Revitalizing the presumption against preemption to prevent regulatory gaps: Railroad deregulation and waste transfer stations

Railroads are operating waste transfer stations in their rights of way without any governmental oversight, despite the fact that solid waste management and disposal has long been regulated at the state and local level. This incongruous situation is the result of railroads' aggressive litigation campaign to preempt generally applicable laws under a federal statute designed to deregulate rail economics This phenomenon illustrates new uses of preemption doctrine by regulated entities, and some agencies, as a shield against state regulation even when there is no effective federal regulation to fill the gap Restrained preemption jurisprudence is a necessary counterweight to regulatory voids, as Congress cannot anticipate all creative legal arguments that urge preemption based on unclear statutory language, is often imprecise when defining the scope of preemption provisions, and does not readily revise statutes to correct erroneous judicial interpretations. Courts must therefore have a primary role to ensure that preemption is not unintentionally overextended to the detriment of health and safety regulations. However, the courts' declining use of a presumption against preemption of police power laws has upset the delicate balance between federal and state interests. With a view towards restoring the presumption against preemption, this Article criticizes past attempts to ground it upon historical areas of state regulation, and suggests grounding it upon a line of Supreme Court cases that use regulatory gaps to mark the plausible limits of congressional intent to preempt. This proposed revival of the presumption against preemption also draws support from constitutional limitations on Congress's powers to veto state laws. George Parisek wonders what's in the dust clouds that spew from the giant trash heap near his home in North Bergen. "There are times it looks like a fire, there's so much dust, " says Parisek, a retired mechanic. "I grow tomatoes and peppers, and this stuff is all over them. This drives in e crazy. " He and the neighbors constantly hose down their houses, their cars and their gardens to wash away the grime. And they wonder: Is it dangerous to breathe this stuff? Should they let their kids play in the yard? Should they eat the vegetables they grow in their gardens?.