INTRODUCTION

As shown in other chapters of this book, the preemption doctrine has been applied inconsistently by the courts, and, in many cases, the results have failed to promote either federal-state comity or institutional competence. Preemption is particularly troublesome when Congress has included a savings clause in the federal statute at issue.

Many, if not most, federal public health and environmental statutes include broadly crafted savings clauses intended to leave ample room for state law to provide increased protection beyond the federal regulatory floor. Recent Supreme Court cases reveal a pattern of hostility toward savings clauses in cases involving state regulatory programs. In contrast, although the Court's reception of savings clauses for common law tort claims has been unpredictable, by and large tort claims have been treated more favorably. The inclusion of generously worded savings clauses governing state tort claims may explain these results in some contexts, but the text of most savings clauses is so similar that, as the Supreme Court has noted, not even the “most dedicated hair-splitter” could distinguish them. Instead, the Court apparently views positive enactments and formal regulatory programs issued by state legislatures and state agencies as a greater threat to the implementation of federal programs and the accomplishment of federal goals than tort claims.