That hasn’t stopped the oil industry from complaining, of course, stating that CARB is “moving too fast.” When will it not be moving too fast? When the Gulf Coast is underwater?

I expect that there will be lawsuits, but at first blush, pre-emption does not seem to be a problem: the Clean Air Act does forbid states from enacting more stringent fuel standards than the federal government, but section 211(c)(1)(B) specifically exempts California from this provision, for the sensible reason that California can create its own auto standards.

Right now, I’m just waiting for Dick Cheney to claim that secret documents demonstrate that high-carbon fuel helps prevent terror attacks.

UPDATE: Just saw Ann’s post on the California waiver.  I’m not sure about the inner workings of the administration, but it seems to me that California will still get the waiver.  From an administrative law perspective, you could argue that the administration didn’t simply overturn the Bush decision, because that overturning would still be subject to judicial review under an arbitrary-and-capricious standard.  So what you would rather do is simply order a reconsideration, and have EPA do it through the normal process.

In a letter sent Tuesday to Peter Orszag, the incoming Office of Management and Budget director, and Cass Sunstein, who is expected to serve as Obama’s regulatory czar, Public Citizen reiterates its request that President-elect Obama make the health and safety of American families the underlying goal of all federal regulations.

The new president can take an important step in this direction by amending a key executive order to reverse the erosion of consumer rights that occurred under the Bush administration. Public Citizen, which was joined by other public interest groups, outlined in a letter sent to the transition team last month how the order could be drafted.

Specifically, the order should prohibit the abusive practice of inserting language in the preambles of or in federal regulations for the purpose of immunizing manufacturers from liability for injuries caused by faulty products. Through these preambles, the Bush administration has been attempting to block consumers from holding manufacturers accountable for harm caused by hazardous drugs, medical devices, motor vehicles and other products.

Under the Bush pre-emption doctrine, if a federal rule provides just a minimum floor of protection –for example, ensuring simply that a new drug isn’t snake oil – then the manufacturer should be immune from all liability for harm the product causes, no matter how negligent or irresponsible the company was in designing, testing, labeling or marketing the product.

In a despicable abuse of its authority, the Bush administration in its last days continued to issue new regulations that contain these anti-consumer preambles – a last hurrah for an administration that did everything it could to enrich its friends in corporate America.

Public Citizen has fought against this campaign to pre-empt consumer and state rights at every level. We have opposed harmful regulations at the administrative level,and we have filed numerous petitions for reconsideration of rules issued by the Bush administration containing immunity clauses to stop them from taking effect until the new administration can review them. We have backed legislation in Congress that would restore consumer rights and argued against pre-emption all the way to the Supreme Court.

The ability to hold manufacturers responsible in court for their defective products is one of the greatest safeguards the public has to ensure quality and accountability in the marketplace.

In the coming months, Public Citizen attorneys will serve as lead counsel on a number of key cases involving pre-emption. For instance, we represent injured consumers against claims by generic drug manufacturers that they are entitled to special pre-emption protection. We also are involved in a series of cases in which food manufacturers assert that federal pre-emption immunizes them from claims that their product labels are false and misleading. And we are part of the team representing actor Dennis Quaid and his wife, whose infant twins almost died after being administered a mislabeled drug meant for adults. There, the drug’s manufacturer is claiming pre-emption simply because the product was approved for marketing by the federal government.

We will also lobby aggressively for the reintroduction and passage of the Medical Device Safety Act, which would overturn the 2008 Supreme Court decision in Riegel v. Medtronic. In that case, the U.S. Supreme court held that pre-market approval of a medical device by the Food and Drug Administration immunizes the manufacturer from tort liability. The decision deprives injured patients of any compensation for their injuries.

We have convened a group of leading public interest organizations to monitor and act on pre-emption issues before Congress and the executive branch.

We hope that President-elect Obama, who as a U.S. senator co-sponsored the Medical Device Safety Act, Professor Sunstein and Director Orszag will move quickly and urgently to undo the damage to consumer rights done by the current administration.

Bush administration officials, in their last weeks in office, are pushing to rewrite a wide array of federal rules with changes or additions that could block product-safety lawsuits by consumers and states.

