Norfolk Southern R. Co. v. Shanklin - Oral Argument
Transcript:
Argument of Carter G. Phillips
Chief Justice Rehnquist: We'll hear argument now in Number 99-312, Norfolk Southern Railway Company v. Dedra Shanklin.
Mr. Phillips.
Mr. Phillips: Thank you, Mr. Chief Justice, and may it please the Court:
7 years ago in CSX v. Easterwood this Court held that when the provisions of 23 C.F.R. 646.213(b)(3) and (b)(4), which from now on I am going to refer to as (b)(3) and (b)(4), because otherwise I won't get any of my argument out, quote, are applicable, State tort law is preempted.
Specifically, the Court identified the sine qua non of preemption as whether, quote, Federal funds participate in the installation of warning devices at the particular site.
Preemption, the Court held, was appropriate in that context because the determination of what type of warning device to be installed at a particular crossing is in those circumstances, quote, subject to the Secretary's approval.
The Court expressly recognized that under that particular regulatory scheme the Secretary has decided the means by which railroads are to participate in the selection of a particular device and thus, when applicable, the Secretary's regulations cover the subject matter of tort law regarding the adequacy of the particular devices within the meaning...
Justice O'Connor: Well, has the Secretary determined the devices to be installed here, or is it just some minimum program we're dealing with?
Mr. Phillips: This is not a minimum program, Justice O'Connor.
All of... the program is the program.
(b)(3) refers specifically to any project, which means that if Federal funds are involved it is subject to the approval of the Secretary on the same standards as any other project that happens to be submitted for the Secretary's approval, and on the same standards.
Justice O'Connor: I somehow had the impression that we were dealing here with a crossing that had crossbucks installed under the minimum program for a State.
Mr. Phillips: I think it's important...
Justice O'Connor: In this case, Tennessee.
Is that right?
Mr. Phillips: No.
Justice O'Connor: No, okay.
Mr. Phillips: That's absolutely wrong, Justice O'Connor, on two counts, one a matter of law, and one is a matter of fact.
The legal problem with the argument is, there is no such thing as a minimum protection program that is distinct under (b)(1) from the projects, from the any projects that are referenced in (b)(3).
(b)(3) specifically has the heading, adequate warning devices, and it is designed to ensure that all projects that receive Federal funds are in fact approved, and that the Secretary has at least available the option to say no, additional safety is required in a particular circumstance.
The fact that the Secretary doesn't do that routinely is simply a reflection of the respect that the Secretary has in the way the States operate...
Chief Justice Rehnquist: Mr. Phillips...
Mr. Phillips: the section 130 program.
I'm sorry, Chief Justice.
Chief Justice Rehnquist: Where do we find (b)(1) and (b)(3) set out in the... in your brief, or somewhere else?
Mr. Phillips: It's in the appendix to the petition, Mr. Chief Justice, at pages 46a and 47a.
Chief Justice Rehnquist: Thank you.
Justice Kennedy: Is it your position that preemption occurs when the devices are installed and the... pursuant to the Federal program, and the money's paid?
Mr. Phillips: Yes.
I think both of those are probably required in any given circumstance.
Justice Kennedy: That's the point at which preemption occurs?
Mr. Phillips: Right.
At that point, preemption occurs, and at that point as well, of course, that particular crossing we now know is part of this global 130 program that is designed to systematically, comprehensively collect data, analyze each of the crossings throughout the State, and make a determination on a regular basis as to whether or not those crossings are adequate on a going-forward basis.
Justice Ginsburg: Mr. Phillips, you started with discussion of the Easterwood case, and that was a case that held there was no preemption, yet you're using it to support your position that there is preemption.
Now, no doubt that case held Federal assistance is necessary to preemption, but it never homed in on the kind of crossing protection involved here, that is, simply the sign.
There was... the Court was looking at an upgraded... was it not?
It wasn't a simple sign, but it was some kind of a gate that was involved?
Mr. Phillips: No, Justice Ginsburg.
What was actually involved there, there was no evidence as to any protections at the Cartersville...
Justice Ginsburg: Yes, but...
Mr. Phillips: Crossing in CSX.
Justice Ginsburg: Yes, but the...
Mr. Phillips: There was...
Justice Ginsburg: It was originally a proposal not for a simple sign, but for gates.
Then that was transferred to some place else.
Mr. Phillips: No...
Justice Ginsburg: All... my only point is that the Court was not looking at what we have before us today.
That is, funding simply of a sign.
Mr. Phillips: Okay.
Again, there are two answers to that, Justice Ginsburg.
First of all, this is not funding of a sign.
What actually happened in Tennessee... Tennessee has a program, a quote, minimum program that is Tennessee-specific, that is different, that is unique to Tennessee.
Every other State basically has a project, but Tennessee decided to upgrade over what is required specifically under section 130.
Section 130 says, yeah, everybody should have a sign at a crossing.
Tennessee went beyond that and said, you have to have reflectorized crossbucks, and you have to have a warning sign at every crossing.
That is above and beyond the Federal minimum, and that is exactly what was placed on all of the projects that were involved in the 1987 Federal funding.
That's the scheme in place here.
Now, that's the factual distinction which says, this is not... even if you want to work off of a notion that there's a minimum sign program, which I don't think is incorporated into this regulatory scheme, it wouldn't apply here.
But the more... but over and above that, it's clear that this regulatory scheme envisions that the Secretary will pay money and then be responsible, along with the State on a prospective basis for ensuring the safety and the protection of the citizens who have to make... who have to go across those particular crossings, and the Court understood that when it set out the legal framework to be applied in this particular context.
To be sure, the Court held there was no Federal funding at that particular site.
Justice Ginsburg: It held there was no preemption, and I'm a little troubled at the idea of taking a case that held there was no preemption in that case to establish beyond question that there is preemption in a case that was not before the Court.
Mr. Phillips: Well, I wouldn't be so bold as to tell you that there's no basis for rethinking the wisdom of the basic analysis in Easterwood, but the reality of what happened in Easterwood is, the Solicitor General described this exact scheme and said that this is a... that this prospective approach will work perfectly well, it is exactly what Congress wanted, but the key is to make sure that each individual grade crossing is embraced by this scheme, and you can only be assured of that once you have Federal funding, or that Federal moneys participate in the installation of the devices for any project under (b)(3).
Justice Ginsburg: If the Secretary decided that it would be desirable to have every crossing meet at least a minimum standard, there would be no way to do that without affecting preemption, in your view?
Mr. Phillips: I think if the Secretary spends the money under the program that's set up today, under the (b)(3), (b)(4) program that exists today, then the Secretary would necessarily have to review the moneys that are being spent and ensure that those projects are being done in a safe fashion, and then rely on the States, subject to Federal approval as well, because it's all federally funded, to ensure the future safety of them.
Justice Ginsburg: But he couldn't... the Secretary couldn't say, in your view, we don't want to engage in that kind of detailed analysis, we just want to say universally every crossing will have at least the minimum sign?
