January 15 Preemption Watch Newsletter

• Ellen Bravo, Director, Family Values @ Work
• Carter Headrick, Director, State and Local Obesity Policy, Voices for Healthy Kids, American Heart Association
• Bronson Frick, Associate Director, Americans for Nonsmokers’ Rights
• Mark Pertschuk, Director, Grassroots Change
• Michael Bare, Program Manager & Policy Analyst, Preemption Watch

The RFF toolkit confirms that the public knows little about preemption, but is shocked at the current level of state interference with local authority to set higher health, safety and human rights standards than those at the state level.

Key findings included in the Rockefeller Family Fund toolkit include:

Read our blog post here, and download the RFF toolkit.

National 

States watch as toxic bills move through Congress
The Bulletin, 1/12/16

Senators clear the air on “early preemption” under the Senate TSCA reform bill
Environmental Defense Fund, 1/5/16

Understanding Preemption in the Lautenberg Act
Environmental Defense Fund, 12/21/15

Senate Approves TSCA Reform
The National Law Review, 12/18/15
On December 17, 2015 the Senate passed the “Toxic Substances Control Act Reform Bill,” S. 697. The first link above contains excerpts from the Congressional Record of a discussion of “one of the most contentious – and widely misunderstood – provisions of the Senate bill:  the extent to which it would preempt states from acting during review of a high-priority chemical by the Environmental Protection Agency.”

Tucson leader: Obama’s executive actions could lead to changes at local level
Tucson News Now, 1/5/16
The City of Tucson may file legal challenges to HB 2527, passed in 2015, which preempts local ordinances regulating the transfer of firearms. President Obama’s recently announced executive orders regarding firearms may impact preemption in a number of states beyond Arizona as well.

Federal challenges, local control dominate year in litigation
Energy Wire, 12/22/15
An oil and gas industry review of federal and state litigation in 2015.

GMO labeling fight set to rekindle in January
AgriPulse, 12/16/15

Congress Keeps Anti-GMO Labeling Rider Out of Spending Bill
EcoWatch, 12/16/15
Although GMO labeling preemption was averted in 2015, it will almost certainly be a threat early in 2016.

California

Oakland Approves Law Banning High-Capacity Gun Magazines
SFist, 1/6/15
Following President Obama’s Tuesday press conference announcing new executive action on gun control, Oakland city officials moved yesterday to pass new laws of their own with the goal of reducing gun violence.

Yih-Chau Chang, spokesperson for Responsible Citizens of California… told NBC Bay Area the group would likely challenge the new laws.

“When it comes to banning standard capacity magazines,” furthered Chang, “the City of Oakland will likely run afoul of state preemption laws, which dictate that local gun control laws cannot be stricter than state laws.”

Colorado

Money Already Flowing To Fight 2016 Anti-Fracking Ballot Initiatives
Colorado Public Radio
One new group – Coloradans Resisting Extreme Energy Development —  says it plans to advance several ballot initiatives. That includes one that would allow cities and counties to ban fracking.

Colorado’s Fight to Stay Frack-Free
Food & Water Watch, 12/22/15
Colorado is a current battleground for local control over fracking vs. state oil and gas preemption, as grassroots organizations draft ballot initiatives to secure the right of local communities to protect their health and safety.

Florida

Senate panel passes Garrett Richter’s bill that strips away local control of fracking
Naples Daily News, 12/14/16
A Senate committee approved a bill Wednesday that tosses out local ordinances regulating or banning fracking, giving the state control of overseeing the drilling method and triggering concerns that the proposal stops short of real oversight.

SB 318

St. Petersburg considers fees on gun, ammo sales to help curb gun violence
Tampa Bay Times, 12/31/15
In seeking solutions to prevent gun violence, St. Petersburg’s mayor Rick Kriseman has “taken a more active role in exploring options… Among the ideas is… assessing a fee on guns or ammo tied to a service” such as “funding gun education or some sort of research and prevention programs.”

