Get Ready for Super-Preemption!
The gun lobby is hitting the ground running with a national push in 2016 – 2017 for firearm and ammunition “super-preemption.” Preemption Watch has reported on the threat of super-preemption in the past, but the risk is greater and more immediate today than ever before, starting with the current push for veto-proof super-preemption legislation in Pennsylvania.
Pennsylvania HB 2258 passed the House Judiciary Committee on September 20, 2016. A previous firearm super-preemption statute in Pennsylvania was invalidated by a state appeals court in 2015, a decision that was unanimously upheld by the state supreme court in 2016.
Pennsylvania gun preemption law gets a second chance
The STB decision helped clear up some of the gray areas around the issue of “pre-emption,” in which railroads are not subject to any local or state authorities or laws because local and state laws are “pre-empted” by federal law…
This above-the-law approach has served rail companies well. And until the recent STB decision, it also appeared to protect oil companies who were moving oil by rail.
But this latest decision about Benicia appears to deliver a real blow to oil companies when it comes to oil-by-rail transfer facilities. Since the companies who receive the oil from the rail cars aren’t railroads, the STB ruled that they are not protected by federal pre-emption. In the decision the STB refers to Valero as a “a noncarrier” which is why the STB ruled they are not able to claim pre-emption.
CITING NEW EVIDENCE, SHELBURNE ASKS COURT TO HALT RAIL FACILITY
VT Digger, 9/20/16
Shelburne again asks court to stop construction of salt shed
Vermont Biz, 9/19/16
Shelburne, VT continues the court battle against federal preemption of railroad operations to retain local control of public health and environmental policy setting. The second link above has a more thorough legal explanation of a previous court case, current filing and legal precedence.
State, cities set to square off
Mineral Wells Index, 9/15/16
Another great article covering state preemption of local authority, focusing on recent legislation in Texas, Kansas and North Carolina, warning against the possibility of more to come.
Following on the heels of federal preemption in the recently revised Toxic Substances Control Act:
Unlike food or drugs, the U.S. government has no power to ensure that cosmetics are safe, nor to force them off the market if they’re not…
Reps. Frank Pallone Jr. (D-6th Dist.) and Leonard Lance (R-7th Dist.) said Wednesday that they would propose legislation to give the Food and Drug Administration the power to regulate cosmetics, a $60 billion industry. It would update a 1938 law…
One issue to be worked out is whether to have a national standard, which businesses would prefer but could pre-empt potentially stronger state regulations…
“I have no problem with pre-emption as long as the federal standard is strong,” Pallone said.
Proponents said the proposed legislation would accomplish that goal.”
Eshoo Introduces Legislation to Empower Local Community Broadband Decisions
Congresswoman Anna G. Eshoo Official Website, 9/13/16
Rep. Anna G. Eshoo (CA-18) today introduced the Community Broadband Act of 2016, legislation preserving the right of local communities to provide community-owned broadband service to consumers. Introduction of the bill comes after a ruling from the Sixth Circuit Court of Appeals in August striking down a Federal Communications Commission (FCC) Order preempting state laws in North Carolina and Tennessee restricting service from community broadband providers.
“I’m disappointed that a recent court ruling blocked the FCC’s efforts to allow local communities to decide for themselves how best to ensure that their residents have broadband access,” Eshoo said. “This legislation clears the way for local communities to make their own decisions instead of powerful special interests in state capitals.”
“Rather than restricting local communities in need of broadband, we should be empowering them to make the decisions they determine are in the best interests of their constituents. Too many Americans still lack access to quality, affordable broadband and community broadband projects are an important way to bring this critical service to more citizens.”
Eshoo’s legislation is modeled on a bipartisan bill introduced by Senators Frank Lautenberg (D-NJ) and John McCain (R-AZ) in 2005. The text of the Community Broadband Act of 2016 can be found here.
Rutledge asks for oral arguments over Arkansas LGBT protections
Arkansas Online, 9/16/16
Arkansas Attorney General Leslie Rutledge is asking the state’s highest court to hold oral arguments in the lawsuit challenging a city ordinance that bars discrimination based on sexual orientation or gender orientation.
Rutledge’s office on Thursday asked for the arguments in the case she and opponents of Fayetteville’s anti-discrimination ordinance have before the high court. A Washington County circuit judge earlier this year upheld the ordinance and said it didn’t violate a state law aimed at preventing local protections for lesbian, gay, bisexual and transgender people.