The administration has written language aimed at pre-empting product-liability litigation into 50 rules governing everything from motorcycle brakes to pain medicine. The latest changes cap a multiyear effort that could be one of the administration’s lasting legacies, depending in part on how the underlying principle of pre-emption fares in a case the Supreme Court will hear next month.

Coincidently, the National Highway Traffic Safety Administration issued a new regulation today that seeks to immunize school bus manufacturers who comply with federal standards from liability for personal injury caused by faulty products.

Public Citizen attorneys have been out front on this issue, arguing against the concept of federal pre-emption in the courts, including the U.S. Supreme Court. Public Citizen President Joan Claybrook commented last week on the Bush attack on consumer rights.

How many times is NHTSA going to show its disdain for consumers? . . . The fear of lawsuits is one of the greatest incentives automakers have to build stronger and safer vehicles. For NHTSA to suggest that automakers should have blanket immunity from consumer liability lawsuits means that more defective vehicles will be manufactured, fewer will be recalled, the public will have less information about injury causation and more families will needlessly lose loved ones on our roads each day.

Les Weisbrod made a similar comment about the dangers of the administration’s actions in the Huffington Post:

We only need to look at the recent recalls of spinach, toys with lead, meat, pet food, and toothpaste to know the government alone cannot ensure all drugs, food, and other consumer products are safe. Preemption not only gives corporations an escape from misconduct, but takes away the incentive for manufacturers to compete with one another to make products safer.

Kia Franklin and Justinian Lane put up several great posts about pre-emption today at Tort Deform.

At any rate, I was recently going back through some books I read in college and came across Harvard Professor Joseph Nye’s “The Paradox of American Power.” A text which emerged almost in synch with 9-11, Nye argued that the Clinton years had left the United States with an unprecedented volume of what he called “soft power,” or the ability to guide, influence, and mold states and global opinion without the use of force.

The central tenet of Nye’s argument was that our unprecedented economic power, combined with a military whose technological and projection capabilities far exceeded those of any other nation, gave us the credibility to dramatically alter the scope of the world. How we used that power, Nye said, would determine if that power grew, or if that power would falter.

Unfortunately for the United States, and I would argue for much of the globe, the Bush-Cheney administration opted for a strategy that took nothing from Nye. Nor did it take anything from Kissinger, Clinton, Metternich, or even Machiavelli. From 2001-2008 the United States made a series of devastating policy decisions, both at home and abroad. The result? If a book like Nye’s came out today – just 7 years later – it would be looked at as either an example of either satire or insanity.

How did we get there? The answer, in my opinion, is complicated, but begins, to paraphrase James Carville, with the economy stupid. The Bush administration took office in a period where Americans were so used to growth and prosperity, and thirty years removed from any military engagement of significant length. You cannot blame the public for feeling as if Bush, or Gore, would have little overall impact.

It has been argued that some Clinton-era decisions paved the way for our current crisis, such as the inflation of tech stocks and the repeal of the glass-steagal act. But the fact remains that when George W Bush took office the United States enjoyed record economic growth and a budget surplus. We had weaknesses – increasing credit debt, decline in full-time employment with benefits, and an aging infrastructure. But given the state of the economy, Bush could easily move to fix them.

From that economy, it has become apparent, emerged all our other sources of power. Our economic strength enabled us to sustain a military budget higher than that of most other nations combined, and a standing army stationed farther abroad than ever the British empire or Roman legions. It enabled us to lend and collect, to maintain entitlements, and possibly pay our debts. The greatest problem, as Al Gore hinted at, was that the foundation of that economy and its global nature was inexpensive petroleum.

The Bush administration was given no mandate upon taking office – Bush actually lost the popular vote. His actions, however, clearly show a President who believed his views, and those of his advisors, were not only supported by a majority of the population but that they were in the economic and long-term interests OF that population.

Some of those actions included a massive tax cut that provided benefit mostly to the wealthiest group of salary-earners – I myself saw no appreciable decline in taxation, but my father did – and reduced the obligations of corporations to pay taxes – despite the fact that the government provided the security and system that allowed them to prosper. That tax cut effectively moved the United States annual budget from surplus to deficeit.

Other actions? While a “do nothing” congress (words of McCain campaign) moved slowly, Bush used political appointments and the rule-making system to dramatically revise corporate regulations on stock trades, mortgages, investment banking, reporting, and a full laundry list of other areas. The goal was to fulfill the prophecy of Grover Nordquist and other supply-siders (despite what his own father said about “voodoo economics) and eliminate the “big brother” from interfering in business. We all know how that turned out.