Mayor concerned about fracking
Clayton Today, 12/31/15
Mayor Tony Brown proposed a local ordinance to ban fracking earlier this month. He said it could be tabled while the state legislature debates various fracking bills, but Brown wants to see a local ban to protect the environment and take a stand for local control…

Santa Fe Lake Dwellers Association Legislative Chairman Terry Brant who said three different sets of state legislation have been proposed between both chambers – one set to establish fracking, another set to ban fracking and yet another that would put fracking on the ballot for voters’ consideration. The bills by Richter and Rodriques would regulate the practice, but in a way that is ruffling the feathers of those in local government around the state…

Maryland

Sprinkler law debate renewed; bill calls for local control on mandate
The Baltimore Sun, 1/2/16
When the state sprinkler mandate was signed by then-Gov. Martin O’Malley in 2012, counties were allowed to opt out for a three-year period. Rural counties with well and septic systems largely decided not to require homebuilders to install sprinklers in newly constructed single-family homes.

But since July 1, those counties have had to abide by the mandate, which has led to a slowdown in proposals to build new homes, said Del. Christopher T. Adams, a Republican representing Caroline, Dorchester, Talbot and Wicomico counties.

Adams has pre-filed a bill that calls for returning local control to rural counties that, unlike more urban counties in the center of the state, have not enacted their own sprinkler mandates because the costs are higher for homes on well water.

Nebraska

Nebraska senator proposes ‘Right to Farm’ amendment
KETV Omaha, 1/6/16
Sen. John Kuehn of Heartwell introduced an amendment Wednesday to prevent state officials from passing restrictions on agricultural technology and livestock production without a compelling state interest.

Gun laws in Nebraska state lawmakers’ sights as Jean Stothert, Ben Gray join opposing sides
Omaha World-Herald, 1/6/16
…the bill targeting local gun regulations will probably be first up for debate because it made it through committee last session and will be designated a priority by Sen. David Schnoor of Scribner. If passed, Legislative Bill 289 would override handgun registration ordinances in Omaha and Lincoln.

Taking sides are Mayor Jean Stothert, who says the Legislature should set uniform gun laws across the state, and Council President Ben Gray, who says local officials need to retain some control over firearms.

“I don’t think we want to run the risk of passing a law that would make it more difficult for the City of Omaha to address gun violence,” Gray said this week.

Nebraska Republican: Female Opponents of Stand Your Ground Law ‘Hysterical Ladies’ (VIDEO)
Reverb Press
“It was a pretty short hearing, without the fireworks the media thought might happen. There were just four hysterical (in words, not actions) ladies that testified against it.“

New Mexico

Bill would preempt local labor laws in NM
Albuquerque Journal, 1/7/16
The New Mexico Association of Commerce and Industry is drafting a bill for the upcoming legislative session that would establish a state preemption of local employment law, effectively prohibiting municipal or county governments from instituting their own standards with regard to minimum wage, paid time off, scheduling and related matters that exceed those already required at the state or federal level.

New York

Update: Albany County Legislature Amends Controversial Toxic Toys Law
The National Law Review, 1/13/16
The primary two amendments to the law adopted unanimously by the Legislature are intended to address concerns regarding federal preemption issues. First, the amended law sets specific parts-per-million limits for each of the seven chemicals that mirror existing federal regulation, where applicable…Second, new language has been inserted to clarify that federal law will govern in the event of a direct conflict with a provision of the local law unless the CPSC grants a ruling that the local standards apply.

Oklahoma

EDITORIALLY SPEAKING: State Question 777 no winner for environment
Muskogee Phoenix, 1/12/16
SQ 777 is a ballot measure which would preempt local health and environmental oversight of factory farms, also known as concentrated animal feeding operations (CAFOs).

Illinois River group to join in lawsuit
Muskogee Phoenix, 1/3/16
A citizens coalition that advocates on behalf of the Illinois River and Tenkiller Lake plan to join as plaintiffs in a lawsuit backed by opponents of a controversial ballot measure referred by the Oklahoma Legislature.

