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Preemption Update – The Rising Tide Revisited

November 17, 2015

In November 2014, we posted our state preemption predictions for the 2015 legislative sessions. We based our predictions on the history of state preemption strategy and on trends in preemption legislation filed or adopted in 2014 and earlier. We also considered past experience with industry lobbyists and front groups, as well as preemption-friendly politicians.

Our forecast was correct, and the opponents of local control were aggressive in introducing and promoting preemptive state legislation on dozens of issues. Yet advocates for public health, safety and workers succeeded in slowing and stopping preemptive proposals in many states.

In seventeen states and Congress, at least two public health preemption bills were introduced, with Texas alone accounting for dozens of bills filed and considered (for more info read our blog post “Ground Zero: Preemption in Texas”). In another twelve states, at least one preemption bill was filed.

Agriculture, guns & knives, paid sick days (often covered in bills which also would preempt local minimum wage increases and other employee benefits), LGBTQ discrimination, oil & gas, and a wide range of environmental protections were the most common targets of preemption. But perhaps the newest trend was exemplified by several bills in Texas and other states that sought blanket preemption of all local authority over any topic already addressed at the state level, further limiting local control and democratic processes across public health, safety, and social justice.

Broadband Access

Municipal broadband preemption legislation was filed in Missouri and is currently pending in committee. Although North Carolina and Tennessee had previously adopted municipal broadband preemption, the Federal Communications Commission overruled (by preempting state preemption) the two states’ broadband preemption statutes.

Food

Legislation preempting state authority to mandate GMO labeling was passed by the US House of Representatives and is pending in the Senate Committee on Agriculture, Nutrition, and Forestry.

State lawmakers are asking Congress to oppose the legislation.

Fracking

Legislation preempting all local authority over oil and gas drilling, transportation, disposal, and related activities, including hydrofracturing, were adopted in Texas and Oklahoma. Texas’ oil and gas preemption bill was introduced and adopted in response to the growing grassroots movement in Denton, TX and elsewhere to regulate or ban fracking locally. Similar bills were introduced in Florida and New Mexico but have died or stalled in the legislative process.

Gun Violence

The most notable trend in the area of firearms and ammunition was the increase in so-called “super-preemption” legislation. Super-preemption allows individuals or groups who would otherwise lack “standing” to sue local governments and, in some cases, individual local officials, for enforcing local firearms laws preempted by the state.

In North Carolina and Nevada, firearms super-preemption legislation was signed into law, joining Pennsylvania, Tennessee and Wyoming, which adopted such legislation in previous years.

Firearms super-preemption bills were also filed in Arizona, Iowa, Michigan and Texas.

The super-preemption statute in Pennsylvania was overturned in court based on a finding that it was inconsistent with the single subject requirement of the state constitution. State Representative Mark Keller (R) is planning to re-introduce a super-preemption bill that is intended to be consistent with the single subject requirement.

Our colleagues at the Law Center to Prevent Gun Violence track and analyze state firearms laws, including preemption.

Paid Sick Days & Minimum Wage

Paid Sick Days preemption legislation was filed in a number of state legislatures. Some bills focused exclusively on Paid Sick Days while others included preemption of local minimum wage increases, employee benefits, and other workplace protections.

Legislation preempting local Paid Sick Days mandates was passed and signed in Michigan and Oregon.

Bills were also filed, but not passed, in Alabama, Minnesota, New Jersey, New Mexico, Pennsylvania, and South Carolina.

The Missouri, Montana and Virginia legislatures passed paid sick days legislation that was ultimately vetoed by the governor. However, in Missouri, the legislature overrode Jay Governor Nixon’s (D) veto.

Arizona’s HB 2280, which was passed in 2013 and would have preempted local ordinances mandating paid sick days, minimum wage increases and other employee benefits, was found invalid under a 2006 voter-approved initiative that raised the state minimum wage and also specifically authorized localities to set their own, higher minimums, and “a 1998 voter-passed constitutional amendment that prohibits lawmakers from changing anything approved by voters without a three-fourths vote of the House and Senate.”

Residential Fire Sprinklers

Laws limiting or eliminated the authority of local governments to adopt requirements for the installation of residential fire sprinklers in townhouses and single-family dwellings (typically in the form of local building code amendments) were adopted and signed by the governors in both Tennessee and Nevada.

Tobacco

Bills preempting local ordinances regulating e-cigarettes were filed in 2015 in Pennsylvania and Wisconsin. In Florida, a bill to preempt local e-cig ordinances (HB 169) was introduced but died. E-cigarette preemption was adopted and signed by the governor in Arkansas.

Other issues

Bills were filed or passed in several states to preempt local non-discrimination ordinances. Some of these targeted local LGBTQ protections, while others targeted local policies prohibiting landlords from discriminating against tenants due to the source of their income or reliance on housing vouchers.

Bills were filed in six states to preempt local ordinances regulating knives, and the states’ governors ultimately signed half of these into law. Most of the proposed and adopted knife preemption statutes were inspired by similar state firearm preemption laws which have already been adopted in 43 states.

Related: Interactive infographic: State preemption in 6 health and safety issues