Mr. Phillips: I think the answer to that problem would be that the Secretary ought to change the regulations so that they no longer define adequate warning devices at all projects for which Federal funds are involved.
Justice Ginsburg: Under these regulations the Secretary...
Mr. Phillips: I think if they want to get out of that they could do that.
Justice Ginsburg: could not do that.
Mr. Phillips: I'm sorry?
Justice Ginsburg: Under these regulations, the Secretary could say... couldn't say, without looking at any particular crossing, we are going to require every crossing to have at least the minimum.
Mr. Phillips: That's correct.
The way this is set up at this point, it specifically says any project, and I think that language necessarily means that if you're allowing Federal funds to participate, regardless of how you do it, you preempt State law.
I want to be clear about this, though, and it's the reason why Easterwood is a sensible approach to this problem, is, it doesn't mean that people are left unprotected.
That's the suggestion made by both the Solicitor General and the respondent in this case.
The point here is that the States have a continuous obligation, and the railroads have a continuous obligation to update information about each one of these grade crossings, the information that they have available.
How many trains are running?
What kinds of materials are running on those trains?
What kinds... and from the States.
What's running on that road?
Is there going to be a high school built next door, et cetera, all of which goes into a yearly report to determine whether or not each of those grade crossings is safe.
You...
Justice Scalia: Mr. Phillips, did the Solicitor General support the outcome that we reached in Easterwood?
Mr. Phillips: He did not support the... oh, he supported the outcome...
Justice Scalia: The outcome.
Mr. Phillips: that you reached in Easterwood, yes, Justice Scalia.
Justice Scalia: Did he support the rationale?
Mr. Phillips: He not only supported the rationale, he... I was going to say invented.
That's probably harsh.
He came up with the rationale, yes, Your Honor.
It was his analysis of this regulatory scheme that suggested that ultimately the linchpin to preemption ought to be Federal funding, because in that way you guarantee that each project has had an initial look, subject to the approval of the Secretary of Transportation, and then you get the benefit of the entire...
Justice Scalia: So you're saying that having persuaded us that that was correct, the Solicitor General now wants to persuade us that it's not correct?
Mr. Phillips: I think the Solicitor General could fairly be described as having come up the hill to ask you to come back down the hill...
Justice Stevens: Well, it's a different Solicitor General, too, isn't it?
Isn't it a different Solicitor General?
Mr. Phillips: My... yes, Your Honor, there is a different Solicitor General.
Justice Stevens: Representing a different philosophy on this whole area of the law, I would say.
Mr. Phillips: Well, I... no question about that, Justice Stevens.
Justice Stevens: Yes.
May I ask just sort of a basic question?
Normally when we have sort of a preemption here the railroads contribute something.
They pay a lot of money to do something, and in exchange they get the exemption from tort liability, but here it's rather odd, because as I understand from your brief the incentive to put in the safety devices for the railroads isn't... is not... tort liability doesn't provide a sufficient incentive, because the cost of installation exceeds their potential liability.
You say that in your brief.
And here it's rather unusual because the Government provides the money and with it provides total preemption and protection for the railroads, and the railroads get two benefits at no cost.
Mr. Phillips: But that... and the reason for that... I mean, it's not as though this is... I mean, the reason why there's no cost to the railroads is that there's no real benefit to the railroad because first of all, you know, having grade crossings does no benefit to the railroad.
If the railroad had its choice, it would close those roads so they don't go across the railroad, so that part of it, allowing them to keep going across doesn't provide any benefit.
The safety that you're trying to provide... and that's why the Federal Government doesn't require, and expressly limits the amount the railroads can be made to pay for these particular projects, because they recognize the beneficiary of this particular program are the people, are the users of the highway, not the users of the railroad.
But the reason why it ends up with the particular situation you've described, Justice Stevens, is the nature of the relatively unique statutory preemption under 201.06 in title 49.
There, Congress made it clear that when the Secretary has adopted a requirement, then that preempts State law, and all that the Solicitor General's position and the Court held in CSX was that in this particular context, with the funding that we've made, it was subject to the approval, that creates a requirement that triggers covering the subject matter under the preemption provision, which is how you end up there.
I think in that... I'm sorry.
Justice Breyer: Just on this, go back for a second to the regulation, (b)(4).
I take it that the problem has arisen because most of the time you're telling me everywhere but Tennessee.
Most of the time that the Secretary gives money, or at least a lot of the time, they'll use it to make signs, or they'll use it to make bells, or they use it to make gates or tunnels or something, and normally somebody in authority, whether it's Federal or State, considers that to be adequate.
But sometimes money is taken where we're just going to do this quickly, a quick sign, and we're not saying it's adequate, we're saying it's minimum, and here it's Tennessee that says that, and maybe they're the only ones ever to say it.
That's true, isn't it?
Have I got it right?
Mr. Phillips: Well, I mean, Tennessee said they wanted to have a minimum protection program...
Justice Breyer: Okay, so maybe nobody else ever does, but our problem is, it makes tremendous sense to preempt something, where somebody in authority has said this is adequate, so keep the private plaintiffs out of it.
It doesn't seem to make very much sense to do it when they're just saying it's minimum, but you're telling me that the regs say that, so that's what it is.
But as I look at the reg, the key reg would have to be (4)...
Mr. Phillips: (b)(4)...
Justice Breyer: (b)(4).
Mr. Phillips: Right.
Justice Breyer: (b)(3) doesn't apply.
Mr. Phillips: Right.
Justice Breyer: And it talks about whether the determination is made by State regulatory agencies, State highway, et cetera.
Well, why couldn't you say, the word determination there means the determination that this is adequate, as well as what it is, and so the reg, (b)(4), can... because you don't need that clause set off in commas, you know.
It can refer to giving the money, and obviously, if there's some determination that it's adequate, then you read it as preemptive, but if nobody's ever made a determination that it's adequate, it just doesn't preempt, or it doesn't apply.
It's talking about adequacy determinations.
It's talking about applying where there... could you read it that way?
Mr. Phillips: Well, Justice Breyer, the next line where you stop the quotation...
Justice Breyer: Yes.
Mr. Phillips: says, subject to the approval of the Federal Highway Administration.
Justice Breyer: Yes.
Mr. Phillips: So the initial determination of adequacy is made by those who are the closest to the situation, and they cover essentially the scope of individuals who would have information relevant to make the determination as to the adequacy of these particular devices, but all of that remains subject, ultimately, to the Secretary's approval, and if the Secretary's not convinced that these are adequate, and essentially that has to be...
Justice Breyer: This, I don't understand about how it works.
Suppose that Tennessee takes $ 43, $ 43,000, and it says, with this $ 43,000 we are going to make two signs at two crossings, and we tell you, this may not be enough, absolutely may not be enough, and they have to get the Secretary's approval.
Now, is the Secretary forbidden to approve it unless Tennessee says it's not adequate?
Tennessee said it's not.
We don't know if it is.
Mr. Phillips: Well, what is clear is that the Secretary is supposed to exercise discretion, particularly with respect to all 109, section 109...
