Case: 25-1922 Document: 83 Page: 32 Date Filed: 09/24/2025
Page 31
1 agencies. It was not meant to preempt the field. Again, the
2 Seventh Circuit said this in the American Agriculture case.
3 And as we point out in our brief, really, if you're looking at
4 a single statutory provision that's supposed to do some
5 preemption, that's an express preemption argument. They're not
6 arguing express preemption. Nobody has ever argued express
7 preemption here, and we have this Court in Farina rejecting
8 field preemption where an agency in that case, the FCC had
9 exclusive authority to do something.
10
So it's not unprecedented, and when you look at the
11 legislative history for this, you have, you know, legislators
12 saying what we're really concerned about is field preemption,
13 the language they use in the conference report that both
14 parties cite is substantive state laws that are contrary to or
15 inconsistent with federal law are preempted. That's classic
16 conflict preemption.
17
And so I think for those reasons, we would say no
18 field preemption here, and I mentioned the lack of a
19 comprehensive scheme. They don't even try to do that sort of
20 classic field preemption analysis. This is not like, in-air
21 flight operations, or nuclear power plants or anything like
22 that. There's no comprehensive scheme. Kansas versus Garcia
23 tells us these are rare cases of field preemption. This is not
24 one of them.
25
And then lastly, Your Honor, I would just say I guess
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