provisions of the Maine

Tobacco Delivery Law as mere “public health” measures, not

motor carrier regulations. But whatever their purpose, the

undeniable subject of these provisions is the delivery of

packages by motor carriers covered by the FAAAA. See

generally Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S.

88, 105-07 (1992). The remainder of Maine's statutory

framework for addressing the issue of smoking 1s not being

challenged. Rather, the challenge is limited to those provi-

sions of the law that relate directly to carriers’ operations,

services, and deliveries. These provisions are not immunized

from preemption simply because they were enacted together

with others that have nothing to do with carriers.

Moreover, invoking an artificial interpretive presump-

tion is unnecessary and unhelpful in a case such as this,

which does not turn on notions of obstacle preemption or

conflict preemption. Congress not only made clear that state

22

laws relating to carriers’ rates, routes, and services are pre-

empted but also incorporated by reference specific case law

from this Court. Given that Congress’s intent to preempt

state law is clear, there is simply no basis for giving the

FAAAA an artificially narrow reading. Rather, because the

Supremacy Clause provides that federal law “shall be the su-

preme Law of the land, * * * any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding” (U.S.

CONST. art. IV, cl. 2), the FAAAA’s express preemption pro-

visions should be given their natural meaning, and state laws

“to the Contrary” should be disregarded, as the Constitution

requires. See Caleb Nelson, Preemption, 86 VA. L. REV.

225, 234-46, 254-60, 290-303 (2002).

VI. Congress Has Not Endorsed Or Approved The

Maine Tobacco Delivery Law.

Petitioner also argues that the Synar Amendment, Pub.

L. No. 102-321, tit. I, § 202, 106 Stat. 323, 394 (1992), au-

thorizes the Maine Tobacco Delivery Law. See Pet.’s Br. 3-

4, 19, 37-40. Neither the Synar Amendment nor its imple-

menting regulations, however, have anything to say on the

subject of motor carrier regulation or regulation of internet

sales of tobacco. See 42 U.S.C. 300x-26; 45 C.F.R. §

96.130. Indeed, they do not confer any new power on the

States but rather simply offer federal funds in return for en-

acting and enforcing youth smoking laws and achieving cer-

tain benchmarks. Moreover, nothing in the federal grant

program implies that state laws are saved from preemption

under other federal statutes simply because they are enacted

in pursuit of federal funds. Petitioner's argument that the

Maine Tobacco Delivery Law and the HHS grant program

share a “common purpose” (Pet.’s Br. at 25) thus ignores the

fact that the Maine law is at cross-purposes with the

FAAAA. Put simply, the State is not free to ignore federal

law simply because it is pursuing some other objective that

the federal government generally supports.

23

Congress is certainly aware of the issues that the Maine

Tobacco Delivery Law seeks to address. For example, the

Tobacco Free Internet for Kids Act of 2003 (H.R. 3047), the

Internet Tobacco Sales Enforcement Act (H.R. 2824), and

the Prevent All Cigarette Trafficking Act (“PACT Act”) (S.

1177) were all introduced during the 108th Congress. The

PACT Act was reintroduced in the 109th Congress (S. 3810)

and is currently pending in the 110th Congress (S. 1027).

Although none of these bills has yet become law, their intro-

duction confirms that Congress can regulate in this area

should it deem it appropriate to do so. And, more important,

only Congress can regulate in a manner that ensures that any

new obligations imposed on the motor carrier industry are

consistent with the whole of federal motor carrier regulation

and are uniform nationwide.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

ROBERT DIGGES, JR. EVAN M. TAGER

ATA Litigation Center Counsel of Record

950 N. Glebe Road, Suite210 JACK L. WILSON

Arlington, VA 22203-4181 Mayer Brown LLP

(703) 838-1865 1909 K Street, NW

ROBIN S. CONRAD Washington, DC 20006

AMAR D., SARWAL (202) 263-3000

National Chamber

Litigation Center, Inc.

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

OCTOBER 2007