Supplemental Brief — Air Conditioning & Refrigeration Institute v. Energy Resources Conservation & Development Commission

does not squarely conflict with a “sole{]" holding of this

Court or another court of appeals. U.S. Br. 17. Its use of the

qualifier “solely” presumably is meant to account for the fact

that this Court has indeed “declined to apply a presumption

against preemption ... on the ground that the relevant sphere

of conduct had not traditionally been regulated by the States.”

U.S. Br. 17; see Pet. 14-15 (discussing, among others, Buck-

man Co. ¥. Plaintiffs Legal Comm., 531 U.S. 341, 347-48

(2001)).

The government further argues that there is no conflict

among the circuits. This is not so. At an absolute minimum,

the decision of the First Circuit in UPS, Inc. v. Flores-

Galarza conflicts squarely with the decision in this case, as

well as decisions of the Fourth and Seventh Circuits stating

that the presumption against preemption always applics.

Compare 318 F.3d 323, 336 (Ist Cir. 2003) (the presumption

“only arises ... if Congress legislates in a field traditionally

occupied by the states” (emphasis added)), with Frank Bros.,

Inc. v. Wisconsin Dep't of Transp., 409 F.3d 880, 885 (7th

Cir. 2005) (“we presume that, in all circumstances, ‘Congress

does not intend to supplant state law’” (emphasis added)), and

Pinney v. Nokia, Inc., 402 F.3d 430, 453 (4th Cir.), cert. de-

nied, 126 S. Ct. 551, 552 (2005) (Nos. 05-198, 05-207); see

Pet. 16-17 (discussing same). The government dismisses the

clear statement in U/’S as “dictum,” U.S. Br. 19 n.7, but it is

nothing of the sort--this was the First Circuit's clear state-

ment of the governing principle, it was unequivocal, and it

remains the law of the First Circuit. 318 F.3d at 336. The

government does not even cite, much less address, Frank

Brothers and Pinney.

The remainder of the government's argument depends upon

giving the case law an unduly narrow reading. But even pars-

ing the cases as finely as the government does. its argument

fails. It seeks to divide the cases into two categories: those

holding that the presumption doves apply when there is a his-

tory of state regulation, and those holding that it does not ap-

9

ply when there is a history of federa/ regulation. Thus, it

suggests, this case falls into an intermediate category—with

no history of federal or state regulation —that it says neither

the court below nor other courts have addressed. U.S. Br. 18-

19 & nn.5-6. This is not so. The all-or-nothing cases cited

above, and largely ignored by the government, would apply

equally to this supposed intermediate zone. Other cases like-

wise do not fall into the neat dichotomy the government pos-

its. Eg. Public Util. Dist. No. 1 v. Odacorp Inc., 379 F 34

641, 648 n.7 (9th Cir. 2004) (“We apply a presumption

against federal preemption unless the state attempts to regu-

late an area in which there is a history of significant federal

regulation.””).

In any event, the decision below does place this case into

one of the two categories the government intuits—it treats

this as a case with no history of federal regulation, for it

would not have applied the presumption if there were such a

history. Pet. App. 4a n.1. The Ninth Circuit would find a his-

tory of federal regulation in a New Deal-era statute. /d. (cit-

ing Ting v. ATAT, 319 F.3d 1125, 1136 (9th Cir. 2003),

which relied upon the Federal Communications Act of

1934)). But the line drawn by this case and Jing conflicts

directly with cases holding that a shorter history suffices to

defeat the presumption, as well as cases that require a longer

history of federal regulation. The First Circuit has held that a

federal statute more recent than EPCA—the Federal Aviation

Administration Authorization Act of 1994-—sufficed to dem-

onstrate a history of federal regulation that defeated applica-

tion of the presumption. L/7/’S, 318 F.3d at 336. By contrast,

the California Supreme Court has held that even federal regu-

lation since 1935 is not enough; “federal activity” must be

“manifest since the beginning of our Republic.” Bronco

Wine Co. v. Jolly, 95 P.3d 422, 441 n.42 (Cal. 2004), cert.

denied, 125 8. Ct. 1646 (2005), see also Pinney, 402 F.3d at

454 n.4 (“there 1s not the same federal presence in the wire-

10

less teclecommunications area as there is in the area of mari-

time commerce” at issue in Locke).