Justice Breyer: Well, you have a 109 argument, but if I don't read 109 the way you read it, why don't I read the reg to say, where there's an adequacy determination by somebody in authority, you win?
Where there's no adequacy determination, 10... the (b)(4) does not bar anything.
Could I read it that way?
That's my...
Mr. Phillips: I don't think that would be... the scheme was designed to be comprehensive and, indeed, I don't read the... I don't read the...
Justice Souter: Wait, are you...
Justice Scalia: What is the word... doesn't it hinge on what the word determination means?
Mr. Phillips: Yes, that's right.
Justice Scalia: Well, how can you possibly read determination to refer to adequacy?
Where the requirement of 64... 646.214 be... are not applicable, the type of warning device to be installed...
Mr. Phillips: Right.
Justice Scalia: whether the determination is made by a State or regulatory agency is subject to the approval of...
Mr. Phillips: Right.
Justice Scalia: That word determination there obviously means the determination of the type of warning device to be installed.
Mr. Phillips: But Justice Scalia, the entire regulatory scheme is the (b)(3), (b)(4) scheme, and look at the beginning of (b)(3).
It says, adequate warning devices.
This is an entire effort... and the Court recognized this in CSX.
This is an entire effort to make sense out of a grade crossing situation that was a mish-mash of State and Federal law, and to provide a comprehensive solution to it which requires that the Secretary have ultimate control both in terms of making safety determinations, which comes out of 109, and this is an implementation of 109.
Justice Scalia: I don't deny that.
I am just focusing on whether the word determination in (4) refers to adequacy or refers to the type of device to be installed, and it seems to me it clearly refers to the type of device to be installed.
Mr. Phillips: Oh...
Justice Scalia: And if the State says, even though we think this device is not adequate, just between you and me, we're going to install it.
That has been the determination made by the State, and it would be subject to the approval of the Secretary.
Mr. Phillips: And that... to me that's the pivotal point, though, is the subject to the approval of the Secretary.
It means it's also subject to the disapproval of the Secretary on the basis that this is not adequate for the particular circumstance.
The fact that the States do an outstanding job and therefore don't implicate this problem doesn't mean that the Secretary doesn't necessarily have that authority and, frankly, the fact that Texas is here defending the State's job I think speaks volumes.
Justice O'Connor: And you say the Secretary has exercised it just by providing the funds, whether or not any particular review is made?
Mr. Phillips: Well, the Secretary receives whatever information the Secretary wants on a project-by-project basis if that's what he requires, and then has to sign... one of his delegees has to sign off on it, so yes, there has to be a determination under those circumstances.
I'd like to reserve the balance of my time.
Argument of Gregory S. Coleman
Chief Justice Rehnquist: Very well, Mr. Phillips.
Mr. Coleman, we'll hear from you.
Mr. Coleman: Mr. Chief Justice, and may it please the Court:
Justice Breyer, I'd like to begin with your question.
The main concern here is, what are you doing?
Why should we allow a preemption if you're just putting in crossbucks without any independent determination of whether that's good enough?
And the reason that that should not be a concern to this Court is that the respondents and the United States are attempting to get the Court to look at this particular aspect of the crossings program, when you go through and make sure that all the crossings have at least crossbucks.
What they're forgetting about is the rest of the crossings program.
Part 924 requires the States to have a prioritization scheme which collects astounding amounts of data about each of these crossings.
Chief Justice Rehnquist: Where do we find 924?
Mr. Coleman: It's in the same... 23 C.F.C. 6... part 924 generally describes the process by which you create, or collect the data about the crossings and then crunch it through, and you have a prioritization scheme.
It's basically a mathematical formula that collects data about these.
The railroads are required to give the States data.
The States collect their own data.
They crunch the numbers and they come up with a priority score for each crossing.
The States then, every year, look at all of the crossings and find where the crossings have the highest hazard risk.
Let's go and do active device conversions of those crossings, and that's what we do.
Now, in Texas, for instance, we get approximately $ 22 million a year for this program.
In Texas, we could go to every passive device crossing in the State and put in new crossbucks and what-not every single year and only use about a third of our money.
So if we did a State-wide crossings program, which we're actually getting ready to do another one to upgrade a lot of the crossbucks, we still have about two-thirds of our money to go down the survey and determine which crossings have the highest relative risk, where do we want to spend the money that we have to upgrade from crossbucks to active devices, and in Texas that's almost always gates and flashers, the (b)(3) type devices.
That's why it should not be a concern.
Justice Scalia: You mean to upgrade even where it's not required?
Aren't you... you're required to have that?
Mr. Coleman: We upgrade even where it's not specifically required by (b)(3).
Justice Scalia: Okay.
Mr. Coleman: We have in Texas about 12,000 public crossings.
Justice Breyer: What about number 8,617 on the list?
You say, gee, that's a concern, because you know, if you really look at it, it's not a great crossing, and people have been hurt there, and somebody would like to sue the railroad because they think the railroad should have done a better job itself, and why should the fact that you happen to put a crossbucks up when the plaintiff is going to say, that's woefully inadequate, stop the plaintiff from suing just because maybe 15 years from now you're going to get around to number 8,617?
Mr. Coleman: Well, Justice Breyer, that's ultimately the question in this case, who gets to decide that.
Justice Breyer: Yes, right, but I mean, you haven't relieved the concern by saying that that is what's there.
I mean, I'd be worried about it, and that's my basic question.
Mr. Coleman: The concern, and the concern expressed in Shots and Shanklin is that the States aren't doing a good job in prioritizing crossings and putting in active devices where the...
Justice Breyer: They're doing a great job.
The concern is, there's a limited amount of money, and number 8,617 on the list, woefully inadequate though it is, could be the railroad's fault for its woeful inadequacy, and that's what this plaintiff claims.
Mr. Coleman: That simply not the case in Texas or in other States.
Justice Breyer: You mean, there's no bad crossing way down on that list that the railroad's never in fault?
How would we know?
Mr. Coleman: I'm not saying that there are no bad crossings, but this program is nearly 30 years old.
We have 12,000 crossings.
We have approximately 4,500 crossings in Texas with active devices.
Texas has thousands of rural crossings that have very low priority index scores, but the types of crossings we believe, and the people at our Department of Transportation believe the types of crossings that absolutely require active devices under (b)(3) were covered long, long ago.
What we're talking about now is relative risk relating to vehicle traffic, train traffic, speeds of trains, and we simply go down the list each year and choose those crossings that have the highest risk, and then we convert them to active devices, and even if we did a State-wide project, we still have two-thirds of our money for that year to do that, so if you think about it...
Justice Stevens: I'm puzzled about one thing.
How does the outcome of this case bear on your ability to carry out your own program?
Does it matter which way we decide it?
Mr. Coleman: We think it does.
First of all, we think that this is an excellent Federal-State cooperation program that has worked well...
Justice Stevens: Federal-State without requiring any contribution from the railroads.
Mr. Coleman: It has worked very well.
Justice Stevens: Yes.
Mr. Coleman: The safety statistics have dramatically improved over the past 30 years, and fatality rates have plummeted during the time this project... program...
