Saving Savings Clauses from Judicial Preemption

45 Pages Posted: 29 Aug 2007

See all articles by Sandra B. Zellmer

Sandra B. Zellmer

University of Montana - Alexander Blewett III School of Law

Date Written: August 29, 2007


Savings clauses can be found in an array of federal statutes governing public health, welfare, and environmental quality. Like explicit preemption provisions, the function of a savings clause is to differentiate the boundaries of federal and state authority. Unlike preemption clauses, however, savings clauses strike the balance in favor of the states and state law remedies. Despite the existence of savings clauses, many of the Supreme Court's recent preemption opinions have invalidated state laws that are more stringent than the federal regulatory threshold, based on a crabbed interpretation of statutory language, a myopic view of congressional purposes, or both. Even in areas within the states' traditional police powers, industries and developers have been extraordinarily successful in asserting federal preemption to eliminate burdens imposed by state programs.

This article seeks to identify preemption patterns and principles from the Supreme Court's caselaw on statutory savings clauses. A comparison of caselaw in four areas - pollution, workplace safety, products liability, and agricultural activities - indicates a judicial willingness to provide some redress to injured persons through state tort law but, at the same time, an underlying bias against protective state regulations. The disparate treatment cannot be explained by distinctions in the terms of the savings clauses themselves; the text is so similar that not even the "most dedicated hair-splitter" can distinguish them. Rather, the Court apparently views positive state enactments and regulatory regimes as a greater threat to the implementation of federal programs. As a result, broad spheres of activity have been left unaddressed where state regulation is prohibited but federal regulation is minimal or absent, and, in some cases, citizens are even worse off than they were before the advent of federal laws protecting human health and the environment. The article concludes that, if savings clauses were given appropriate weight in the regulatory context, as they generally are in the common law context, a pattern of cooperative, polyphonic federalism would be more likely to emerge, as state and federal entities would be motivated and empowered to capitalize on each of their institutional strengths and to craft coordinated regulatory solutions.

Keywords: Federalism, Preemption, Regulation, Tort, Statutory Interpretation

Suggested Citation

Zellmer, Sandra B., Saving Savings Clauses from Judicial Preemption (August 29, 2007). Available at SSRN: or

Sandra B. Zellmer (Contact Author)

University of Montana - Alexander Blewett III School of Law ( email )

Missoula, MT 59812-0002
United States
406-243-6653 (Phone)


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