Most importantly, it remains abundantly clear that the

Ninth Circuit's formulation of the presumption against pre-

emption, and the repeated “narrow interpretations” that fol-

lowed from its application of the presumption, drove the re-

sult in this case. The government offers only the most timid

suggestion to the contrary, U.S. Br. 15, and instead relies

upon its own statutory analysis. That analysis is wrong, for

all of the reasons set forth above, and so what remains is the

badly distorted statutory analysis sect forth by the Ninth Cir-

cuit. Given the importance of this issue, both to the national

regulatory scheme that Congress enacted and to the regulated

industries governed by that scheme, it plainly merits this

Court's review.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of Certio-

rari should be granted.

STEPHEN R. YUREK

GENERAL COUNSEL

VICE PRESIDENT, Poticy &

PUBLIC AFFAIRS

AIR-CONDITIONING &

REFRIGERATION INSTITUTE

4100 North Fairfax Drive

Suite 200

Arlington, VA 22203

(703) 524-8800

JOSEPH M. MATTINGLY

VICE PRESIDENT,

SECRETARY AND GENERAL

COUNSEL

GAS APPLIANCE

MANUFACTURERS

ASSOCIATION, INC.

1207 Wilson Bivd, Ste. 600

Arlington, VA 22201

(703) 525-7060

CLARK REID SILCOX

COUNSEL

NATIONAL ELEC TRICAI

MANUFACTURERS

ASSOCIATION

1300 N. 17th St., Ste. 1847

Rosslyn, VA 22209

(703) 841-3200

Respectfully suomit(ed,

CARTER G. PHILLIPS*

Joseru R. GUERRA

Eric A. SHUMSKY

SIDLLY AUSTIN Brown &

Woop LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

CHARLES A. SAMUELS

GENERAL COUNSFI

ASSOCIATION OF HOME

APPLIANCE MANUFACTURERS

MINTZ LEVIN COHN FERRIS

GLovsKy & Porto PC

701 Pennsylvania Ave., N.W.

Washington, D.C. 20004

(202) 434-7300

JOUN A. HODGES

Bruce L. MCDONALD

Peter J. RieuM

WILEY REIN & FIELDING LLP

1776 K Street, N.W.

Washington, D.C. 20006

(202) 719-7000

Counsel for Petitioners

May 26, 2006

* Counsel of Record

OCT 25 2005

‘

ifs

No. 05-331 3 Rien”

IN THE

Supreme Court of the United States

AIR CONDITIONING & REFRIGERATION INSTITUTE ef al.,

Petitioners,

Vv.

ENERGY RESOURCES CONSERVATION AND

DEVELOPMENT COMMISSION ef ai.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

REPLY BRIEF

CARTER G. PHILLIPS*

JOSEPH R. GUERRA

Eric A. SHUMSKY

SIDLEY AUSTIN BROWN &

WOOD LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

Counsel for Petitioners

October 25, 2005 * Counsel of Record

{Additional Counsel Listed on Inside Cover]

Sat SARA ARC I Psa Sa ONE TR ARE i ES ORL COBEN RES

WILSON-EPES PrinTING Co.. INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

STEPHEN R. YUREK JosePpH M. MATTINGLY

GENERAL COUNSEL VICE PRESIDENT, SECRETARY

VICE PRESIDENT, POLIcy & AND GENERAL COUNSEL

PUBLIC AFFAIRS GAS APPLIANCE

AIR-CONDITIONING & MANUFACTURERS

REFRIGERATION INSTITUTE ASSOCIATION, INC.

4100 North Fairfax Drive 1207 Wilson Blvd

Suite 200 Suite 600

Arlington, VA 22203 Arlington, VA 22201

(703) 524-8800 (703) 525-7060

CHARLES A. SAMUELS CLARK REID SILCOX

GENERAL COUNSEL COUNSEL

ASSOCIATION OF HOME NATIONAL ELECTRICAL

APPLIANCE MANUFACTURERS MANUFACTURERS

MINTZ LEVIN COHN FERRIS ASSOCIATION

GLOVSKY & Popeo PC 1300 North 17th Street

701 Pennsylvania Avenue, Suite 1847

N.W. Rosslyn, VA 22209

Washington, D.C. 20004 (703) 841-3200

(202) 434-7300

JOHN A. HODGES

Bruce L. MCDONALD

PETER J. RIEHM

WILEY REIN & FIELDING LLP

1776 K Street, N.W.

Washington, D.C. 20006

(202) 719-7000

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........:.cc:ccosscesssesssesesessveesveee ii

