The Supreme Court/The Supreme Court.iso/pc/ascii/1990/90_1676/90_1676.zc

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SUPREME COURT OF THE UNITED STATES
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No. 90-1676
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MARY  GADE,  DIRECTOR,  ILLINOIS  ENVIRON-
MENTAL PROTECTION AGENCY, PETITIONER
v. NATIONAL SOLID WASTES MANAGEMENT
ASSOCIATION
on writ of certiorari to the united states court of
appeals for the seventh circuit
[June 18, 1992]

  Justice Kennedy, concurring in part and concurring in
the judgment.
  Though I concur in the Court's judgment and with the
ultimate conclusion that the state law is pre-empted, I
would find express pre-emption from the terms of the
federal statute.  I cannot agree that we should denominate
this case as one of implied pre-emption.  The contrary view
of the plurality is based on an undue expansion of our
implied pre-emption jurisprudence which, in my view, is
neither wise nor necessary.
  As both the majority and dissent acknowledge, we have
identified three circumstances in which a federal statute
pre-empts state law:  First, Congress can adopt express
language defining the existence and scope of pre-emption.
Second, state law is pre-empted where Congress creates a
scheme of federal regulation so pervasive as to leave no
room for supplementary state regulation.  And third, -state
law is pre-empted to the extent that it actually conflicts
with federal law.-  English v. General Electric Co., 496 U. S.
72, 78-79 (1990); ante, at 8; post, at 1-2.  This third form
of pre-emption, so-called actual conflict pre-emption, occurs
either -where it is impossible for a private party to comply
with both state and federal requirements . . . or where state
law `stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.'-
English, supra, at 79 (quoting Hines v. Davidowitz, 312
U. S. 52, 67 (1941)).  The plurality would hold today that
state occupational safety and health standards regulating
an issue on which a federal standard exists conflict with
Congress' purpose to -subject employers and employees to
only one set of regulations.-  Ante, at 9.  This is not an
application of our pre-emption standards, it is but a conclu-
sory statement of pre-emption, as it assumes that Congress
intended exclusive federal jurisdiction.  I do not see how
such a mode of analysis advances our consideration of the
case.
  Our decisions establish that a high threshold must be
met if a state law is to be pre-empted for conflicting with
the purposes of a federal Act.  Any conflict must be -irrecon-
cilable . . . .  The existence of a hypothetical or potential
conflict is insufficient to warrant the pre-emption of the
state statute.-  Rice v. Norman Williams Co., 458 U. S. 654,
659 (1982); see also English, supra, at 90 (-The `teaching of
this Court's decisions . . . enjoin[s] seeking out conflicts
between state and federal regulation where none clearly
exists.'- (quoting Huron Portland Cement Co. v. Detroit, 362
U. S. 440, 446 (1960)); Pacific Gas & Elec. Co. v. State
Energy Resources Conservation and Development Comm'n,
461 U. S. 190, 222-223 (1983).  In my view, this type of pre-
emption should be limited to state laws which impose
prohibitions or obligations which are in direct contradiction
to Congress' primary objectives, as conveyed with clarity in
the federal legislation.
  I do not believe that supplementary state regulation of an
occupational safety and health issue can be said to create
the sort of actual conflict required by our decisions.  The
purpose of state supplementary regulation, like the federal
standards promulgated by the Occupational Safety and
Health Administration (OSHA) is to protect worker safety
and health.  Any potential tension between a scheme of
federal regulation of the workplace and a concurrent,
supplementary state scheme would not, in my view, rise to
the level of -actual conflict- described in our pre-emption
cases.  Absent the express provisions of 18 of the Occupa-
tional Safety and Health Act of 1970 (OSH), 29 U. S. C.
667, I would not say that state supplementary regulation
conflicts with the purposes of the OSH Act, or that it
-interferes with the methods by which the federal statute
was designed to reach [its] goal.-  Ante, at 13 (quoting
International Paper Co. v. Ouellette, 479 U. S. 481, 494
(1987)).
  The plurality's broad view of actual conflict  pre-emption
is contrary to two basic principles of our pre-emption
jurisprudence.  First, we begin -with the assumption that
the historic police powers of the States [are] not to be
superseded . . . unless that was the clear and manifest
purpose of Congress,- Rice v. Santa Fe Elevator Corp., 331
U. S. 218, 230 (1947); see also ante, at 6.  Second, -`the
purpose of Congress is the ultimate touchstone'- in all pre-
emption cases.  Malone v. White Motor Corp., 435 U. S. 497,
504 (1978) (quoting Retail Clerks v. Schermerhorn, 375
U. S. 96, 103 (1963)).  A free-wheeling judicial inquiry into
whether a state statute is in tension with federal objectives
would undercut the principle that it is Congress rather than
the courts that pre-empts state law.
  Nonetheless, I agree with the Court that -the OSH Act
pre-empts all state `occupational safety and health stan-
dards relating to any occupational safety or health issue
with respect to which a Federal standard has been promul-
gated.'''  Ante, at 15 (quoting 29 U. S. C. 667(b)).  I
believe, however, that this result is mandated by the
express terms of 18(b) of the OSH Act.  It follows from
this that the pre-emptive scope of the Act is also limited to
the language of the statute.  When the existence of pre-
emption is evident from the statutory text, our inquiry must
begin and end with the statutory framework itself.
