Marco Rubio Pushes to Block Low-Cost, High-Speed Broadband
The Intercept, 12/14/15
In a rare senatorial act, full-time Republican presidential candidate Marco Rubio joined a handful of fellow legislators on Friday in an attempt to block local municipalities from undercutting big telecom companies by providing cheap, fast internet service.
Rubio, who is raising campaign cash from the telecom industry for his presidential campaign, fired off a letter to the Federal Communications Commission asking the agency to allow states to block municipal broadband services.
ALEC and ACCE Pay-to-Play Meeting: in the Belly of the Beast in Scottsdale
Center for Media and Democracy, 12/14/15
Coverage of the recent meeting in Scottsdale including information on plastic bag bans and fracking preemption.
Conversations With: Federal Preemption vs. State Authority over Municipal Broadband
Washington Legal Brief, Autumn 2015
In this edition of Washington Legal Foundation’s Conversations With, the Chairman of WLF’s Legal Policy Advisory Board, Jay B. Stephens, directs a discussion with Federal Communications Commission (FCC) Commissioner Ajit Pai and General Counsel of the National Governors Association David Parkhurst, on an FCC order issued earlier this year that prohibits state governments from limiting municipalities’ broadband services. The Order, as the participants discuss, has serious implications for the constitutional concept of dual sovereignty and the federal government’s authority to regulate Internet services.
GMO labeling fix to be top priority in January, Stabenow says
Food-makers and agriculture interests are desperate for Congress to block a Vermont GMO labeling law from taking effect in July. However, negotiations on federal legislation bogged down over what Stabenow described as a disagreement over whether electronic disclosure of biotech ingredients should be mandatory.
The industry has been lobbying for Congress to use a year-end spending bill to enact a temporary provision that would preempt state labeling laws for two years.
We Can Regulate Guns at the Local Level, Too
The New York Times, 12/10/15
The primary legal obstacle to such local self-governance is not the Second Amendment, but the “pre-emption” laws adopted in most states over the past few decades, largely in response to pressure from the National Rifle Association. With varying stringency, these laws limit or prohibit cities from passing their own gun regulations. But now that the Supreme Court has clearly recognized a right to keep and bear arms, handgun bans are off the table and states are free to modify or eliminate unnecessary requirements of uniformity among their municipalities. And they should.
Ind. AG Asks FCC For Help On Lifeline 911 Fee Fight
Indiana’s state attorney general pushed the Federal Communications Commission on Monday to give some guidance on whether the agency believes federal law preempts state 911 fee collection for customers of a subsidized phone service program…
TracFone Wireless, which is facing a suit from Indiana, filed a petition in October 2014 asking the FCC to rule that state laws and regulations that impose 911 taxes and fees on low-income Lifeline subscribers who receive non-billed wireless service through the program violate the Communications Act.
How the gun lobby outsmarted itself and helped engineer its big Supreme Court defeat Monday
The Washington Post, 12/8/15
At its urging, the Illinois legislature gave the cities and towns of the state 10 days to pass assault-weapon and other gun legislation before barring such laws entirely at the local level, a preemption strategy long backed by the National Rifle Association.
Federal judge dismisses lawsuit over Va. uranium mining
Richmond Times-Dispatch, 12/2/15
A federal judge has dismissed a lawsuit against Gov. Terry McAuliffe and other state officials that challenged the state’s moratorium on the mining of uranium…
He said Congress did not intend to expand federal pre-emption to “materials outside the (Nuclear Regulatory Commission’s) regulatory authority.”
“The statute’s text and history clarify that the NRC’s agreement is neither conceived nor necessary for a state to regulate a material or activity traditionally … under its authority and not the NRC’s…”
In a joint statement on Wednesday, three community organizations opposed to uranium mining celebrated the decision.
“The court correctly dismissed (Virginia Uranium’s) tortured attempt to extend the Atomic Energy Act beyond its proper bounds and upheld Virginia’s authority to regulate uranium mining as it sees fit,” said Will Cleveland, staff attorney at the Southern Environmental Law Center.