A gate set Sala wee eA leet 6 I

I. THE DECISION BELOW CONFLICTS WITH

BINDING PRECEDENT OF THIS COURT ON

AN IMPORTANT QUESTION OF FEDERAL

Il. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF THIS COURT AND OTHER

COURTS OF APPEALS REGARDING THE

“PRESUMPTION AGAINST PREEMPTION” ..... a

Ill. THE DECISION BELOW WAS MISTAKEN,

AND THREATENS SERIOUS CONSE-

QUENCES TO IMPORTANT FEDERAL IN-

CFSE Ee Docecunsecssersemnssenpesesevinannasetnmeeremmenennascenaeniings 19

(1)

TABLE OF AUTHORITIES

CASES Page

Aetna Health Inc. v. Davila, 542 U.S. 200

Inds sidinasiatiteeiaibndendeseepebibadeaetdniihoodstababinnecieds 3

Barbier v. Connolly, 113 U.S. 27 (1884) ...........0000 7

Bates v. Dow Agrosciences LLC, 125 S. Ct. 1788

ee ctnicaniithanabttidnnibarentuasintsiateintnntneteeniioon 3,7

Buckman v. Plaintijjs’ Legal Comm., 531 U.S.

OE i i 7

Engine Mfrs. Ass'n v. South Coast Air Quality

Mgmt. Dist., 541 U.S. 246 (2004)........ccccccceeeeeees i,2

Frank Bros., Inc. vy. Wisconsin Dep't of Transp.,

409 F.3d 880 (7th Cir. 2005) ......ccccccccereeecereeereres 5

Medtronic, Inc. vy. Lohr, 518 U.S. 470 (1996)......... 6

Mid-Con Freight Sys., Inc. v. Michigan Pub.

Serv. Comm'n, 125 S. Ct. 2427 (2005)......-.000000 3

Nixon vy. Missouri Mun. League, 541 U.S. 125

CESS SRE AT CLR ee Bee 3

Puerto Rico Dep't of Consumer Affairs v. Isla Pe-

troleum Corp., 485 U.S. 495 (1988) ........ccccccceeee 10

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

Sy idediie etlstihinetenbettslnienibaledealadiblomezeinitpiae 6

UPS, Inc. v. Flores-Galarza, 318 F.3d 323 (\st

GR ee cntisiatidh ctiencecitititecicaenitiscachinthtiripsninstabaneinioe 5

United States v. Locke, 529 U.S. 89 (2000) ............. 6,7

STATUTES

Ee Sahat OED scrivnsecisciciesintinntappiolcochdapinpinapeuanttontes 8

SER eee 2, 8,9

RULE

Sa ie Wee intaceetntn spbiensticctbesinstenicunnseeioneistias l

iii

TABLE OF AUTHORITIES—continued

SCHOLARLY AUTHORITIES Page

Caleb Nelson, Preemption, 86 Va. L. Rev. 225

Cee iinksgdiitcnemidninlgbihedavienisivtonden ttaaas 5

Viet D. Dinh, Reassessing the Law of Preemp-

tion, 88 Geo. L.J. 2085 (2000) ........cccecccseseeeeeceees 5

REPLY BRIEF

In the decision below, the Ninth Circuit distorted a federal

statutory scheme because it found the State's regulatory ap-

proach to be “laudable,” a proposition unsupported by any

record evidence. This method of statutory interpretation, ob-

jectionable in and of itself, flies in the face of this Court's de-

cision just two Terms ago to vacate a similar Ninth Circuit

decision, which likewise interpreted a federal preemption pro-

vision in a limited, atextual fashion to uphold a state statute

that the Ninth Circuit deemed praiseworthy. See Engine

Mfrs. Ass'n v. South Coast Air Quality Mgmt. Dist., 541 U.S.

246 (2004) (“EM 1"). This alone merits certiorari. See Sup.

Ct. R. 10(c) (review is warranted when a lower court “decided

an important federal question in a way that conflicts with rele-

vant decisions of this Court”).

