There are preemption threats at the federal or state levels targeting dozens of social justice, safety, and health issues, including: Food & nutrition; agriculture; local soda taxes; LGBT non-discrimination; tobacco control; e-cigarettes; all local licensure & permitting; fire & building codes; chemical safety; environmental justice; earned sick days; paid family leave; community benefits; all local regulations impacting private property; predatory lending; disposable containers; climate change; and statewide “blanket” preemption, which either directly or indirectly prevents the adoption or enforcement of any local ordinance, rule or regulation.
The evolving threat of state and federal preemption suggests that advocates must fundamentally shift strategy in 2017 and beyond: Rather than waiting for individual bills, amendments, or regulations, whether at the state or federal level, it is now incumbent upon advocates to expect and prepare for preemption well before it has been introduced or proposed.
Although the challenges vary from state to state and issue to issue, the public health field must now be prepared for preemption in all 50 states and at the federal level.
E-Cigarettes Escape Stricter Labeling
The FDA, pursuant to the authority it possesses under the TCA (Tobacco Control Act), has promulgated a labeling requirement that applies to e-cigarettes. Therefore, state labeling requirements that apply to e-cigarettes that are “different from, or in addition to” the FDA’s requirement are preempted.
Tucson and state will square off in court over gun laws and local control
Arizona Daily Star, 12/7/16
After the Tucson City Council refused Tuesday to permanently stop the practice of destroying confiscated firearms, Attorney General Mark Brnovich asked the Arizona Supreme Court to cut off the city’s state aid…
Tuesday’s action is the first test of a new state law giving Brnovich the power to pressure cities to change policies he believes contradict the wishes of Arizona lawmakers. The law, known as SB 1486, allows the state to withhold state-shared revenues if Tucson refuses to repeal its legislation.
On Tuesday, city officials revised downward the dollar amount they believe is in jeopardy if Tucson loses in court, saying only two types of state revenue are applicable. The city received a total of $115 million from both last year.
These funds are used to pay for law enforcement, city courts, public transportation and the parks and recreation department, said Joyce Garland, the city’s chief financial officer.
Steller: Tucson right to fight state over bad ordinance
Arizona Daily Star, 12/7/16
In this opinion piece the author, who is opposed to a Tucson firearm ordinance, nonetheless also opposes Arizona’s “blanket” preemption on principle and states that local control is always preferable:
Tucson is fighting against a law, SB 1487, that imposes Draconian penalties on cities whose ordinances might violate state law or the Constitution. You could say that it’s just coincidence that the first city action to be challenged is a Tucson ordinance related to the destruction of seized guns…
The ordinance is pointless… But it is our right to have pointless ordinances and hash out the arguments ourselves, without putting $115 million per year in jeopardy…
But the NRA opposes any city efforts to regulate firearms, and pushed a bill in this year’s legislative session to give it a tool to sue. SB 1266 allowed pretty much anyone to sue a city attempting to do so. It imposes fines of up to $50,000 on the city, allows for firing of employees carrying out the policy, and says any successful plaintiff is due both attorneys’ fees and damages up to $100,000.
That bill was the one the NRA planned to use to fight Tucson, but then the nuclear option came into effect. SB 1487 takes away state-shared revenue from any city that violates any state law or the constitution — about $115 million in Tucson’s case. And it forces the Attorney General’s Office to handle any complaints made by a single state legislator, taking the legal burden off of individuals and interest groups.
California, Trump Administration Will Clash Over Environmental Policy
California Public Radio, 12/12/16
Serious clashes over environmental policy between California and President-elect Donald Trump’s administration are likely. Legal experts say to expect increased tension and litigation.
Legally, California’s environmental rules and programs could be challenged in a variety of ways by the Trump administration – putting at risk wildlife and coastal protections, land use regulations, and pollution controls. Rick Frank, director of the Environmental Law and Policy Center at UC Davis, says federal law prevails when in conflict with state or local law under the preemption doctrine.
“The preemption doctrine can and does arise in a variety of contexts and the whole controversy over oil by rail is one of them,” says Frank.
He says while California hasn’t taken on a regulatory role in limiting oil shipments by rail, local governments have. Benicia’s rejection of oil trains might not prevail under a Trump administration.
Linn County supervisor wants to delay start date for minimum wage ordinance
The Gazette, Cedar Rapids, IA, 12/13/2016
Oleson said his concern is the Linn County minimum wage, currently scheduled to increase to $8.25 an hour at the beginning of the year, could become a moot point if state lawmakers add a pre-emption clause this General Assembly that eliminates local governments’ ability to pass such an ordinance.
County Council Opposes Possible State Limits on Sick and Safe Leave Bill
Bethesda Magazine, 12/6/16
The Montgomery County Council on Tuesday opposed potential statewide legislation that would mimic the county’s Sick and Safe Leave legislation, but would limit the companies that would be required to provide the benefits…
Annapolis lobbyist Bruce Bereano said, in a telephone interview, the Montgomery statute is applicable statewide because it covers any company doing business in the county.
“There has been and will be a very strenuous effort this upcoming session when a sick leave bill is passed is to pre-empt all jurisdictions,” Bereano said. He is representing a number business, construction and floor-covering companies, as well as clients that operate locations in a number of counties in the state, he said.
Courtroom battle begins over Minneapolis’ sick leave ordinance
Minnesota Star Tribune, 12/8/16
The case…is focused on whether state law already pre-empts a municipal sick and safe leave ordinance, and whether businesses would suffer irreparable harm if the judge does not halt its enforcement well before it goes into effect July 2017.
Lawmakers use Petland bill to ban Ohio cities from upping minimum wage
The Columbus Dispatch, 12/8/16
A bill that started out ensuring cities couldn’t limit where pet stores purchase puppies grew Tuesday to also block cities from raising their minimum wages and provide an expedited process for AT&T to install equipment needed to bring next-generation 5G wireless connectivity to Ohio.
Galveston tries to outwit bag-ban foes
Houston Chronicle, 12/11/16
Bills in previous legislative sessions aimed at shackling local authority to ban plastic bags have died quick deaths, but this year could be different, warned Melanie Scruggs, program director for the Texas Campaign for the Environment’s Houston office.
Bills aiming at restricting cities’ rights to ban plastic bags, like SB 103, are sure to run into stiff opposition from organizations like the Texas Municipal League. “It’s an abandonment of the concept of local control,” said Bennett Sandlin, Municipal League executive director. “Most cities will never do it, but for the cities that want to do it, they have good reasons.”