Justice Stevens: But wouldn't that happen no matter which way we decided the case?
Mr. Coleman: If the Sixth Circuit determination in this case is correct, that there must be a separate Federal determination regarding the adequacy of all the devices, we think that that will divert resources.
We, the States, are already doing these determinations.
Justice Stevens: But it will divert the railroad's resources.
It won't divert your resources.
Mr. Coleman: We believe it will divert Federal resources, because it will be the Federal Government that will have to make independent determinations.
The Federal Government will start sending out, or having to send out duplicative diagnostic teams, what-not.
That is money...
Justice Breyer: Suppose we just said, where nobody has said it's adequate, under those circum... nobody in authority has said it's adequate.
Under those circumstances, no preemption.
Would that meet your problem?
Mr. Coleman: I don't believe you can say nobody has said it's adequate, because in any given year... for instance, if Texas does a State-wide crossings program, it still has two-thirds of that money.
It looks down the survey list regarding the relative priorities and it makes a determination as to which crossings will receive active devices and which crossings won't.
That determination...
Justice O'Connor: Mr. Coleman, you seem to be arguing something contrary to what Mr. Phillips argued.
He seemed to be saying the Federal Government does make these determinations, and you seem to be saying they just make a blanket determination and we don't want them to make individual determinations.
Mr. Coleman: No, I think my...
Justice O'Connor: So how does the scheme work?
Mr. Coleman: Justice O'Connor, I believe my argument is entirely consistent with Mr. Phillips.
The States make the determination as an initial matter.
They are submitted to the Federal Highway Administration for approval under (b)(3) and (b)(4).
We believe that all of these programs are submitted under (b)(3) and (b)(4) and are submitted for approval and, as he noted, the fact that the Secretary approves most of these programs suggests that the Secretary does have confidence in the State's ability to evaluate these crossings.
Justice Scalia: I assume he can look through the statistics that you've generated as to the traffic, as to the nearness of high schools and all of that.
Mr. Coleman: Yes, Justice Scalia.
Justice Scalia: And on the basis of that determine that this is not a place that in his view requires an automatic signal.
Mr. Coleman: The Secretary has discretion to do as little or as much background check or updating of the State's numbers as he or she wants.
Justice Scalia: But he has no discretion as to whether or not approval is required.
If he does nothing, he approves?
Is that right or not?
Mr. Coleman: I believe that the regulation...
Justice Scalia: If he accepts it and gives the funding, does that mean that he approves?
Mr. Coleman: Under the regulations, the Secretary may approve, disapprove, the Secretary may qualify approval, the Secretary may condition approval on changes being made.
I believe the Secretary...
Justice Scalia: May the Secretary do nothing and just say, I... you know, may be good, may be bad.
I neither approve nor disapprove.
I am neutral.
Mr. Coleman: I don't think that Federal funds can be used unless there's an approval.
Justice Kennedy: Well, is that 23 U.S.C. 109 that says that Federal... which is at 40a of the appendix to the petition at the top of the page.
It says, no funds shall be approved for expenditure unless proper safety devices complying with safety standards determined by the Secretary at the time as being adequate shall be installed.
Does the intersection that's involved in this case, the Oak Church intersection, come within the ambit of the highways covered by 23 U.S.C. 109?
Mr. Coleman: There's some question about whether the text of that provision applies.
We believe that the spirit does, because the programs were brought together in the seventies.
Importantly, the Federal Highway Administration has never made any distinction between on-system or off-system crossings.
The States, when they submit projects, include both on-system and off-system for approval.
Justice Kennedy: On-system meaning a Federal aid highway or a highway affected under chapter 2?
Mr. Coleman: Yes, Justice Kennedy.
We believe that when the States make these determinations the Secretary is expressing approval of the devices.
Chief Justice Rehnquist: Thank you, Mr. Coleman.
Mr. Coleman: Thank you.
Argument of Thomas C. Goldstein
Chief Justice Rehnquist: Mr. Goldstein, we'll hear from you.
Mr. Goldstein: Mr. Chief Justice, and may it please the Court:
Our position, as several of the questions have identified, is that the Government did not determine that minimum protection devices would be adequate to protect the Oakwood Church Road crossing and, to put that in the language of the preemption provision of the Federal Railroad Safety Act, no Federal regulation or order, quote-unquote, covers the subject matter of the State law duty here, which is to provide an adequate warning under the circumstances at the crossing of the approach of a train.
Now, we are joined in that view both by the Federal Government, whose regulations or orders are involved, and also the testimony of the Tennessee State official who ran the program in question.
Justice Scalia: Now, the position... your opponents claim that the position that you're asserting here was not the position that you took in the court of appeals, is that correct?
Mr. Goldstein: I'm...
Justice Scalia: I mean, as to the outcome of course it is.
Justice Breyer: You're not representing the Solicitor General.
Mr. Goldstein: That's correct, I...
Justice Scalia: No, I thought it...
Mr. Goldstein: But I think Justice Scalia is correct.
He understands that.
Justice Scalia: Yes, I understand who you are.
Mr. Goldstein: No...
[Laughter]
Justice Scalia: And... now, I may be wrong about what's asserted in the opposing briefs, but I thought they asserted that with respect to you it's a new position as well.
They assert that.
Mr. Goldstein: I don't understand there to be any tension between our position below and here whatsoever.
Our position is that you have to... the Government has to have decided what's adequate here if it's going to cover the subject matter of a State law duty to provide an adequate warning.
Justice Scalia: No, but you go along with the Government's division of (3) and (4) into minimums and then those areas where you need on-site inspections to go above the minimums.
That's not the position you took below.
Mr. Goldstein: What we explained below is that this is a crossing, if you look at it in terms of (b)(3) and (b)(4), just... let's go to the regulations which are the only ones they're alleged to preempt here...
Justice Scalia: Right.
Mr. Goldstein: Is that at the very least, even if these regulations were applicable, they weren't complied with, because the district court explained that the conditions set out, if we could just turn to the cert petition 47a in the appendix, there's a list of six or seven conditions there, and what the district court said, and we supported that view on appeal, is look, these conditions existed at this crossing.
The State never went out and considered what were... what was the situation at the crossing, and so there was never a determination by the State that what happened here, that the minimum protection devices they installed were, in fact, adequate, and we're saying the same thing here, except we have even a brighter line that's suggested both by the opinion below and by the Solicitor General, and that...
Justice Scalia: Well, I mean, that comes to whether the money could have... can be given.
I thought that the money can't be given unless there are adequate warning devices.
Mr. Goldstein: And that is not correct, and let me just get right to the nub of it.
The... (b)(3) and (b)(4), as the Solicitor General has explained, don't apply to this crossing at all, and let me explain why.
What (b)(3) and (b)(4) are, are provisions that guide determinations of individual crossings.
You go out, you study your crossing with an expert team, and you look at these conditions in (b)(3), and if these conditions exist, then you have to put up lights and gates unless the engineering team tells you otherwise, and if these conditions don't exist, under (b)(4) the Secretary gets to decide what it is you're going to put up.