Moreover, in the course of ignoring this Court's recent

precedent, the decision below exacerbated a circuit split over

the proper application of the “presumption against preemp-

tion.” Respondent CEC all but concedes the existence of this

conflict, answering only that the conflict is not acknowledged,

and that it can be written off as merely loose language em-

ployed by some courts of appeals. The former contention is

quite beside the point, and the latter simply is not true. The

lower courts are in disarray over the proper application of the

presumption against preemption, and the conflict on this issue

is beyond question. This Court's review is necessary to bring

clarity to this recurring issue that arises in a badly confused

area of law under the Supremacy Clause.

I. THE DECISION BELOW CONFLICTS WITH

BINDING PRECEDENT OF THIS COURT ON AN

IMPORTANT QUESTION OF FEDERAL LAW.

The Petition demonstrates that the decision below stands

squarely in conflict with EMA. Pet. 11-14. In EMA, this

Court analyzed an express preemption provision of the Clean

Air Act “which prohibits the adoption or attempted enforce-

2

ment of any state or local ‘standard relating to the control of

emissions from new motor vehicles or new motor vehicle en-

gines."”” 541 U.S. at 251. At the center of this Court’s deci-

sion was its interpretation of the statutory term “standard.”

Adopting an approach designed to preserve state law at all

costs, the Ninth Circuit held that the generic term “standard”

did not include “standards imposed through purchase restric-

tions.” Jd. at 256. This Court rejected that limiting interpre-

tation because the language of the statute “is categorical.” /d.

Here, too, the Ninth Circuit sought to circumvent the “cate-

gorical” language of the statute. In sweeping language, the

Energy Policy and Conservation Act preempts “any State

regulation [that] provides at any time for the disclosure of in-

formation with respect to any measure of energy consump-

tion.” 42 U.S.C. § 6297(a) (emphases added). Rather than

interpret the term “disclosure” by its terms, however, the

Ninth Circuit applied a “narrow interpretation,” see Pet. App.

7a, to conclude that the term means “labeling directed to con-

sumers at point of sale or use,” id. at 8a. In both this case and

in EMA, the Ninth Circuit imposed an atextual limitation on

statutory text. Certiorari is warranted, just as in EMA, to re-

verse the Ninth Circuit's erroneous interpretation of an impor-

tant federal statute. Indeed, review is nore important here

than it was in EMA, so that this Court can reaffirm the valid-

ity of its own recent precedent that the Ninth Circuit casually

cast aside. See id. at 22a (Noonan, J., dissenting).

It is telling that the CEC has almost nothing to say about

EMA, other than to argue that this case involves “a different

statute.” Opp. ||. It should hardly require explanation that,

although the two cases interpret different statutes, they con-

cern the same /ega/ rule—namely, that lower courts should

not distort the text of federal statutes in an effort to preserve

from preemption state statutes that they find “laudable.” The

Ninth Circuit took that approach in EMA, and this Court re-

3

versed. Ti.2 Ninth Circuit followed precisely that course

again here, and this Court again should reverse.

For the same reason, the CEC is mistaken to argue that

there is no important issue of federal law at stake. Opp. 4. It

is of course true, as CEC argues, that at its narrowest this case

involves the interpretation of a preemption provision in one

federal statute. /d. But this is true of every case involving

express preemption under the Supremacy Clause, and it has

been no barrier to this Court’s granting review to interpret

numerous statutory preemption clauses— including four in the

last two Terms alone.’

This is for good reason. Whether a court may impose a

crabbed, atextual interpretation on a statutory preemption

provision is a question of surpassing national importance and

federal concern. It has substantial implications for the legisla-

tive process. If courts may do what the Ninth Circuit did

here, then the legislative bargains that lie at the heart of com-

plex regulatory statutes will be undercut, leading to uncer-

tainty .n the legislative process, and placing entities regulated

at the federal level unsure as to what rules to follow. Preemp-

tion provisions are often enacted to ensure that, when an in-

dustry is subjected to additional regulatory burdens at the fed-

eral law, it can count on uniform regulation. But if the guai-

antee of uniformity is meaningless—as it is following deci-

sions like the Ninth Circuit’s in EMA and this case—then the

' The CEC also argues that EMA presented a better case for review be-

cause it involved a circuit split over the interpretation of a particular stat-

ute. Opp. 1. To the contrary, this is the more compelling case for certio-

rari. In addition to its conflict with EMA, the decision below involves a

well-established conflict over a fundamentz! legal principle —the proper

application of the presumption against preemption—that affects not just a

single statute, but potentially governs the preemptive effect of every fed-

eral statute. See Pet. 14-21; infra Section Il.