In a separate brief, Rutledge asked the court to strike the ordinance and uphold the state law preventing cities and counties from barring discrimination on a basis not contained in state law. Arkansas civil rights law doesn’t include sexual orientation or gender identity.
Benicia council spikes use permit for Valero oil-by-rail plan
Daily Republic, 9/21/16
The Benicia City Council unanimously turned down a proposal Tuesday to allow up to 70,000 barrels of crude oil a day to be delivered to the city’s refineries by rail rather than by ship…
Valero’s attorneys had requested the declaratory order from the Surface Transportation Board on the issue of federal pre-emption with regard to the project.
Valero contended that Benicia is legally prohibited from imposing any mitigation measures on rail-related impacts, or denying the project due to those reasons.
The Surface Transportation Board’s decision said that there is no pre-emption because “the (Benicia) Planning Commission’s decision does not attempt to regulate transportation by a rail carrier.”
Plastic bag fees spawn Michigan political fight
The Detroit News, 9/21/16
Anticipating the fee or tax, the GOP-controlled Senate approved legislation in May that would bar local governments from adopting such fees or bans of plastic bags and other packaging containers. The Senate voted 25-12 with almost uniform support among Republicans and opposition from Democrats.
A House panel approved the bill Tuesday, paving the way for consideration by the full Republican-controlled state House.
N.C.A.A. Moves Championship Events From North Carolina, Citing Anti-Gay-Rights Law
The New York Times, 9/12/16
The N.C.A.A., responding to a contentious North Carolina law that curbed anti-discrimination protections for lesbian, gay, bisexual and transgender people, will relocate all championship tournament games scheduled to take place in the state over the coming academic year, the organization announced Monday night…
The North Carolina law, which was signed by Gov. Pat McCrory in March but is still commonly referred to as House Bill 2, nullified local government ordinances establishing anti-discrimination protections for lesbian, gay, bisexual and transgender people.
Local Republicans and Democrats join together to oppose SQ 777
Tahlequah Daily Press
Water quality, ‘Big Ag’ among concerns of ‘Right to Farm’ opponents
Tulsa World, 9/19/16
The Oklahoma City Council passed a resolution Tuesday formally opposing State Question 777, which is commonly known as the “right-to-farm” amendment. The proposal would add a new section to state law guaranteeing farmers and ranchers can operate without interference unless the state has a compelling reason to get involved…
Councilwoman Meg Salyer said the body decided to issue the stronger stance because State Question 777 originated in the House last year.
“This is not an initiative position, it’s something that was brought forward by the state legislature,” Salyer said. “In my opinion, once again, is the state overstepping their bounds and tying municipalities’ hands in what we can and can’t do? So that’s the reason I’m supportive of voting for this resolution.”
The City Council passed that proposal on a 6-to-2 vote. The Oklahoma Municipal League has urged local governments to oppose the state question, and the cities of Edmond, Choctaw, and The Village have also done so.
Join Grassroots Change for the annual Place Matters Conference in Portland, Oregon from October 4 – 6. Our director, Mark Pertschuk, will deliver a plenary talk on October 5 entitled “Building a Public Health Movement Begins with the Local Community.”
Immediately following the 9:30 plenary, Grassroots Change will host a breakout session called “From Berkeley to Boulder: Using Lessons from the Tobacco Playbook to Address Sugary Beverages.” We’ll be joined by:
- Annie Tegen, Vice President for Policy, Healthy Food America & former Senior Program Manager with Americans for Nonsmokers’ Rights
- Sara Soka, the Campaign Manager of Berkeley’s successful soda tax movement
- Michael Bare, Program Manager, Preemption Watch, a program of Grassroots Change
The breakout session will be interactive, exploring industry tactics common to many grassroots public health movements. In particular, we’ll highlight examples from recent soda tax campaigns and the longer track record of the tobacco prevention movement, including legal challenges, front groups, and preemption.
Firearms Super Preemption is back in Pennsylvania’s state legislature with HB 2258 which was filed and passed the House Judiciary Committee on September 20, 2016. Prior super preemption in Pennsylvania was struck down in 2015 by the Commonwealth Court in a decision upheld by the state supreme court in 2016.
Pennsylvania gun preemption law gets a second chance