The National Highway Traffic Safety Administration’s proposed roof crush standard, set to be issued by the end of 2008, includes a rule that would preempt consumers’ rights to demand justice in state courts. The preemption rule would override state tort law, blocking injured people from being able to hold manufacturers accountable for defective products that meet the new, proposed standard. Further, the minimal improvement in the roof strength standard does little to actually ensure occupant protection in rollover accidents, and preemption would protect auto manufacturers from any legal recourse when vehicle roof structures fail.
For the first time in 32 years, NHTSA is proposing to strengthen vehicle roofs and extend the standard to cover vehicles with a Gross Vehicle Weight Rating of 10,000 pounds. The proposed revision would require that roof structures support 2.5 times the vehicle’s weight, up from the current standard of 1.5 times. Many have criticized the proposal for doing little to actually improve safety. Even the agency notes that nearly three-quarters of the vehicles on the market already meet the proposed new standard and the standard would only prevent 13-44 fatalities, a fraction of the estimated 10,000 deaths that occur from rollover accidents each year.
In addition to this rule, NHTSA has a pattern of ignoring clear congressional intent through preemption and protecting companies over consumers. Examples include:
- In 2007, NHTSA issued safety rules regarding door locks, electronic stability control, head restraints, tire pressure monitoring systems, occupant crash protection, side impact protection, electric-powered vehicles, brake hoses, and fuel system integrity, all of which suddenly sought to preempt state common law product liability claims involving these important safety mechanisms.
- In 2008, NHTSA sought to preempt state law regarding lamps and reflective devices, school bus crash protection, and child restraint systems.
The preemption clause has provoked criticism for its negative impact on state budgets, for its infringement on states and consumers’ rights and for its rejection of Congress’s intent that these federal regulations should represent minimum safety standards.
NHTSA’s proposal on preemption with regard to the roof strength standard has prompted inquiry by U.S. Senator Arlen Specter (R), chairman of the Senate Judiciary Committee and Senator Patrick Leahy (D). In a letter to Congress they noted that the Transportation Equity Act did not give NHTSA any explicit authority to preempt state law in this regulation, which is required under Executive Order 13132.
“We are interested to learn how NHTSA concluded that preemption of State law was the intent of Congress when it passed the Transportation Equity Act,” the senators wrote.
In a letter signed by 27 attorneys general, led by Tom Miller of Iowa (D) and Wayne Stenehjem of North Dakota( R), it was also noted that:
“The state common law court system serves as a vital check on government-imposed safety standards. Vehicles and equipment can contain hazardous features and still meet federal minimum safety standards. NHTSA’s proposal is likely to erode manufacturer incentives to assure that vehicles are as safe as possible for their intended use.’’
States Foot Bill
Still other advocates for the states protested that preemption would force states – rather than the manufacturers of vehicles with weak roofs – to bear the cost of deaths and injuries caused each year from rollovers. Respected economist Ted Miller, of the Pacific Institute for Research and Evaluation, concluded that the proposed rule would have a significant economic impact on insurers, state governments and the court system and called the agency’s failure to consider preemption’s cost “a glaring error.” Rollover victims and their families who cannot recover their losses will be forced into bankruptcy, with government programs picking up the tab for medical expenses and income support.
Miller also argued that preemption would take an economic toll on auto, health and life insurers and on the legal industry by raising the costs of litigation. Finally Miller urged NHTSA to consider the financial implications of discouraging manufacturers to seek out innovative ways to strengthen vehicle roofs without increasing their propensity to rollover. Losing the safety benefits prompted by preemption impacts the marketplace in ways the agency must explore, he said.