Preemption Front and Center in 2017
Even before the 2016 elections, we expected an increased threat of state preemption in 2017, both across issues and in a growing number of states. That fear was confirmed by the 2016 elections. Even more concerning, the outcome of the presidential election suddenly and dramatically increased the risk of federal preemption, both by legislative and regulatory action.
In November of 2014 and 2015, we posted our preemption forecasts for the upcoming legislative sessions. We based our predictions on our research, trends from prior years, ongoing monitoring, intelligence from the field, and the behavior of industry lobbyists and front groups.
Our forecasts for both years were unfortunately accurate. As predicted, the opponents of local (and state) authority were aggressive in introducing and promoting preemptive state legislation across dozens of issues. Simply put, 2015 was worse than 2014 and 2016 worse than 2015. The good news was that advocates for public health, safety and workers succeeded in slowing and stopping numerous preemptive proposals in many states.
Coming Soon: Our detailed 2017 federal & state preemption forecast.
Trump’s Agriculture Policy?
Marion Nestle, Food Politics, 11/15/16
Leaked pre-election talking points indicate that the Trump administration and their appointees will push federal preemption in agriculture and food policy, especially as it concerns corporate or factory farming (such as concentrated animal feeding operations [CAFOs]), and seek to eliminate state and local authority to address water and air pollution caused by factory farming.
What Does the NRA Want? (And What To Do About it)
The Huffington Post, 11/22/16
…state activity occurs because federal law does not preempt state gun law; indeed, there is an express anti-preemption provision in the Gun Control Act of 1968. It is possible the NRA will seek to establish a beachhead of federal preemption, particularly as it affects state restrictions on concealed carry, thus preventing states from restricting concealed carry by their own residents.
Local gun-carrying restrictions may be wiped out under Trump, advocates say
The Guardian, 11/14/16
If Congress passes a federal right-to-carry law, it’s “certainly possible” that within a year or two, New York tourists might be able to carry a concealed weapon as they tour the city, said Robert Spitzer, a gun politics expert at SUNY Cortland.
…Concealed-carry permits from one state “should be valid in all 50 states”, [Trump’s] platform reads, calling the proposal “common sense”.
State and Local GMO bans declared legal
Capital Press, 11/18/16
While the 9th Circuit ruled in favor of biotech critics on federal pre-emption, Maui County’s GMO ban remains overturned under its recent ruling. The appellate court found that the ordinance was still pre-empted by Hawaii’s comprehensive state laws and rules that deal with the same subject matter of potentially harmful plants.
Circuit court nixes Hawaiian counties’ GE bans
But under the preemption clause of the federal Plant Protection Act (PPA), the court said that “state and local governments may not supplement the strict controls that apply to federally regulated plant pests” without the approval of the Animal and Plant Health Inspection Service [APHIS].
The court said the PPA “expressly” preempts the Maui and Hawaii county ordinances to the extent that they seek to ban GE plants that APHIS regulates as plant pests. The court added, however, that federal law does not preempt state regulation of federally deregulated, commercialized GE crops. [emphasis added]
What’s Kansas City’s fate with Missouri Republicans?
The Kansas City Star, 11/18/16
Mayor Sly James (D-Kansas City) isn’t sure what’s ahead for Kansas City’s legislative priorities…“My main concern, frankly, in the very broadest sense is pre-emption (losing local control over city priorities). I’m concerned they’ll continue to pre-empt us in places that hurt us without any real sense of the consequences.”
In recent years, lawmakers have voted to strip local governments of control over regulation of firearms, prohibit cities from enacting their own minimum wage and block local efforts to ban plastic grocery bags.
County official: Political gridlock and local preemption loom at the Capitol
Austin Monitor, 11/23/16
State preemption is on the radar for many local officials, regardless of political affiliation, as they anticipate the 2017 Texas legislative session commencing in January.
Texas Senate Bill proposal asks to take away local anti-discrimination ordinances
KBMT News (ABC, Beaumont), 11/16/16
“This is modeled after HB-2 in North Carolina, and seeing the economic impact there, the fact that we’re trying to carry this into Texas, it was definitely disappointing to see,” Burnham said. East Texas senator Bob Hall proposed Senate Bill 92.
It would end city and local ordinance protections based on sexual orientation and gender identity.
The bill, also called the Intrastate Commerce Improvement Act, states that the purpose of this act is to improve intrastate commerce by ensuring that businesses, organizations, and employers doing business in this state are subject to uniform nondiscrimination laws and obligations, irrespective of the county, municipality, or other political subdivision in which the business, organization, or employer is located or engages in business or a commercial activity.
According to Equality Texas, removing local control would restrict the ability of local elected officials to pass or enforce ordinances, rules, or regulations that are not identical to state protections.
The bill would end up restricting local governments to only protecting the attributes covered under state law: race, color, national origin, religion, sex, familial status, disability, age or genetic information, according to Equality Texas.