Maine, justifiably concerned about an increase in its teenagers’ cigarette smoking, sought to limit underage access to stogies via the internet a couple years ago. Apparently, youngsters in the Pine Tree State were purchasing cigarettes on line for home delivery, thereby skirting age verification by local retailers. In 2003, Maine enacted a statute that imposed a number of requirements on motor carriers delivering tobacco products within its borders (the “Tobacco Delivery Law”). The state law also illegalized delivery of known tobacco products originating from unlicensed retailers.
A number of New England trucking associations banded together and sued, seeking to have the new law eradicated as violative of the Federal Aviation Administration Authorization Act of 1994 (the “FAAAA”). The plaintiffs urged the FAAAA preempted state laws that regulated interstate commerce, even if they were well-intended.
As written, Maine’s statute would require carriers to check all packages to see if they contained cigarettes, and learn the age of any tobacco purchaser before delivery. It also imposed a number of other requirements on carriers and tobacco product sellers before shipping products into the state.
The plaintiff associations sued Maine in the state’s federal district court, making carrier United Parcel Service its poster child for purposes of briefing the state statute’s ill effects. UPS delivers some 65,000 packages per day in Maine including express deliveries. An operation of that magnitude demands an integrated system that is highly coordinated among the carrier’s various facilities. Of course, UPS had no internal requirement that packages be delivered only to named addressees (as Maine’s statue would mandate). Realizing compliance with the statute was operationally impossible, UPS refused to deliver tobacco products to Maine consumers, and was forced to implement a complicated system of segregating packaging which potentially contained tobacco. Those packages received expensive attention to ensure they were headed to retailers and distributors only. Thus, the associations urged, it was clear UPS had been forced to “alter [its] delivery practices” for tobacco cargoes.
The District of Maine initially disfavored the claim, focusing on leeway the FAAAA grants states in the enforcement of contraband laws and health-and-safety oriented programs, as well as the statute’s general good intentions. But the court reversed course, and struck down two of the statute’s three sections. The FAAAA’s preemption is encompassing, prohibiting states from enacting any law “related to a price, route, or service” of a motor carrier in interstate transit. While the statute does not expressly reference carrier services, it would have a forbidden effect because a carrier like UPS would have to “alter [its] delivery practices” for tobacco packages to avoid violation. Moreover, UPS would have to depart from “its nationally uniform procedure” by inspecting each package to determine its contents.
The trial court considered a number of U.S. Supreme Court and lower federal court decisions, noting the broad interpretation ascribed to various FAAAA terms when applied to language similar to that of Maine’s statute. Recognizing the impediments interstate transportation would face if states enacted differing requirements, the court ruled that Maine may not require carriers to verify qualifying specifics of a consignee. Forcing retailers to use only carriers that offer certain services is also verboten. The court blessed one aspect of the statute, however, ruling that carriers may be required to verify a purchaser’s age before effecting a sale.
The Pine Tree State appealed to the First Circuit. Revisiting the FAAAA’s design and purposes, the Court of Appeals addressed (1) plaintiffs’ standing to sue; (2) whether the claims were moot based on UPS’ settlement in a similar matter out of New York; and (3) the FAAAA’s substance as a preemptive federal statute.
Standing: Each Pack Is Represented by the Carton
Maine first tried to snuff out the carriers’ claim by pointing to the Representation Standing Doctrine, which qualifies associations to bring suit on behalf of its members when “neither the claim asserted nor the relief requested requires the participation of individualized members of the law suit.” The state argued that plaintiffs’ evidence supported only UPS’ unique issues, and urged that each member of the associations would have to state its own circumstances for the associations to have standing.
Affirming the trial court, but agreeing the argument might have merit in other circumstances, the First Circuit concluded that plaintiff associations do not have to go that far when they seek only injunctive and declaratory relief. The claims as currently postured required a “sufficiently fact-intensive inquiry” as to the carriers as they were similarly situated. The court focused on the FAAAA’s statutory wording (preemption applies if a state law relates to “any motor carrier” or “an air carrier” [emphasis added by the First Circuit]), as well as some compelling legislative history language (“one of the FAAAA’s central purposes [is] to establish ‘a level playing field’ among the carriers.” In this light, the court concluded that “[i]f preemption were judged on a carrier-specific basis, the result would be a ‘patchwork’ of state laws applying to some carriers and not to others, depending on which carriers proceeded to litigation.”