Justice Scalia: Now, do you need on-site inspection to determine whether (a), (b), (c), (d), (e) and (f) exist?
Mr. Goldstein: Yes.
That's the only way you'll ever know.
Justice Breyer: Why?
Why?
They go into some length saying, of course we could even decide if (b)(3) exists.
We have loads of material.
Mr. Goldstein: But...
Justice Breyer: We have all the statistics.
What do you mean, you have to go out and look?
We have pictures of it in our office.
I mean, what's to look.
Mr. Goldstein: But (b)(4) is the negative.
You... I can tell you, based on a statistical analysis, whether or not there are high-speed trains, sure, and they were here.
The trains traveled at a maximum speed of 60 miles an hour.
What I can't do, without going to the crossing, is make the judgment about these conditions all not being there.
You have to go out and study the combinations that are evaluated here, and in addition the most critical conditions aren't available to anyone, and that... without going out to the crossing, and that is...
Justice Scalia: Excuse me.
I don't... I really don't understand.
You're saying you can tell, sitting in your office, from this mass of statistics, that (a), (b), (c), (d), (e), and (f) exists.
Mr. Goldstein: Some of them.
Some of them, that there is...
Justice Scalia: Ah, not all of them.
Mr. Goldstein: That there are multiple mainline railroad tracks.
There's a piece of data about that.
Justice Scalia: But you can't tell that they don't exist.
Mr. Goldstein: No.
You cannot tell that other of the conditions do not exist, and the most particular example is the sight distance.
You cannot tell, just sitting in your office, and the State's hazard index does not evaluate whether a driver who comes up to the crossing can see the train in time to stop.
And let me just point you to the testimony about this, and what it is that the State actually was doing here as the delegatee of the Federal Government.
Tennessee's official who ran this program explained that when they put these minimum protection devices up they were not evaluating the conditions of the crossing.
This is in the red brief at pages 31 to 35, and I will point you just to...
Chief Justice Rehnquist: Well, I don't know that we would want to decide this case just on the basis of what an official said about this particular crossing.
Mr. Goldstein: Mr. Chief Justice, I understand that.
This testimony is about the Tennessee program writ large, what it is that they were doing under their minimum protection program, and let me just detour briefly to explain that Mr. Phillips is not correct when he says that this is somehow just unique to Tennessee.
As the Federal Government's brief explains, every single State in the country tracks separately and had separate minimum protection programs and a separate program dealing with adequacy.
Justice Kennedy: Well now, this crossing in question was identified as one of I think 196 crossings for which Federal funds were sought, and are you saying that the Secretary approved funds for inadequate safety devices?
Mr. Goldstein: Let me say first that it is, of course, more than 196.
196 were done at once, but there were actually...
Justice Kennedy: The 196 list included this one.
Mr. Goldstein: Yes.
Justice Kennedy: Included Oak Church specifically.
Mr. Goldstein: Yes.
Justice Kennedy: And the Secretary approved Federal funds for the installation of those devices there.
Mr. Goldstein: Yes.
Justice Kennedy: Are you saying that the Federal Government approved funds for the installation of inadequate safety devices?
Mr. Goldstein: Yes, and here is why.
Justice Kennedy: Can it do that?
Justice Scalia: And it's authorized to do that.
Mr. Goldstein: Yes.
Justice Scalia: And that's the SG's position, too.
Mr. Goldstein: Yes.
Justice Scalia: And since he's authorized to do it, I assume they're entitled to those funds whether or not he approves it.
Mr. Goldstein: And in fact there's a congressional mandate.
Justice Kennedy: And you say he can do that consistently with (b)(4), or that (b)(4) is simply inapplicable?
Chief Justice Rehnquist: Or its section 109.
Mr. Goldstein: Let me deal with two separate statutes and a regulation.
109, the only provision in question is 109(e), and the clause that Mr. Coleman was referring to you, there's a provision that says on every Federal aid highway you can only install adequate warning devices.
This is not a Federal aid highway, and I will point you to the supplemental lodging of the petitioner.
The last document in there explains that this is an off-system crossing.
It is a local, rural road, and it was not required to comply with 109(e).
Chief Justice Rehnquist: But the section also says not just Federal aid highway, or highway affected under chapter 2 of this title.
Mr. Goldstein: And chapter 2 is in the main things like Indian lands.
It doesn't apply here, if the Court goes and reviews chapter 2.
There's no allegation by the petitioner.
To return to Justice Kennedy, whether or not there's a statutory and regulatory authority for the Federal Government to approve minimum protection devices that are not adequate, it is in 23 U.S.C. 130(d), which is reprinted in the red brief at page 4 at the top.
It's the first block quote.
This is the statute that set up the hazard program that Mr. Coleman refers to that's in the regulations at part 924, and if I could again, while you're looking this up, detour briefly to note that the Court unanimously held in Easterwood that the program under which Mr. Coleman is relying was not preemptive.
It was just a way to rationalize the spending of Federal funds.
To return back to the statute, there are two things in it, and let me just briefly put this in context.
The Secretary of Transportation went to Congress in 1971 and 1972 and said, look, we've got a real problem.
We've got thousands upon tens of thousands of crossings that aren't protected.
We've only got so much money.
We think that you need to set out funding on an annualized basis so that we can protect more crossings every year, but in the meantime, we have to have...
Chief Justice Rehnquist: As I understand it, you're saying the section you just referred to, the quoted section on page... is the one that authorizes the Federal Government to contribute funds even where the situation is inadequate.
I don't see that in the language that you refer to.
Mr. Goldstein: Mr. Chief Justice, below... the last sentence, at a minimum...
Justice Kennedy: Would you please give me the page number?
Mr. Goldstein: I apologize, Justice Kennedy.
Page 4 of the red brief.
The first block quote, the last sentence.
130(d) says, at a minimum, such a schedule, which is the schedule of improvements, shall provide signs for all railway highway crossings.
That is, Congress said, at the very least, everything has got to have standard signs without regard to the conditions.
The next block quote is the Secretary's implementation of that.
Remember, I did stop to answer the Chief Justice's question.
This is implementing the Secretary's recommendation that we need to install adequate warning devices as Federal funds become available, but in the meantime, because that's going to take so long, we need a finger in the dike.
We've at least got to get standard signs up at every crossings, at every crossing.
And what Mr. Coleman doesn't tell you is that Texas every year upgrades only 150 of its 12,000 crossings.
Justice Breyer, you don't have to get down to number 8,617 to figure out that the State has not stepped in and determined what's adequate.
You can get down to number 1,000 or 2,000.
Justice Breyer: What's bothering me about your side of this is I suspect Justice Scalia was right, and you seem to agree with that, too, that it's pretty hard to read the reg (b)(4) as talking about... the way I wanted to read it, I think that's not really possible, so you just say, well, look, (b)(4) doesn't apply at all.
Mr. Goldstein: That's right.
Justice Breyer: Nor does (b)(3).