You Can’t Say It’s “Organic” If It’s Not re: Food Labeling Law
The National Law Review, 12/15/15
The Supreme Court of California recently ruled that the federal organic labeling program does not preempt a claim under California state law that a certified organic grower intentionally mislabeled conventionally grown produce as organic…
The Court found that there was a strong presumption against preemption where state consumer protection laws regulate deceptive food labeling. The Court said that regulation of food labels was an area of traditional state concern and therefore a finding of preemption must be based on clear and manifest evidence of a contrary congressional intent.
Colorado Supreme Court hears both sides in cities’ fracking cases
Attorneys for the cities of Longmont and Fort Collins made their pitches to the Colorado Supreme Court on Wednesday about why lower courts erred in striking down the cities’ respective bans on fracking within their borders.
The Longmont and Fort Collins cases were heard separately in back-to-back proceedings in front of a packed courtroom. But the two cases are largely regarding the same central issue: whether home-rule cities are pre-empted from prohibiting a practice that is regulated by the state…
In addition to fracking bans, though, both sides Wednesday said the Supreme Court’s rulings in the Longmont and Fort Collins cases could have implications that impact far more industries than just oil and gas as it relates to what authority local jurisdictions have to enact rules that go against state law.
Longmont’s fracking ban due before state supreme court
Longmont voters added the ban to the drilling method, also called fracking, to the City Charter in 2012, convinced that a city-negotiated set of regulations on oil and gas drilling didn’t go far enough.
Both the regulations and the ban brought lawsuits from the Colorado Oil and Gas Association, an industry trade group…
The suit on the charter ban, however, has progressed through district court and the Colorado Court of Appeals and is now before the Colorado Supreme Court.
The city has argued that the state allows for local control, that Longmont voters should be able prohibit a type of drilling in city limits…
HB 191, which contains a preemption clause that removes any local authority to regulate the “exploration, development, production, processing, storage, & transportation of oil & gas,” has passed two committees in the Florida House of Representatives. Fracking ordinances have been adopted by cities across the state, and, “The Florida League of Cities has been lobbying lawmakers to change the bill. Rebecca O’Hara, a lobbyist for the association, said there have been ‘productive meetings with the bill’s sponsors’ about changing the language” ahead of the 2016 legislative session which begins in January.
State control may be cut from oil bill
Fracking bill that trumps local control passes House committee
Naples Daily News, 12/2/15
Estero fracking ban clears hurdle
Maui Anti-GMO Law Not Federally Preempted, 9th Circ. Told
A Hawaii citizens coalition told the Ninth Circuit on Monday that a federal district court was wrong to upend a Maui County ordinance that halted the growing and testing of genetically modified crops until there is more research on the safety of such tests, arguing that she was wrong to find the ordinance preempted by federal law.
The group, which includes The Shaka Movement, which backed the Maui county ordinance, argued to the appeals court that the ordinance is not preempted by the Plant Protection Act because that statute does not address genetically engineered plants.
They argued that the PPA only curbs counties from regulating the spread of “plant pests” and “noxious weeds,” and that genetically engineered plants do not fall under those categories as defined by the U.S. Department of Agriculture, according to the group’s brief.
On Dec. 14, the Indianapolis City-County Council voted to adopt Proposal No. 228 requiring “a person who owns or possess a firearm that is lost or stolen to report it within 48 hours.” Opponents argue that the ordinance is preempted by Indiana’s state preemption of local firearms regulations, and are asking Mayor Greg Ballard (R) to veto it.
Gun Guy: New Indy Firearm Law Is Illegal
Indy stolen gun ordinance up for vote tonight
Indy Star, 12/14/15
Grassroots Healthiest Ames pushes for e-cig ban
Ames Tribune, 12/5/15
A letter being circulated by members of Healthiest Ames is asking the Ames City Council to revisit the issue of banning electronic smoking devices in all places that other forms of tobacco use are currently not allowed…
Councilman Chris Nelson said the council is also waiting for decisions by other government entities…
Some of the council’s hesitation may come from a previous council’s decision that banned the usage of tobacco in public venues that later resulted in a lawsuit. The Ames City Council enacted a smoke-free law in 2001. In response, a lawsuit was filed claiming that the ordinance was pre-empted by state law. The case eventually went to the Iowa Supreme Court where the court ruled against the city on the grounds that Iowa law does not allow local governments to adopt stricter ordinances.