Mootness, or as Goes the Rest of the Country, Maine Does Not Go
Maine next tried to short-circuit the carriers’ claims by pointing to UPS’ settlement of an enforcement action New York brought with intentions similar to its northern neighbor. In that settlement, UPS agreed to forego some of the same activity – nationwide – that it now claimed was unfair in the context of Maine’s statute. The court struggled to distinguish the Empire State’s concerns from those of Maine’s Tobacco Delivery Law, but did so by finding that the former were limited to cigarettes, while the latter included other tobacco products and devices.
Turning to the case’s substance, the First Circuit reviewed general precepts of federal law supremacy, and focused on how the FAAAA has been interpreted to have a broad preemptory purpose. Specifically, the Supreme Court has interpreted the FAAAA’s clause “related to a price, route or service” of a carrier to indicate preemption of a wide range of potentially interfering state legislation and rulemaking. Subsequent “narrowing” of the preemption concept in the ERISA context was ruled irrelevant.
What was of interest to the court was the FAAAA’s structure and legislative history, which included a list of specified exceptions to the general preemption rule, all of which are inapplicable to Maine’s statute. The court refused Maine’s invitation to interpret the exceptions broadly based on a state’s inherent and generally non-preempted “police power” to monitor health and welfare issues (indeed, the FAAAA’s legislative history warns the list is “not intended to be all inclusive” in that regard), lest those exceptions “swallow the rule of preemption.”
The court also noted that certain FAAAA legislative history suggested only state economic regulation was verboten. The state argued that its statute was not economic regulation, at least not in the traditional sense. The history’s language was not quite that exclusionary, however, “[a]nd in any event, the legislative history cannot trump the statute’s text.”
But most importantly, the court concluded that Supreme Court precedents
. . . teach that, under the Airline Deregulation Act, the focus should be on the effect that the state law has on airline operations. Accepting the Attorney General’s argument would shift the analysis under the FAAAA away from that state law’s effect and towards the state’s purpose for enacting the law. A purpose-related limitation on FAAAA preemption would thus inevitably create a gap between the scope of FAAAA and Airline Deregulation Act preemption-a gap which the FAAAA drafters sought to avoid.
The state argued the FAAAA regulates only retailers of tobacco products (i.e., it does not regulate carriers) and, anyway, a carrier can avoid Maine’s tobacco delivery law simply by declining to provide tobacco-product deliveries to Maine consumers. The court rejected these points, again based on the FAAAA’s broad “relating to” language (i.e., it does not say “regulates”), and the fact that Maine’s interpretation of its law would empower it to indirectly regulate carriers. The court observed that the FAAAA’s intended environment is one that is market-driven, and not governed by “state regulatory regimes.”
But turning to whether a state could illegalize delivery of “known” tobacco products sold by an unlicensed dealer, the court of Appeals took a different tack. Recognizing “that courts should ‘not nullify more of a legislature’s work than is necessary, for . . . a ruling of unconstitutionality frustrates the intent of the elected representative of the people,’” the First Circuit reversed the district court on the ground the onus this portion of Maine’s law imposed on carriers was not unreasonable. “State laws that only have a ‘tenuous, remote, or peripheral’ relation to services are beyond the FAAAA’s reach.” Forcing carriers to decline transport of statutorily defined and easily discernible contraband is too “tenuous,” ruled the court, to warrant preemption. Thus, Maine’s law prohibiting transport of clearly marked tobacco products from unlicensed retailers is acceptable.
While this is a well-reasoned opinion addressing issues that necessarily involve politically driven judgment calls, query whether New Hampshire Motor Transport leaves unanswered as many questions as it answers, demonstrates the lack of uniformity that inevitably results when opinions differ about uniformity, and elucidates prevailing difficulties with federal preemption law governing transportation Put simply, divergent conclusions are always a risk, if not inevitable, in questions hinging on what is “reasonable.”