As tax revenue declined, the United States had to sell more bonds. Who bought those bonds? China. Estimates currently indicate that 1/3 of our national debt is in China, a nation where people save rather than spend. Bush never once asked Americans to put away their credit cards, open savings accounts, or avoid risky mortgages. The Chinese government simply bans them.

The long term impact of the Bush economic strategy was to diminish our soft power. Without a strong economy, the United States imported more than it exported, and saw a decline in real wages for most workers. Yet on its own, this would not have been devastating. The loss of soft power is also attributable to two other areas: a shift in our foreign policy, and a shift in the tone of our publicity and our President’s bully pulpit from hope to fear.

Even under Reagan, the United States foreign policy was based more on outreach and integration than isolation. From 1945 through 2001, the United States embarked on a number of unilateral or multi-lateral military actions – Grenada, Dominican Republic, Nicaragua, Panama, Libya, Kuwait, Somalia, Haiti, Bosnia, and Kosovo to name a few – yet each President maintained a clear focus on the broader interests of national security. Accuse Reagan of what you want, the fact remains that despite his “evil empire” speeches, the Reagan administration worked continuously on engaging the Soviet Union – see Strobe Talbott, Master of the Game for more details. Under Clinton, the process of interaction reached its zenith; globalization and other market developments meant that our goods reached every corner of the globe, and the collapse of the Soviet Union in 1991 dissolved the bipolar world order which had divided Europe and Asia and created zones of competition in central america and Africa. Clinton also pushed for greater institutional control of the world – the ICC, regional blocs such as the African and European Unions, and NATO all saw their influence grow from 1991-2000.

During the 2000 campaign, the Bush handlers wisely kept the President from revealing a foreign policy agenda. It was only after 9-11 that the true nature of the Bush foreign policy team was revealed. Despite the presence of Colin Powell as Secretary of State, (his recent attempts to paint himself as a liberal or cautionary presence in the white house are only given credit to me by his tentativeness to lead as JCS chief under Clinton) the Bush team was extroardinarily aggressive and idealistic in their approach to the globe.

Henry Kissenger and Dean Acheson, whom I consider to be the most effective Republican / Democratic secretary of state / diplomats of the 20th century, each faced very dangerous circumstances in their tenure. Both realized, however, that idealism must be tempered at all times with severe pragmatism in the conduct of foreign relations. Bush’s team forgot these lessons.

Over the past seven years, the Bush administration, bolstered by 9-11, has sought to increase American security. Actions which would have been unthinkable only two years earlier, and also unthinkable in any other nation which had previously experienced terrorism (hint..we overreacted) became rational. Civil liberties went by the wayside. Bush disregarded international opinion to invade Iraq, which actually weakened regional stability in the Middle East. (as for the surge working, i refer to a conversation between Nixon and Mao on the impact of the French Revolution: Nixon asked Mao if he thought the French and American Revolutions had truly altered the world, and Mao replied: its too early to tell.) Afghanistan, which was much more tied to American interests, and had a far greater international backing, went by the wayside.

Bush essentially disregarded a century of American policy-making acumen by taking the rhetorical approach of the Reagan administration toward the Soviets – the evil empire – and turning it into an obsessive policy approach to terrorism. Simply think of the phrase “global war on terrorism.” Fairly ambitious for a nation that lost 58,000 troops battling an insurgency in South Vietnam, wouldnt you say? Perhaps inspired by religious or nationalistic zeal, the Wolfowitz – Perle – Feith – Cheney – Rice – evangelical team have come close to destroying the nation in order to save it.

9-11 has fortunately fallen out of the discourse – i still sympathize with the victims, and I mourn their loss. But it was the exception – not the rule. The United States in 2001 was the most secure nation perhaps in world history. Seven years later, the same cannot be said. One only has to look at Hurricane Katrina, where our military resources were so strained by two wars abroad and no draft that we could not use them to respond to a humanitarian crisis in Louisiana, to realize that. 9-11 was a piece of luck by Bin Laden, a 1 in a million chance that happened to work. He invested very little money it it – training for the pilots, passports, a few cash payments – and hit it big. Most days Bin Laden is no smarter than the Bear-Stearns mortgage groups, but on that day he was Warren Buffett.