And what they come back and say, this is really amazing, here's a new program of the Department of Transportation we've never even heard about, but we're in the railroad business.
There seems, according to the SG and you, to be a program of handing out money to do this provisional thing.
Well, that's fine.
Have such a program, but... and write some regs for it, and don't say they don't preempt, but we've never heard of it up till now, so don't just bring it up for this case.
I mean, I think that's roughly... perhaps a little unfairly, but I think roughly that's what their case is... what they're saying.
Mr. Goldstein: Well, the truth of the matter is that every single State has this program, and every single State has taken money under it.
Justice Breyer: Well, are there some regs on this other program, for example?
Where are they?
Mr. Goldstein: There is a directive from the Federal Highway Administration.
It is the next block quote on the same page, and the directive explains, as... and I'm starting... you can start wherever you like in it, but I'll start at the beginning.
Section 203(a) of the Highway Safety Act of 1973, which is 130(d), requires as a minimum that each State's schedule of improvements shall provide signs at all crossings.
As a first priority, each State, in cooperation with the involved railroad and any other agency having jurisdiction, shall identify those grade crossings at which they are either no signs, or nonstandard signs, and institute an improvement program to provide signing and pavement...
Justice Breyer: I get that point, but does it say somewhere that (b)(4) doesn't apply to that kind of a program?
Mr. Goldstein: No, because (b)(3) is... and (b)...
Justice Breyer: Not (b)(3).
(b)(3) we're not talking about.
Mr. Goldstein: Just Breyer, if I could just...
Justice Breyer: Does it say somewhere (b)(4)...
Mr. Goldstein: point out, as Easterwood twice explains, (b)(4) is just... is triggered only by (b)(3).
It says, when these conditions in (b)(3) don't exist, then you go to (b)(4).
Chief Justice Rehnquist: Mr. Goldstein, the section you just read, which in your brief you say the Federal Highway Administration explained in 1974, and then it's cited FHMP.
Was this a regulation issued by the Secretary?
What sort of a thing was it?
Mr. Goldstein: It's the Federal Highway Program Manual.
Chief Justice Rehnquist: Can you answer my question?
Mr. Goldstein: It is not a regulation.
It is a program manual that is given as guidance to every single State on administering the Federal...
Chief Justice Rehnquist: Well now, that certainly doesn't have nearly the status that a regulation issued by the Secretary would.
Mr. Goldstein: As a matter of deference to the Secretary that may well be true, Mr. Chief Justice, but let me just tell you what really is at issue.
It is not a question of whether you should defer to the Secretary's interpretation.
You are being asked to say what happened, because this is over.
This program was administered by the Secretary from 1973 to the early nineties, and it's now done.
They're not asking for permission to do this going forward.
They're explaining to you what did happen in the seventies, eighties, and early nineties, and what they were doing...
Chief Justice Rehnquist: Well, how could something that was issued in 1974 explain what happened in the eighties or nineties?
Mr. Goldstein: Because this was the guidance that they issued, and this is the guidance...
Chief Justice Rehnquist: Well...
Mr. Goldstein: The regulation, for example, Mr. Chief Justice...
Chief Justice Rehnquist: Well, just a minute, Mr. Goldstein.
You said, as I understood it, that this thing that you quoted here explained what happened in the eighties and nineties, and I said how could it, when it was issued in 1974.
Mr. Goldstein: Just as the regulation was issued in 1975, this is the guidance that the agency gave in response to the statute, and it hasn't been repealed in any sense, Mr. Chief Justice.
That's what the States were supposed to do, and as the testimony collected here explains, that's in fact what the State did.
Justice Stevens, if I could also return to your question about, well, what would happen to Texas and to the other States if the railroad were to prevail.
The real answer is the... that State regulation and State decisionmaking about what's necessary to protect crossings would be preempted.
Texas... remember that the statute preempts all State orders, laws, or regulations.
This is section 201.06, the preemption provision at issue, and it would tell Texas they cannot regulate this crossing any more because they, like Tennessee, like every other State, spent Federal money to put out minimum protection signs without any indication that those signs would be adequate to protect the crossing.
What Tennessee did not do, and it is unquestioned that they didn't...
Justice O'Connor: Well, it wouldn't prevent the State, would it, from coming back later and saying this crossing deserves a better mechanism and we're going to use some of the Federal money, or at least propose to use it, to upgrade?
Mr. Goldstein: That would be the only way.
They could only...
Justice O'Connor: But that could be done.
Mr. Goldstein: They could, but for example, Justice O'Connor, what they could not do would be to come in and say, we've determined that several thousand crossings actually need a fourth or a fifth warning sign.
They can only act from henceforth as the delegatee of the Federal Government.
Their own independent decisionmaking and regulatory authority is displaced.
Justice Kennedy: You were saying that what the State did not do here was?
Mr. Goldstein: What they did not do is send out anyone on their own or on behalf of the Federal Government as the delegatee under the...
Justice Kennedy: Well, isn't that disputed by some later lodging, the Cantrell deposition?
Mr. Goldstein: There is one letter that is not in the record, but it does not dispute my point.
What (b)(3) would require, and this hazard program would require, is at the time you go out...
Justice Kennedy: I thought Farris was an employee of the Tennessee Department of Transportation, and he wrote that after he visited the crossing no signs were needed.
Why are you telling me that they... there was no visit by a State employee?
Mr. Goldstein: Justice Kennedy, what (b)(3) and (b)(4) require is someone go out and determine what warning devices are necessary.
The letter simply doesn't say what it is that you're... what your adverting to.
It is set forth in the supplemental lodging of the petitioner at the end of tab C, and what it says is only... there's a letter from a Congressman that asks Tennessee, is this high enough up on your priority program to spend the limited Federal funds available to install lights and gates, and he answers, this crossing does not have sufficient train-vehicle exposure to qualify for active warning devices.
He does not say that minimum protection devices would be adequate, and he doesn't say that we actually looked and decided what was necessary to protect this crossing.
Justice Scalia: Mr. Goldstein, you know, normally when we interpret a statute it's interpreted.
We don't come back and reinterpret it.
We go on to the next mistake.
Unidentified Justice: [Laughter]
Justice Scalia: What you have... what we said in Easterwood was this, and how does it fit in with your theory?
In short, for projects in which Federal funds participate, not...
Chief Justice Rehnquist: What page are you reading?
Justice Scalia: I'm reading on page 11 from... what I have is from lawyer's edition.
I don't...
Mr. Goldstein: 671 of the U.S. Reports.
Justice Scalia: For projects in which Federal funds participate in the installation of warning devices, not just those which involve Federal highways, the Secretary has determined the devices to be installed and the... has determined devices to be installed and the means by which railroads are to participate in their selection.
The Secretary's regulations therefore cover the subject matter of State law.
Mr. Goldstein: Justice Scalia, that is a description of how (b)(3) and (b)(4) work when it is applied.
You have to look at the eight sentences, the entire paragraph that precedes it.
It explains that when (b)(3) and (b)(4) are applicable, then the Federal Government won't send out the money unless they've determined that the warning devices are adequate.
