State law requiring American-made steel in public works projects upheld by 3rd Circuit
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The 3rd U.S. Circuit Court of Appeals has ruled that a Pennsylvania state law mandating that steel used in public works projects be made in the United States is not pre-empted by federal law or unconstitutional.
Mabey Bridge & Shore Inc., a Delaware corporation, argued that the Pennsylvania law barring the use of foreign steel on public works projects is pre-empted by the federal Buy American Act, which also says federal funds shall not be released for highway and transportation funding for road projects unless steel, iron and other products used in the projects are made in the U.S., according to the opinion in Mabey Bridge & Shore Inc. v. Schoch.
Mabey also argued the state law violates the Commerce, Contract and Equal Protection clauses of the U.S. Constitution.
Mabey challenged the state law because the company believes its temporary bridges would be exempted from the federal law: The federal law, it said, has an exception for highway and transit materials that include "no permanently incorporated steel or iron materials."
On that point, the court agreed, though that agreement had no bearing on the eventual ruling.
Judge Maryanne Trump Barry, writing in a opinion issued Jan. 25 and joined by Judges Thomas M. Hardiman and Franklin S. Van Antwerpen, said the Buy American Act did not pre-empt Pennsylvania's parallel law and "demonstrates Congress' intent to allow states to enact more restrictive requirements related to the use of domestic steel and, thus, that the Steel Act is not pre-empted."
"Congress was aware that individual states may have more stringent requirements than the Buy American Act, and specifically instructed the Secretary of Transportation not to interfere with those requirements," Judge Barry said. "Such an instruction is tantamount to congressional authorization for more stringent state practices to continue."
First Published February 6, 2012 12:00 am