Unfortunately, Bush and his colleagues misjudged the outpouring of world support, and the extent of what Nye, in his book, called “hard power” – the ability to project military force. We cannot go it alone – our manpower resources are finite without a draft. Our equipment is too expensive. And had Saddam Hussein mounted a coordinated defense in Iraq, against a very small invasion force (Read Rick Atkinson’s memoir of his embed with the 101st Airborne) it would have been very bad. And the rest of the world may have pledged their support, but Bush didnt realize that mandate wouldnt extend to an invasion of a sovereign, non-aggressive nation. The lying over WMD and the “with us or against us” rhetoric did not help.

Meanwhile, while we squandared our precious military assets in a shiite-sunni civil war, and chased Osama and the tallies through the hills of Afghanistan, China and Russia grew stronger. The game was not changed by 9-11, no matter what Bush thought. It was not a paradigm-shift. The state system created by the Congress of Vienna remained in place. And our actions ensured that our rank in that system would decline.

The second area which weakened our soft power was our change in rhetoric. Clinton, Johnson, Carter, Eisenhower, even to an extent Bush and Reagan kept the message of the United States positive. We preached hope, not fear. We preached progress, not decline. Under George W Bush, that changed significantly. Look at the fear tactics of his administration – the threat levels, the patriot act, “fight them there and not here” – all are emblematic of an administration using fear to justify actions which most of the American public, in a rational state, would not support.

Unfortanately for Bush, the UN and the world werent buying. And events like Abu Ghiraib, Guantanamo, and many others have only reinforced the view, particularly in the Moslem world, that we are not helping anyone but ourselves. The war in Iraq has been a propoganda coup for our opponents, and the Chinese and Russians happily bought the bonds we needed to pay for it.

In my next piece, i’ll talk more about how to fix it – if we can.

flickr photo/mrjoro

Public Citizen won another victory against pre-emption in the case of a New Jersey woman who sued Chicken-of-the-Sea after suffering severe mercury poisoning from eating canned tuna. Chicken-of-the-Sea and the FDA tried to argue that the woman’s case should be thrown out because the FDA had issued an advisory brochure warning of canned tuna’s potentially hazardous heavy-metal content.

According to this pre-emption argument, this brochure, along with a letter from the FDA echoing Chicken-of-the-Sea’s argument that the case should be thrown out, takes away the consumer’s right to sue. In fact, the judge in this case even pointed out the suspicious resemblance in language between the letters written by the tuna industry’s lawyer and the FDA. And we thought it was FDA’s job to protect consumers from the industries, not the other way around.

Check out the online coverage from Shannon P. Duffy at the Legal Intelligencer and Wall Street Journal blogger Dan Slater.

Regardless of whether our tuna-eater wins or loses her case, this right to hold the makers of faulty products accountable is a fundamental right that Public Citizen continues to defend.

Still a little foggy on the problems preemption poses? Fret not. Public Citizen’s Litigation Group director Brian Wolfman wrote a report titled “Why preemption proponents are wrong“; in the report, Wolfman explains,

When your client has been injured by a defective car, truck, medical device, boat, tobacco product, pesticide, or mislabeled drug, or has been victimized by a bank or other lending institution, the defendant will probably assert that federal law preempts your client’s state law damages claim. You can expect this argument no matter how weak the federal regulatory scheme or how attenuated the connection between that scheme and the harms your client suffered or the state law duties under which your client seeks a remedy.

My eyes! (Don’t give me the “but it’s safer” argument, they could have accomplished the same safety standards with a better design similar to the old race car, it is obvious NASCAR wanted more sponsor space)

Oh, this is a baseball blog, never mind. But this is kind of relevant.

On Saturday’s Red Sox-Yankees game FOX cut it 2 pitches short and everyone is mad now because their baseball got interrupted for a sport that most people love to hate. The game had also been rain-delayed several time throughout, causing the game to go on for very very long.

