Grassroots Change
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Preemption Takes Center Stage in 2015

November 7, 2014

A New Do-Nothing Congress
Peter Orszag, Bloomberg View, Nov. 4, 2014

As hard as it is to imagine, the newly elected Congress may be even more ineffective than the current one. The reason is that one party will control both houses of Congress, while another holds the White House. Even if Congress manages to pass substantive legislation, much of it will likely be vetoed by President Obama.

graphic2013And as Congress (and many state legislatures) become less productive and responsive to their constituents, grassroots movements and local legislation become increasingly central to the future of America’s health and safety.

But as communities take control of their own health and safety, many face resistance in the form of state preemption. The opposition to public health – with its power centered in state capitals and Washington – is countering grassroots progress with preemptive laws that strip local communities of their authority on a growing range of issues. And in the next year, this trend will continue to grow.

Grassroots Change anticipates facing the following preemption threats in 2015:

Fire Prevention (Residential Fire Sprinklers)
Over the past 30 years, more than 360 communities have adopted local laws requiring fire sprinkler systems in all new homes, including single-family homes. In response, the homebuilding industry has successfully promoted preemption in 13 states. As more communities pass sprinkler ordinances in 2015 and beyond, state preemption continues to pose a threat to local progress.

Since the Arizona legislature preempted local authority over low-nutrition meals containing toys (e.g. Happy Meals), the National Restaurant Association and others have promoted state preemption of local nutrition and food policies, including authority over the disclosure of genetically modified organisms (GMOs) in food products, and the sale of GMO seeds. In 2015, advocates should anticipate the introduction of state proposals ranging from the preemption of local soda portion limits to the complete elimination of local authority over food and nutrition policy.

The explosive growth of fracking to extract gas and oil from shale rock has spurred the rapid growth of grassroots movements opposing fracking in California, Colorado, New York, Texas, and other states. Among public health and safety issues, fracking is unusual because the primary mechanism for regulating or banning fracking is zoning, one of the most fundamental areas of local control. As a result, advocates have succeeded in using legal strategies to counter state preemption. In Pennsylvania, the state Supreme Court invalidated state preemption of local authority to regulate fracking. In 2015 and 2016, the oil and gas industry will seek to expand state preemption while public health and environmental advocates will employ ballot, legal, and policy strategies to protect local authority.

Gun Violence
Following in the tobacco industry’s footsteps, the gun lobby has preempted all or most local firearm laws in 46 states. In the handful of states without preemption, such as California, strong gun laws have been adopted at both the local and state levels.

Having succeeded with the typical forms of preemption in most states, the gun lobby has moved on to “super-preemption,” whereby local elected officials could be sued for adopting gun violence prevention laws. In October 2014, Pennsylvania adopted legislation that allows organizations like the National Rifle Association to sue local officials and municipalities, and if successful, obtain attorneys fees (a cost born by taxpayers). Expect more super-preemption to be introduced in 2015.

Paid Sick Days & Minimum Wage
Residents of San Francisco passed a paid sick days referendum in 2006. Today, workers in three states and 16 cities, including Seattle, New York City, and Portland can all earn paid sick days. These local wins have not gone unnoticed. Eleven states, including Arizona, Florida, Indiana, Kansas, Mississippi, Tennessee and Wisconsin, have adopted laws that ban any city or county from establishing a guarantee to earn paid sick days. In 2014, state preemption failed in Pennsylvania, South Carolina and Washington, but preemption bills are expected in more states in 2015.

The last increase in the federal minimum wage was in 2009. However, Connecticut, Hawaii, Maryland and other states have enacted minimum wage increases, and at least 11 local governments have begun setting their own minimum wage rates. However, Florida, Oklahoma, Pennsylvania, Rhode Island and Texas are among the 19 states that have enacted laws preempting local minimum wage increases. Minimum wage preemption policies are on the agenda of both ALEC (the American Legislative Exchange Council) and the American City Council Exchange in preparation for stepped-up 2015 efforts to stop local governments from raising their minimum wage.

Since the late 1980s, the tobacco industry has considered state preemption its highest priority for undermining both the grassroots tobacco control movement and local authority to adopt smokefree laws protecting workers and the public. However, nine states have repealed preemption and grassroots movements have successfully countered dozens of new preemptive proposals.

In 2015 the tobacco industry will continue to promote state preemption, while public health advocates campaign to cover workers who remain unprotected from secondhand smoke, including casino workers. The tobacco industry will also aggressively promote state preemption of local ordinances regulating the sale and use of e-cigarettes to undermine the growing movement to cover e-cigs under new and existing smokefree ordinances.

Broadband Access
Cities in at least 20 states are considering – and in a few cases implementing – municipal broadband projects. Focused on providing high-speed Internet service to their communities, they are competing with a handful of large telecom corporations. These powerful corporations are pushing states to preempt local authority to establish such services.

To follow state preemption, and participate in the conversation, join the Preemption Watch LinkedIn group.