? See Mid-Con Freight Sys., Inc. v. Michigan Pub. Serv. Comm'n, 125

S. Ct. 2427 (2005), Bates v. Dow Agrosciences LLC, 125 S. Ct. 1788

(2005), Aetna Health Inc. v. Davila, 542 U.S. 200 (2004); EMA, 541 U.S.

246 (2004); Nixon v. Missouri Mun. League, 54\ U.S. 125 (2004).

4

legislative deal is undone, thereby creating great uncertainty

and imposing tremendous costs on interstate businesses. See

Pet. 23-24 & nn.14-17; Br. for Alliance of Automobile Mfrs.

et al. as Amici Curiae (“AAM Br.”), at 12-16. These are in-

deed important questions of federal law, and they merit this

Court’s review,

Il. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF THIS COURT AND OTHER

COURTS OF APPEALS REGARDING THE “PRE-

SUMPTION AGAINST PREEMPTION.”

The Petition further demonstrates that there is a well-

developed conflict among the courts of appeals concerning

the proper formulation of the “presumption against preemp-

tion.” Pet. 16-17. At least cight circuits have weighed in, and

they are badly divided. The First, Second, Eighth, Eleventh

and D.C. Circuits hold that the presumption only applies

when the federal preemption provision concerns a field of

significant or “traditional” state regulation. /d. at 16 (citing

cases). This formulation is consistent with this Court's prior

decisions. /d. at 14-15. In direct conflict, the Fourth, Seventh

and Ninth Circuits a/ways apply the presumption. /d. at 16-

17. Given the breadth and maturity of this conflict-—and par-

ticularly in light of the innumerable federal preemption provi-

sions that are necessarily affected by the presumption—this

important issue of federal law warrants review.

The CEC’s inability to muster a substantive argument why

this conflict is unworthy of certiorari only confirms that cer-

tiorari is appropriate. The CEC secks to cast aside the circuit

split, chalking it up to “incidental differences in wording”

among the circuits. Opp. at 6. But it offers no analysis to

substantiate this assertion—no showing that the conflict is

illusory, or inat the cases actually employ the same legal rule.

That is no mere oversight: Even the most cursory review re-

veals that the lower courts have announced flatly inconsistent

rules. The First Circuit, for instance, in UPS, Inc. v. Flores-

Galarza, declined to apply the presumption because it “only

5

arises ... if Congress legislates in a field traditionally occu-

pied by the states.” 318 F.3d 323, 336 (Ist Cir. 2003) (em-

phasis added). The Seventh Circuit, by contrast, has reasoned

that the presumption applies “in ail circumstances.” Frank

Bros., Inc. v. Wisconsin Dep't of Transp., 409 F.3d 880, 885

(7th Cir. 2005) (emphasis added). The problem is not that the

courts of appeals are failing to use “the exact same words,”

Opp. 6; it is that they are not using the same principle.

The conflict over this principle, moreover, is an extremely

important one. Prominent commentators repeatedly have

criticized the lack of clarity surrounding the presumption

against preemption. See, e.g, Viet D. Dinh, Reassessing the

Law of Preemption, 88 Geo. L.J. 2085, 2086 (2000), Caleb

Nelson, Preemption, 86 Va. L. Rev. 225, 298-303 (2000).

And, others have indeed “supposed,” cf. Opp. 7, that this case

merits this Court's review—in fact, this petition is not even

the only one currently pending before the Court that presents

this precise issue. See Petition for Writ of Certiorari at 25-26

& n.6, Nokia, Inc. v. Naquin, No. 05-198 (filed Aug. 10,

2005). The briefs filed in that case further demonstrate the

intractable confusion surrounding the application of the pre-

sumption. :here are conflicts over numerous aspects of when

the presumption arises and how it should be applied. For in-

stance, there is genuine disarray as to what federal presence in

a field is sufficient to overcome the presumption when it oth-

erwise would apply, and disagreement about how to define

the relevant domains of state and federal regulation in decid-

ing whether cither has significantly, traditionally or histori-

cally regulated a field. See Br. of Product Liability Advisory

Council, Inc. as Amicus Curiae at 6-13, Nokia, Inc. v. Naquin,

No. 05-198 (filed Sept. 30, 2005).’