Justice Scalia: For projects in which Federal funds participate is what it said.
It did not draw a distinction between those projects that involve Federal highways and those that don't involve Federal highways.
Mr. Goldstein: What I'm saying, Justice Scalia, is, the sentence that you are reading describes (b)(3)(b)(4).
It is not setting forth a rule of law, and I will give you an example.
If the Federal Government gave the petitioner a loan of $ 50 million and therefore Federal funds would participate in the installation of warning devices, the Court was not saying that would be preemptive.
What the Court is saying is, when the decisionmaking process set out in (b)(3) and (b)(4) is followed, when we do look at the crossings, then we really have done what the common law does.
We have gone out and determined what warning devices will adequately warn the individuals of the approach of a train, but when all you do is go to tens of thousands of crossings, and without regard to the circumstances simply stick up signs which warns that a track is ahead, not that a train is ahead, and you don't care at all what the conditions were at the crossing, then you haven't done that.
To return...
Justice Breyer: What is it, then... if (b)(4) doesn't apply to this minimal program, what requires the Secretary's approval for the minimal program?
Mr. Goldstein: Section 924, and the other regulations that simply deal with issuing Federal funds.
There are...
Justice Breyer: Is there something in some other regulation that says, for the minimal program you have to get the Secretary's approval to it?
Mr. Goldstein: It says... I apologize.
It says simply that if the Federal Government is going to spend money, the Secretary has to authorize the spending of the money.
Justice Breyer: What says that?
Mr. Goldstein: The part 924 regulations.
Justice Breyer: What's the regulation that says it for this other... well, maybe we'll... I'll look it up.
Mr. Goldstein: There is no reference to the... the difficulty is only that there is... it doesn't say, minimum protection program, but the only thing that would trigger (b)(3) and (b)(4), just to look again at its text...
Justice Breyer: Well, I think what they're saying is for 45 years we thought it governed the whole thing.
Argument of Patricia A. Millett
Chief Justice Rehnquist: Thank you, Mr. Goldstein.
Ms. Millett, we'll hear from you.
Mr. Millett: Mr. Chief Justice, and may it please the Court:
For 25 years, the Secretary has administered the minimum warning sign requirement in section 130(d), a congressional mandate, as a distinct program separate and apart from its regulatory scheme under (b)(3) and (b)(4) that determines what level of protection is adequate at an individual crossing to make it safe.
Justice Scalia: Ms. Millett, would this have been relevant to our decision in Easterwood?
Mr. Millett: Easterwood was so far beyond the minimum program... it was a situation where individual study had already been done...
Justice Scalia: Whether there are two programs, a minimum program and then some supplemental program, was certainly relevant to the preemption decision in Easterwood, wasn't it?
Mr. Millett: Well, it wasn't remotely at issue in the case.
It hadn't come up.
No one had addressed...
Justice Scalia: Well, it was at issue... it was relevant to the general issue of preemption and when preemption occurs.
Mr. Millett: There are an awful lot of highway programs that are covered and administered by the Secretary.
They weren't addressed.
Now, perhaps it would have been better for us to have spent some time discussing this in our brief in Easterwood.
We did, at the end of our discussion section, note that crossbucks have a special status, that crossbucks had a special status in the manual for purpose of preemption.
Justice Scalia: Did you...
Mr. Millett: We did do that in our brief, but we did not go on at length about this program.
But the issue is that we now are sitting here in the year 2000 looking back at what happened for 25 years...
Justice Breyer: Well, they're saying for 25 years we thought (b)(3) and (b)(4) governed this minimal... we're not saying there wasn't some minimal thing.
Maybe there was a minimal program.
But we thought it was governed, just like the whole rest of the program, by (b)(3) and (b)(4), so was there anything that made... you know, that says that wasn't so?
Mr. Millett: Absolutely, and the first thing is the practice of the State.
If, if they thought it was governed by (b)(3) and (b)(4), they would have to, as Texas' brief explains quite well, have sent out a diagnostic team to do an engineering study...
Justice Breyer: So they say sometimes you do, sometimes you don't.
Why do you have to send out a diagnostic team in Nevada to see if it's clear, for example, if there's 45 miles of track without a curve, and the same thing is true of the highway, and there's no mountain.
It's a desert.
I mean, why would you have to send out a team to show that there's nothing obstructing the view?
Mr. Millett: For purposes of a (b)(3) and (b)(4) determin... because you're not going to get the money from the Secretary unless you submit an engineering study of that individual crossing.
23 C.F.R. 924.9(a)(3) requires the engineering study.
The manual on Uniform Traffic Code devices says engineering studies will be done.
The Railway-Highway Grade Crossing Handbook, which all the States have, says the engineering study will be done.
You do not get funds under (b)(3)(b)(4) without going out, looking at the individual crossing, and deciding what is needed, not for minimum protection, but to make that crossing safe.
That is not what happened under the minimum program.
That was the normal operating procedure of the Department of Transportation, but when Congress said in 130(d) at a... this is going to take a long time.
It's going to... Congress... Texas has 11,500 crossings, do about 150 crossings a year.
It would take them 100 years just to get to every crossing and just to put up the minimum if they studied it the way you do for (b)(3)(b)(4).
Justice Breyer: They need the Secretary's approval...
Mr. Millett: That didn't happen.
Justice Breyer: for minimal program expenditure.
Mr. Millett: They need the Secretary's approval for that...
Justice Breyer: And what says that?
Mr. Millett: The... well, first of all, 23 C.F.R. part 630 addresses the general need for a Secretary's authorization for Federal funds.
Justice O'Connor: What...
Chief Justice Rehnquist: Where is that?
Justice O'Connor: Where do we find what you're talking about now?
Mr. Millett: I don't believe it's reproduced in the briefs.
It's just the general regulations governing... this is a big highway contract program.
The general regulations saying that you need Federal aid project authorization are at... reproduced at... are at 23 C.F.R....
Justice Kennedy: You see, this is why I have some sympathy for the railroad.
You're arguing that there's a separate program, and we don't even have the regulations in front of us.
Mr. Millett: It's not that it's a separate program.
That's the general requirement that to get money under a highway program out of the Secretary, it has to be authorized by the Secretary.
Justice Souter: Ms. Millett...
Justice Ginsburg: You're making a distinction between authorized and approval, then.
You say everything has to be authorized.
Mr. Millett: Uh-huh.
Justice Ginsburg: But approval relates to a specific crossing.
That's what you seem to be saying.
Authorize, the Secretary must authorize any spending of Federal funds, but the word approval has a narrower meaning, and it relates to a specific crossing.
That's what you seem to be saying.
Mr. Millett: Unfortunately I'm not even... that's... those aren't the words, either.
I don't mean to split on words.
Everything has to be authorized and has to be approved, but the question is, what was approved?
Did we approve under (b)(3)(b)(4) determination of what is adequate to protect an individual crossing...
Justice Ginsburg: But you authorized something.
You authorized...
Mr. Millett: Right.
Right.
Justice Ginsburg: the spending of Federal funds.