  A finding of express pre-emption in this case is not
contrary to our longstanding rule that we will not infer pre-
emption of the States' historic police powers absent a clear
statement of intent by Congress.  Rice v. Santa Fe Elevator
Corp., supra, at 230; Jones v. Rath Packing Co., 430 U. S.
519, 525 (1977); English, 496 U. S., at 79.  Though most
statutes creating express pre-emption contain an explicit
statement to that effect, a statement admittedly lacking in
18(b), we have never required any particular magic words
in our express pre-emption cases.  Our task in all pre-emp-
tion cases is to enforce the -clear and manifest purpose of
Congress.- Rice v. Santa Fe Elevator Corp., supra, at 230.
We have held, in express pre-emption cases, that Congress'
intent must be divined from the language, structure, and
purposes of the statute as a whole.  Ingersoll-Rand Co. v.
McClendon, 498 U. S. ___, ___ (1990) (slip op., at 3); Pilot
Life Ins. Co. v. Dedeaux, 481 U. S. 41, 51 (1987).  The
language of the OSH statute sets forth a scheme in light of
which the provisions of 18 must be interpreted, and from
which the express pre-emption that displaces state law
follows.
  As the plurality's analysis amply demonstrates, ante, at
8-12, Congress has addressed the issue of pre-emption in
the OSH Act.  The dissent's position that the Act does not
pre-empt supplementary state regulation becomes most
implausible when the language of 18(b) is considered in
conjunction with the other provisions of 18.  Section 18(b)
provides as follows:
      -Any State which . . . desires to assume responsibility
for development and enforcement therein of occupation-
al safety and health standards relating to any occupa-
tional safety or health issue with respect to which a
Federal standard has been promulgated . . . shall
submit a State plan . . . .-  29 U. S. C. 667(b) (empha-
sis added).
The statute is clear:  When a State desires to assume
responsibility for an occupational safety and health issue
already addressed by the Federal Government, it must
submit a state plan.  The most reasonable inference from
this language is that when a State does not submit and
secure approval of a state plan, it may not enforce occupa-
tional safety and health standards in that area.  Any doubt
that this is what Congress intended disappears when
subsection (b) is considered in conjunction with subsections
(a), (c), and (f).  Ante, at 9-11.  I will not reiterate the
plurality's persuasive discussion on this point.  Unartful
though the language of 18(b) may be, the structure and
language of 18 leave little doubt that in the OSH statute
Congress intended to pre-empt supplementary state regula-
tion of an occupational safety and health issue with respect
to which a federal standard exists.
  In this regard I disagree with the dissent, see post, and
find unconvincing its conclusion that Congress intended to
allow concurrent state and federal jurisdiction over occupa-
tional safety and health issues.  The dissent would give the
States, rather than the Federal Government, the power to
decide whether as to any particular occupational safety and
health issue there will exist a single or dual regulatory
scheme.  Under this theory the State may choose exclusive
federal jurisdiction by not regulating; or exclusive state
jurisdiction by submitting a state plan; or dual regulation
by adopting supplementary rules, as Illinois did here.  That
position undermines the authority of OSHA in many
respects.  For example, 18(c)(2) of the OSH Act allows
OSHA to disapprove state plans which -unduly burden
interstate commerce.-  The dissent would eviscerate this
important administrative mechanism by allowing the States
to sidestep OSHA's authority through the mechanism of
supplementary regulation.  See ante, at 10-11.  Further-
more, concurrent state and federal jurisdiction might
interfere with the enforcement of the federal regulations
without creating a situation where compliance with both
schemes is a physical impossibility, which the dissent would
require for pre-emption.  Post, at 7; see also Brief for
Respondent 32-33.  I would not attribute to Congress the
intent to create such a hodge-podge scheme of authority.
My views in this regard are confirmed by the fact that
OSHA has as a consistent matter, since the enactment of
the OSH Act, viewed 18 as providing it with exclusive
jurisdiction in areas where it issues a standard.  29 CFR
1901.2 (1991); 36 Fed. Reg. 7006 (1971); Brief for United
States as Amicus Curiae 12-21.  Therefore, while the
dissent may be correct that as a theoretical matter the
separate provisions of 18 may be reconciled with allowing
concurrent jurisdiction, it is neither a natural nor a sound
reading of the statutory scheme.
  The necessary implication of finding express pre-emption
in this case is that the pre-emptive scope of the OSH Act is
defined by the language of 18(b).  Because this provision
requires federal approval of state occupational safety and
health standards alone, only state laws fitting within that
description are pre-empted.  For that reason I agree with
the Court that state laws of general applicability are not
pre-empted.  Ante, at 16.  I also agree that -a state law
requirement that directly, substantially, and specifically
regulates occupational safety and health is an occupational
safety and health standard within the meaning of the Act,-
ante, at 16-17, and therefore falls within the scope of pre-
emption.  So-called -dual impact- state regulations which
meet this standard are pre-empted by the OSH Act, regard-
less of any additional purpose the law may serve, or effect
the law may have, outside the workplace.  As a final
matter, I agree that the Illinois Acts are not saved because
they operate through a licensing mechanism rather than
through direct regulation of the workplace.  I therefore join
all but Part II of the Court's opinion, and concur in the
judgment of the Court.