Should we really blame NASCAR though? They did comply to FOX. And two pitches to the rest of the country, other than Red Sox and Yankees fans, is really nothing. Plus, if the Yankees and Red Sox finish, all the NASCAR fans get pissed for missing the start. But NASCAR races take forever and 500 miles is way too long for those races and you can delay the start, especially in a sub-par, excruciatingly boring race track like Phoenix International Raceway. This debate is actually interesting. Do we blame FOX, NASCAR, the weather? In this case, everyone in the New York and Boston East Coast media is overreacting. I think that is the real point here. NASCAR already delayed the start once. And while the East Coast hates NASCAR, baseball people and racing people actually respect each other pretty well it seems, with people from the Red Sox, the Diamondbacks, among other teams helping out in NASCAR ownership.

All I know is that I know way too much about both sports, both with extremely different reactions.

In an article posted by the New York Times, it appears the Bush Administration is strongly favoring and supporting immunity for the drug companies using the argument that the FDA knows best and the courts shouldn’t challenge the FDA’s approval. This would pave the way for drug companies to be immune from lawsuits by consumers that were damaged by drug side effects.

This is more than unbelievable, doesn’t this lessen the drug companies’ motivation for vigilance, and doesn’t this pave the way for “favors” from the FDA? The FDA is in place as a first line public protection agency. With Bush’s efforts, they will become the gold seal end all for the drug companies. What would they all care if they felt truly immune from public action? Where is public recourse when the drug company and the FDA have made a mistake or have worked a deal? One such mistake was made in this family and it cost a life at a young age. It is hard to believe that such companies and agencies would be offered immunity. Additionally, if one were diagnosed with cancer and a certain procedure were recommended, would you not get a second opinion, or third before proceeding? Why would fully rely on the FDA if thousands of people suffered from a deadly side effect that was previously hidden by the drug company?

Bush appears on the road to provide immunity to all corporations as the slides out of office. Add this to the list of immunity for telecommunications corps, immunity for himself and his administration, little concern for subpoenas from Congress, little concern for the American outrage over Iraq, blind eye to folks facing foreclosure while the bailed out Bear Sterns gets our tax dollars, and the continual documented dishonesty where he displays no shame, one would have to wonder who he is representing other than himself. We certainly don’t need another Republican in government if this is where our nation goes under their watch.

Here’s the NY Times article:

“For years, Johnson & Johnson obscured evidence that its popular Ortho Evra birth control patch delivered much more estrogen than standard birth control pills, potentially increasing the risk of blood clots and strokes, according to internal company documents.

Skip to next paragraph

Tom Uhlman for The New York Times

An Ortho Evra birth control patch from Johnson & Johnson.

Related

Times Topics: Food and Drug Administration; U.S. Supreme Court

But because the Food and Drug Administration approved the patch, the company is arguing in court that it cannot be sued by women who claim that they were injured by the product — even though its old label inaccurately described the amount of estrogen it released.

This legal argument is called pre-emption. After decades of being dismissed by courts, the tactic now appears to be on the verge of success, lawyers for plaintiffs and drug companies say.

The Bush administration has argued strongly in favor of the doctrine, which holds that the F.D.A. is the only agency with enough expertise to regulate drug makers and that its decisions should not be second-guessed by courts. The Supreme Court is to rule on a case next term that could make pre-emption a legal standard for drug cases. The court already ruled in February that many suits against the makers of medical devices like pacemakers are pre-empted”. more

For years, Johnson & Johnson obscured evidence that its popular Ortho Evra birth control patch delivered much more estrogen than standard birth control pills, potentially increasing the risk of blood clots and strokes, according to internal company documents.

An argumentative sleight of hand known as “pre-emption:”

But because the Food and Drug Administration approved the patch, the company is arguing in court that it cannot be sued by women who claim that they were injured by the product — even though its old label inaccurately described the amount of estrogen it released.

What villain would support such a preposterous claim?

The Bush administration has argued strongly in favor of the doctrine, which holds that the F.D.A. is the only agency with enough expertise to regulate drug makers and that its decisions should not be second-guessed by courts.

Egad! Is there a hero at the ready?

The Supreme Court is to rule on a case next term that could make pre-emption a legal standard for drug cases. The court already ruled in February that many suits against the makers of medical devices like pacemakers are pre-empted.

Nope.

The Supreme Court of the Corporate States of America likely won’t give a sh*t about dead women. Not when there are profits to protect.

And of course the chronic revolving door between industry and regulatory agencies that has become part and parcel of Lobbytown, D.C. no doubt will be beside the point.