Mr. Millett: There's two things that we can approve.
We can approve an authorization under (b)(3)(b)(4) for funding to install the protective devices at a crossing that will make that individual crossing safe, based on individualized study.
We can also, pursuant to congressional mandate, authorize the installation of a fuller Federal protection...
Justice Souter: Okay.
Ms. Millett...
Mr. Millett: but it doesn't make it adequate, and this is... I'm sorry.
Justice Souter: No, I... finish your sentence.
Mr. Millett: I just want to say, this is... we have a directly different response to your question to Mr. Phillips, and that was does the Secretary have the ability to approve just a Federal minimum program that doesn't determine what is adequate, and that, yes we have the ability because Congress said so in 23 U.S.C. 130(d), so that is the exception to the normal rule.
The normal rule is, you want the money, you do an individualized study and show us what's going to make it safe.
The exception is the minimum protection program.
Justice Souter: All right.
Now, the problem that I have in drawing the distinction that you're drawing is this, and it's essentially the same problem that I have with your argument from 25 years of administrative experience.
In Easterwood, which was what, 7 or 8 years ago, this Court laid down... wisely or unwisely it laid down a preemption rule, and the preemption rule turned on the participation of Federal funds, and the formulation that the Court used, if I remember correctly, was just about exactly what the Solicitor General at the time said was the formulation we ought to use.
It seems to me that at that point the Federal Highway Administration had some kind of an obligation to say, if the Court means what it says in adopting the language which we told it to adopt, there's no longer a distinction between minimum programs under (d), whatever it is (d), and the subsection (3) and subsection (4) programs.
The Court has laid down a clear rule, and it turns on whether Federal money is involved.
Therefore, we better do one of several things.
We better revise our regs.
Maybe we better get statutory authority.
Maybe we better send more people out to look at the intersections.
But the truth is, there has been a simple rule, announced by this Court for 7 or 8 years ago, and I don't know why that does not trump the administrative experience that you refer to that preceded it.
Mr. Millett: Two answers.
First is, we don't read Easterwood as making everything turn on Federal funding and, in fact, the Court didn't.
There was Federal funding of the crossing.
It said it wasn't protected.
The question is... the question in Easterwood that this Court adopted I think was a quite pragmatic and correct rule that was consistent with our position here, and that is, was money spent to make an individual crossing safe?
They tried to argue in Easterwood, well, there was a grouping here of crossings, and that was enough to make it safe, and this Court said the program cast doubt on that, that the individual crossing hadn't been made safe with the Federal funds.
The second part...
Justice Souter: But there's no question that when the minimal sawbuck signs are installed the purpose of installing them is to make the crossing safe.
Mr. Millett: No...
Justice Souter: It may not succeed, but that's the purpose.
Mr. Millett: NO, it is not to make that crossing safe in the same way that State tort law makes that crossing safe, or any State law...
Justice Souter: No...
Mr. Millett: that makes a crossing safe.
It is to make it less unsafe.
Any interim...
Justice Souter: Okay.
That's what I meant.
It may not succeed in its objective, but its objective is clear, and that's why the money is being spent.
Justice Scalia: Ms. Millett...
Chief Justice Rehnquist: Do you distinguish between making a crossing safe and making it less unsafe?
Mr. Millett: Well, what... for purposes of (b)(3) and (b)(4) what adequate warning devices are, are designed to address what makes an individual crossing safe in the same way that State law had for hundreds of years before.
The question is whether that has been displaced.
When... in Easterwood you set up a rule that said, when there's been Federal funding on a particular crossing that makes that crossing safe, we will not allow... we'll have preemption because you don't want a jury second-guessing that federalized decision.
Justice Scalia: That might have been the holding, but that was not our general language.
Our general language was Federal funding, it's covered.
Can I ask you about (4)?
If there is this two-level thing, minimum plus, one would have expected (4) not to say, for crossings where the requirements of (3) are not applicable the type of warning device to be installed, whether the determination is made by a State, blah, blah, blah, blah, is subject to the... it makes it sound as though the determination of what warning device to be installed is up to the State, or you know, so long as it gets the approval of HW... FHWA.
You would think it would have said somewhere in (4), the type of warning device to be installed, so long as it meets the minimum requirements of 130 whatever it is, but it doesn't make any reference to the minimum at all.
It says, the type to be installed, as though it's entirely up to the State agency.
Why isn't there some reference to the minimum in (4)?
Mr. Millett: May I answer?
Chief Justice Rehnquist: Yes, you may.
Mr. Millett: Because (b)(3) and (b)(4)... (b)(4) is a direct outgrowth of (b)(3).
It is only focused on determining what is adequate to make a particular crossing safe under the circumstances and conditions of that crossing.
It has no application to the uniform floor of safety accomplished by the minimum program.
Rebuttal of Carter G. Phillips
Chief Justice Rehnquist: Thank you, Ms. Millett.
Mr. Phillips, you have 2 minutes remaining.
Mr. Phillips: Thank you, Mr. Chief Justice.
Obviously concerned that the Court may actually conclude that what it said is what it meant in Easterwood, the Government and the respondents have asked you to create an entirely different regulatory scheme, and that is a scheme that no one has ever seen or identified.
There is no regulatory footprints.
There are no regulatory fingerprints that even remotely suggest that there is a distinction between a minimum safety program and the (b)(3)(b)(4) adequate warning program which is the basis on which this Court decided preemption would turn in Easterwood.
And I would ask the Court to look at 130(d), which is the basis for the minimum safety program the Government identifies, and recognize that the language of 130(d), which is at 42a of the appendix to the petition, at a minimum such a schedule... it doesn't say anything about sites or anything.
The schedule has to provide for that, and the reason for that is, this is not a provision that creates an entirely new regulatory scheme.
If the Secretary had wanted to do so, it certainly would have been within the Secretary's discretion.
That's not the regulatory scheme that the Secretary adopted.
The one the Secretary adopted is the one the Court identified in Easterwood, and if it simply applies the language of Easterwood to this case, the outcome of this case seems to me to be foreordained.
Justice Ginsburg: that the floor is in the regulations, that there's no lack of statutory authority for the Secretary to do what Mr. Goldstein contends the Secretary did do?
Mr. Phillips: I think there's clearly statutory authority, and I think it's important to recognize that (b)(3) and (b)(4) are designed to implement 109, which is what's going to preserve the Government's ability to decide what safe, and what it's going to fund, and if the Secretary chooses to apply that in a different way, that's fine, but that's not the system that the Secretary employed in this particular case, and it's not the system the Court identified in Easterwood.
Justice Scalia: What do you do with the argument that 109 only applies to Federal aid highways?
Mr. Phillips: 109... well, first of all, there's a serious question about whether they intend that, but the bottom line about 109 is, the regulation still implements 109.
Adequate is adequate for both of those, otherwise you make a mish-mash, and they can spend money on things that the Government would regard as unsafe.
No basis for that.
Chief Justice Rehnquist: Thank you, Mr. Phillips.
The case is submitted.