Importantly, 26 states joined in an amicus curiae brief to the First Circuit to support Maine’s plight. Conversely, four state trucking associations plus the American Trucking Associations and the Chamber of Commerce of the United States of America were amici of the plaintiff/appellee. This alone demonstrates the import of decisions interpreting federal preemption of state laws addressing interstate trucking.
The First Circuit’s opinion purports to be premised on an effects-not-purpose concept, i.e., that potential consequences control the issue, and good intentions must be restricted in context. The court was notably mindful of its concededly incongruent conclusions:
In reaching this conclusion, we recognize that there is a potential tension between saying that, on the one hand, Maine is free to punish the knowing delivery of material that it has classified as contraband, while, on the other hand, ruling that it may not dictate or interfere with a carrier’s delivery procedures. What we are saying here, however, is that Maine cannot use the mechanisms outlined in the statute to impute knowledge based on a failure to read labels or consult lists-an imputation which would amount to prescribing how carriers must operate.
If, however, Maine could prove that a carrier employee had actual knowledge that a package being delivered was contraband tobacco, then it might have a colorable enforcement case-although such circumstances, as a practical matter, may be difficult to prove. True, the “related to” language could stretch to such a case but it could also stretch to the knowing delivery of hard drugs-and Congress cannot have intended such a result.
From an operational perspective, this is splitting hairs at best. Under what conceivable circumstances might Maine ever prove a carrier had “actual knowledge,” or be able to undertake a meaningful enforcement program with that limitation? Moreover, the precedential confusion from this dicta is unpredictable, or worse.
The problem lies within the FAAAA’s drafting. Like many other carrier regulatory statutes, inadequate consideration was given to myriad problems – health, safety and otherwise – for which states necessarily adopt divergent solutions. The federal government is in no position to draft and enforce uniform measures to combat tobacco, drug and other contraband issues on a nationwide basis, at least not as effectively as can states. Yet, the FAAAA severely hampers states in their capacities to address their own issues, as uniformity and federal preemption impedes such programs as Maine’s Tobacco Delivery Law.
These issues are not unique to motor and aviation transport. The Federal Railroad Safety Act (“FRSA”), mandates that “[t]he Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable.” However, that is qualified by FRSA’s provision that “[a] State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order—(1) is necessary to eliminate or reduce an essentially local safety or security hazards; . . .” Perhaps more importantly, the FRSA provides that “a State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the requirement.” In other words, unless federal railroad law addresses the same issue, the FRSA probably would not preempt a state law. This grants local lawmakers and regulators more leeway and discretion in governing their own jurisdictions in light of local concerns. Volumes could – and have been – written discussing the FRSA’s uniformity and preemption complications, but accommodation to essentially state and local issues is commendably provided.
Unfortunately, the First Circuit paid little heed to arguments from over half the country’s states as to numerous decisions state and federal courts have rendered on these same issues. While those cited decisions differed from the First Circuit’s, the fact that they did so based on varied rationales is most significant. Transportation deregulation has not supplanted the need for uniformity. However, it has created a new atmosphere that calls for a more practical approach by judicial, regulatory and legislative authorities as to the mechanics of uniformity.
 “An Act to Regulate the Sale of Tobacco Products and to Prevent the Sale of Cigarettes to Minors.” See L.D. 1236 (121st Maine Leg.) (codified at 22 M.R.S.A. §§ 1551, 1555-C & 1555-D).
 The plaintiffs pointed to two FAAAA preemption provisions. The first provides that a “State ··· may not enact or enforce a law ··· related to a price, route, or service of any motor carrier ··· with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1). The second states that a “State may not enact or enforce a law ··· related to a price, route, or service of an air carrier or carrier affiliated with a direct air carrier through common controlling ownership when such carrier is transporting property by aircraft or by motor vehicle····” 49 U.S.C. § 41713(b)(4)(A). See Pub.L. No. 103-305, § 601; 108 Stat. 1569.
 The statute would require retailers to use carriers that will ensure that: (1) the purchaser of the tobacco products is the same person as the addressee of the package; (2) the addressee is of legal age to purchase tobacco products and sign for the package; and (3) if the addressee is under 27 years of age, that she show a valid government-issued identification verifying that she is old enough to purchase tobacco products. § 1555-C(3)(C). Penalties are imposed only against the retailer for violations of this provision. §§ 1555-C(3)(E) & (F).”