Vigil held outside Capitol calls attention to gun violence in Nebraska
Lincoln Journal Star, 12/11/15
Gailey also spoke of her concerns with LB289, a preemption bill that would nullify all local gun ordinances in Nebraska, leaving only statewide gun laws valid.
In Lincoln, Gailey said, this would erase an ordinance that keeps people convicted of stalking, possessing explosives, impersonating police officers and other misdemeanors from possessing a gun within city limits. She said the bill also would get rid of Omaha’s gun ordinances, including handgun registration and requirements for a permit to open carry.
Letter: UNM disregards impact of oil and gas extraction, pushes to remove regulations
UNM Daily Lobo, 12/6/15
An opinion letter denouncing the failed oil and gas preemption bill filed this last session (HB0366), warning of similar future preemption bills in New Mexico’s legislature, and supporting local control of oil and gas ordinances.
La Pine repeals marijuana dispensary tax
The Bulletin, 12/10/15
The City Council voted unanimously Wednesday to repeal a sales tax on medical marijuana dispensaries with a lawsuit looming from one of the businesses within the city
Green Knottz, a dispensary in La Pine, filed suit against the city Dec. 2, stating that the 5 percent tax couldn’t be enforced because it doesn’t comply with state law.
Alfalfa farmers reach settlement over Jackson County’s GMO ban
Mail Tribune, 12/7/15
A proposed settlement of a lawsuit against Jackson County’s ban on genetically engineered crops would allow continued growing of Roundup-ready alfalfa if it has already been planted.
Farmers with the genetically modified or GMO alfalfa would have an eight-year period where they could grow their crops under the terms of the settlement…
The settlement must be approved by Jackson County Commissioners and federal Magistrate Mark D. Clarke, who earlier ruled that Jackson County’s ban on GMO crops did not violate Oregon’s Right to Farm Law.
Kelsey wants AG opinion on Nashville Fairgrounds’ gun show ban
Nashville Post, 12/10/15
Senate Judiciary Committee Chairman Brian Kelsey (R-Germantown) requested an opinion today from Tennessee Attorney General Herbert Slatery regarding the legality of banning gun shows from publicly owned fairgrounds. The Nashville Metropolitan Fair Commissioners Board recently voted to ban gun shows at the city’s publicly owned fairgrounds. Kelsey said the action potentially runs afoul of local, state, and federal laws.
“Tennessee law is clear that local governments cannot regulate the sale of arms,” said Senator Kelsey. “The Metro Fair Board action is a thinly disguised effort to impose a liberal gun control agenda and deny citizens their Second Amendment rights.”
The Tennessee preemption statute prevents localities from enacting any new laws regulating the use, purchase, transfer, taxation, manufacture, ownership, possession, carrying, sale, acquisition, gift, devise, licensing, registration, storage, and transportation of firearms and ammunition. The statute also preempts any existing local law, ordinance, or regulation concerning firearms, ammunition or their components.
State preemption law on line this Friday in Seattle gun tax challenge
A hearing this Friday in King County Superior Court on a lawsuit challenging Seattle’s so-called “gun violence tax” puts Washington state’s preemption law on the line once again, and a Seattle Times editorial published late Tuesday supports the tax, which opponents say ignores and tries to circumvent the intent, and the letter, of the law.
Proposed state legislation would devastate historic preservation, critics say
Wisconsin State Journal, 12/10/15
A proposal by state Republican lawmakers to enhance property owners’ rights would devastate historic preservation efforts in Madison and across the state, critics say.
A sweeping bill by Rep. Rob Brooks, R-Saukville, and Sen. Frank Lasee, R-De Pere, would prohibit municipalities from designating properties as historic landmarks without consent of the owner. And it would ban municipalities from requiring or prohibiting any actions by owners related to preservation of the historic or aesthetic value of the property without owner consent…
The language is part of a larger bill “designed to make it easier for landlords to provide Wisconsin residents with quality housing,” according to a co-sponsorship memo circulated by the sponsors. The legislation, AB 568, offers a series of changes to tenant-landlord law, including a ban on municipalities from establishing routine apartment inspection programs and prohibiting municipalities from licensing or registering owners or managers of residential rental properties.