‘ Because Nokia relates to conflict preemption (rather than express pre-

emption) and has an overlay of regulatory preemption, it would be appro-

priace to grant certioran in both Nokia and this case. At a minimum, how-

ever, if certiorari is granted in Nokia, this petition should be held pending

resolution of that case.

6

Ill. THE DECISION BELOW WAS MISTAKEN, AND

THREATENS SERIOUS CONSEQUENCES TO

IMPORTANT FEDERAL INTERESTS.

Finally, the Petition demonstrates that the decision below

was wrong, and that the Ninth Circuit's error threatens severe

consequences for the companies regulated by the California

regime, and for national industries that depend on consistent

enforcement of federa! preemption provisions. Pet. 17-25;

see also AAM Br. at 12-16. In response, the CEC argues that

the Ninth Circuit correctly articulated the presumption against

preemption, and correctly applied it to the California statute.

The former contention is mistaken; the latter is largely beside

the point at this stage, but in any event is also incorrect.

1. The CEC intimates that the Ninth Circuit was correct

that the presumption against preemption always applies. It

argues that the decision below “did no more than apply this

Court’s admonition that *|c}onsideration under the Supremacy

Clause starts with the basic assumption that Congress did not

intend to displace state law." Opp. 7 (alteration in original;

emphasis omitted) (quoting Maryland v. Louisiana, 451 U.S.

725, 746 (1981)). The Ninth Circuit, however, aid not even

cite Maryland v. Louisiana, and the CEC misinterprets that

case in any event. The CEC relies on a portion of Maryland

in which the Court interpreted Rice v. Santa Fe Elevator

Corp., 331 U.S. 218 (1947), and this Court already has ex-

plained that Rice “does not support the scope given to it” by

the CEC, and that the presumption applies only when Con-

gress legislates “‘in a field which the States have traditionally

occupied."” United States v. Locke, 529 U.S. 89, 107-08

(2000) (quoting Rice, 331 U.S. at 230). Locke interprets in

similar fashion Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)

(which the decision below did actually cite, Pet. App. 4a).

See Locke, 529 U.S. at 108. In short, the Ninth Circuit indeed

got it wrong, and the CEC now does the same.

Nor is the decision below correct because the California

regulations fall within the State's police powers. Opp. 7. The

7

implication—although the CEC fails to explain it—is that the

presumption applies whenever a State acts pursuant to its po-

lice powers. That is not the law. The presumption applies

when there is a “significant” history of state regulation, or the

dispute arises in “‘a field which the States have traditionally

occupied."” Buckman v. Plaintiffs’ Legal Comm., 531 U.S.

341, 347 (2001); see Bates v. Dow Agrosciences LLC, 125 S.

Ct. 1788, 1801 (2005) (“In areas of traditional state regula-

tion, we assume that a federal statute has not supplanted state

law ....""). It applies to areas in which the States actually have

traditionally regulated, and the disclosure of energy appliance

information is not such an area.

Contrary to the rule the CEC advances, this Court has re-

jected application of the presumption when a State plainly

was acting pursuant to its police powers. In Buckman, for

instance, the Court held that a claim of fraud——which unques-

tionably involves a State’s general police powers—was not

protected by the presumption against preemption because the

variety of fraud alleged (fraud on a federal government

agency) was not “‘a field which the States have traditionally

occupied.”” 531 U.S. at 347. The rule that the CEC proposes

would prove far too much—nearly all state regulation is pur-

suant to the States’ police powers, see Barbier v. Connolly,

113 U.S. 27, 31 (1884), and all state regulation can be charac-

terized as such. The CEC’s proposed rule is limitless.

Even were the CEC correct that some of this Court’s prece-

dents stand for the view that the presumption against preemp-

tion always applies, then that simply would mean that this

Court’s own decisions conce”’ ‘g the presumption are incon-

sistent. Some (like Locke, » ine cases cited in the Petition

at 14-15) stand for the pro . sition that the presumption ap-

plies only “‘in a field which ‘he States have traditionally oc-

cupied,”” Locke, 529 U.S. at 108, and others (like Maryland

and Medtronic, if the CEC is correct) would mean that the

presumption always applies. If the CEC is correct that a con-