State Question 777 would prohibit state lawmakers from passing laws that restrict “the right to employ agricultural technology and livestock production without a compelling state interest.” Supporters have dubbed it a “right to farm” measure while opponents describe the proposed constitutional amendment as a “right to harm.”

McClendon: SQ 777 doesn’t really protect farmers
The Journal Record, 12/30/15

SQ 777, Oklahoma’s preemptive “Right to Farm” ballot measure, is facing increasing resistance from nonprofits, small farmers and citizen coalitions.

Pennsylvania

Pennsylvania Judge Says No to Pittsburgh Paid Sick Leave
Employment Discrimination Report, 12/28/15
The Pennsylvania Restaurant & Lodging Association and five businesses had filed suit in August 2015 to enjoin the law. Judge Joseph James agreed with the Association’s argument that a 2009 Supreme Court case was binding and that state law prohibits municipalities organized under a home rule charter from regulating businesses’ employees.

The City and proponents of the Ordinance have not ruled out an appeal as of yet. However, at least for now, employers and Pittsburgh do not have to worry about changing sick leave policies.

Texas

Watson: Paxton should not pre-empt universities on campus carry
The Austin American-Statesman, 12/19/15
As the end of the 2015 legislative session neared, the campus carry bill was on the verge of dying in the House. The local control amendment now in contention was instrumental to reviving that bill and getting it passed.

Those responsible for this bad legislation owe it to Texans to respect the legislative process and the work that presidents and others are required to do in considering this important and potentially dangerous policy.

Washington

The NRA sued Seattle over a new firearms and ammunitions tax citing state preemption of local firearms ordinances. The trial court upheld the city’s new tax, but pro-gun groups are promising to appeal.

Gun groups to appeal in Seattle ammo tax case
Guns.com, 1/7/15

SAF Vows Appeal In Case Against Seattle Gun Tax
PR Newswire, 12/22/15

A Seattle judge upholds the city’s new fee for guns and ammo dubbed the gun-violence tax
Business Insider, 12/23/15

City, gun-rights plaintiffs skirmish over tax on gun, ammo sales
The Seattle Times, 12/18/15

Wisconsin

Slow down on property rights bills
Milwaukee Wisconsin Journal-Sentinel, 1/7/16
Among the bills are measures that…

Prohibit municipalities from designating properties as historic landmarks without the consent of their owners. But there already are avenues for property owners and local officials to work together to mitigate any issues, and this measure simply puts too much power in the hands of property owners at the expense of a community’s heritage. Supporters of the bill say they’re willing to consider changes for a better balance. Those changes need to be made.

Rewrite regulations dealing with waterways and land around them. Supporters of the changes in the Republican-backed bill say that protections for wetlands and other affected properties will remain, but landowners will have more flexibility to dig up soil in these sensitive areas. But environmental groups say the measure goes too far. They say it would allow the removal of up to 30 cubic yards, equivalent to 10 dump trucks, of soil annually.

Republican bill seeks to limit local photo ID cards
Journal Sentinel, 1/1/16

Republicans Go After Local Control in Milwaukee
Wisconsin Democracy Campaign, 12/30/15
Two Republican lawmakers in Wisconsin are proposing SB 533, a bill that prohibit towns or counties from issuing, or spending money on, photo I.D. cards, and would bar usage of such cards from using them to vote or obtain public benefits.

Opponents cite Milwaukee’s recent plan to issue city I.D. cards for homeless individuals, undocumented immigrants and others unable to get a state or federally issued identification card. Limiting groups access to identification cards would restrict access to prescriptions, housing and other life necessities that require a picture I.D.

Kelley Stanage: Frac sand story didn’t address real issues
Winona Daily News, 12/18/15
This opinion piece expresses concerns about SB 632, which would limit local government authority over frac sand mining and other mining activities. Frac (or frack) sand is used in hydrofracturing to prop fractures open to allow oil and gas to be extracted.