 New Hampshire Motor Transport Ass’n v. Rowe, 377 F.Supp.2d 197, Fed. Carr. Cas. P 84, 394 (D. Mn 2005). G. Steven Rowe is Maine’s attorney general.
 377 F.Supp.2d at 216.
 Id. at 216.
 Id. at 212.
 377 F.Supp.2d at 217. The district court ruled: “This subsection results only in the carrier receiving information about the purchaser’s age: the carrier does not have to do anything with this information without the requirements of subsection 1555-C(3)(C). This effect on carriers’ services is not significant. I do not find subsection 1555-C(3)(A) to be preempted because it does not have a significant effect on carriers’ services.”
 New Hampshire Motor Transport Ass’n v. Rowe, 448 F.3d 66 (1st Cir. 2006).
 Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), which first enunciated the doctrine. Other qualifying factors are that an association’s “members would otherwise have standing to sue in their own right”; and “the interests it seeks to protect are germane to the organization’s purpose.” 448 F.3d at 71.
 448 F.3d at 72.
 Id., citing H.R. Conf. Rep. 103-677 at 85.
 Id., citing H.R. Conf. Rep. 103-677 at 87.
 In the New York matter, UPS agreed (1) to identify all shippers that may be cigarette retailers and advise them that UPS will not accept cigarettes for delivery to consumers; (2) to discipline shippers that violate UPS’s non-delivery policy; (3) to impose measures to ensure that employees “actively” look for indications that a package contains cigarettes; and (4) to instruct drivers not to deliver cigarette packages to consumers. 448 F.3d at 73.
 Indeed, the statute’s encompassing language was determinative: “In the end, the Attorney General’s argument founders because it cannot be reconciled with the FAAAA’s text. The Act’s drafters chose to express the preemptive scope of the FAAAA in words that they understood to be exceedingly broad.” 448 F.3d at 78.
 The “seminal case” on the issue is Morales v. Trans World Airlines, Inc., 504 U.S. 374, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). 448 F.3d at 75.
 These include “the safety regulatory authority of a State with respect to motor vehicles, 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 the authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization.” 49 U.S.C. §§ 14501(c)(2) & 41713(b)(4)(B)(i). 448 F.3d at 76.
 H.R. Conf. Rep. 103-677 at 84.
 Citing United Parcel Serv., Inc. v. Flores-Galarza, 385 F.3d 9, 14 (1st Cir.2004). 448 F. 3d at 76.
 The Court pointed out that the: “Conference Committee Report observed that ‘[s]tate economic regulation of motor carriers … is a huge problem for national and regional carriers attempting to conduct a standard way of doing business.’ H.R. Conf. Rep. No. 103-677 at 85… The conferees identified ‘typical forms’ of harmful regulation to include ‘entry controls, tariff filing, price regulation,’ and regulation of the ‘types of commodities carried.’ Id. at 1758. This history led the Supreme Court to remark that ‘the problem to which the [FAAAA] congressional conferees attended was state economic regulation.’ Columbus v. Ours Garage & Wrecker Serv., 536 U.S. 424, 440, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002).” 448 F.3d at 77.
 448 F.3d at 77, citing Cipollone v. Liggett Group, Inc., 505 U.S. 504, 521, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992).
 448 F.3d at 78.
 Id. at 79.
 448 F.3d at 80, citing Ayotte v. Planned Parenthood of N. New England, ---U.S. ----, ----, 126 S.Ct. 961, 967, 163 L.Ed.2d 812 (2006).
 Id., citing Morales, 504 U.S. at 390.
 Id. Apparently, whether or not a retailer-shipper is licensed is easily determinable.
 448 F.3d 66 at 82.
 49 U.S.C. § 20106.
 This provision may have been of limited utility to Maine, even had it been in the FAAAA. The First Circuit itself noted that “tobacco use, particularly among children and adolescents, poses perhaps the single most significant public health problem in the United States.” 448 F.3d at 82, citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 161, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). It would be difficult to argue that underage tobacco use was an “essentially local safety or security hazard” unique to Maine.
 49 U.S.C. § 20134(a) (2000).
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