Governing, January 2017
Assuming that the idea of soda taxes continues to gain traction, the industry might turn to other allies to block them. New taxes imposed at the local level could be wiped out by tax-despising state legislatures, which have shown little hesitation in recent years when it comes to preempting liberal economic policy ideas, such as minimum-wage increases. “Many state lawmakers are watching the growth of discriminatory taxes, on beverages and hotels for example, and are concerned with the aggressive approach utilized by certain local units of government,” says Jonathan Williams of the conservative American Legislative Exchange Council. “If this growth in discriminatory taxation at the local level persists, I think it is quite possible efforts will emerge at the state level to address these threats to taxpayers.”
The Guardian, 12/25/16
In the last four years… the number of issues on which states are asserting their rights has skyrocketed, said Mark Pertschuk, director of the Oakland-based Grassroots Change, which keeps close tabs on preemption legislation…At least some Republican-dominated states are considering what Pertschuk calls “blanket preemption” laws…That law would allow the state to cut off funding to cities that refuse to give up laws that run counter to state law.
Trump, Congress Could Halt State Action on Climate
John Upton, Climate Central, 1/9/2017
“There really is virtually no aspect of federal regulation of the natural environment or health that’s not at risk of preemption now,” said Mark Pertschuk, a lawyer and activist with the nonprofit Grassroots Change, which tracks state preemptions of local rules affecting gun safety, paid sick days, factory farming and other issues. “Federal laws almost always trump state and local laws.”It’s difficult to predict when, how or whether the federal government will wield any tools of preemption to bar cities and states from enforcing their own environmental rules. Nonetheless, governments across the country are bracing for new restrictions. California’s decision to hire Obama’s attorney general, Eric Holder Jr., showed it’s preparing to fight for state rights in court.
The Republicans Who Want Trump to Fight Climate Change
The Atlantic, 1/4/17
Exxon’s Alan Jeffers affirmed the company’s commitment to a revenue-neutral carbon tax in an email to The Atlantic. Among the state and federal proposals the company had studied, Jeffers wrote, “The most significant common shortcoming is their failure to pre-empt existing greenhouse gas regulations. The pre-emption issue is important because a properly-designed carbon tax that replaces the existing regime of emissions regulations would be a beneficial policy rationalization.” In simpler terms, an Exxon-friendly carbon tax shouldn’t just avoid regulations. It should dismantle them, and place as little strain as possible on the company’s operations.
As a Trump Administration Fast Approaches, Cities and Towns Gear Up for Political Resistance
Moyers & Company, 1/4/17
But in most states, power — and funding — held at higher levels make local legislation a soft target. State governments preempt local governments, and the Federal government preempts the state. CELDF thus makes a philosophical argument that pushes up against preemption.
“Communities are arguing that they have a right to local governance,” Margil said. “We have a fundamental violation of our democratic rights when we have a state legislature that is overriding our ability to protect our communities, protect our people, protect our land. It is a right to community self-governance that is being usurped by industry, by corporations, by state legislatures working hand-in-hand with corporations.”
Ohio was just the latest example. In its end-of-year rush, the state’s Republican legislature passed and Gov. John Kasich signed a bill blocking cities from raising the minimum wage locally. But such “pre-emption” laws are increasingly common…
More than 20 mostly red states have passed preemption laws banning local minimum-wage increases, according to NELP…
Republican state legislatures have passed similar laws in Missouri, Michigan, Alabama, and more. With Congress in Republican hands, states and cities are the only path to improving conditions for working people through minimum wage increases, paid sick leave, and more.
Will States Stop Cities From Combating Climate Change?
In 2016, for instance, “no states enacted legislation that would preempt local governments from taking climate change into account,” says Kim Tyrrell, program director on the environment for the National Conference of State Legislatures (NCSL). To her knowledge, there are only two instances in the last five years in which a state legislature passed such a law…
But while there is no discernible trend in state legislatures to strip cities and counties of their authority to regulate climate change, mayors are cautious. Many cities have renewable energy and zero-waste goals. With Republicans in full control in half the states, climate change skeptics in legislatures much like Arizona’s might feel empowered to target such programs. “I was elected to represent and move the values of our citizens forward,” says Phoenix’s Stanton. “As cities like mine act to more aggressively reduce the impact of climate change, mayors shouldn’t have to worry about the state.”
City of Tucson files its response in state preemption lawsuit
Arizona Daily Star, 12/23/16
The city of Tucson is asking the Arizona Supreme Court to throw out a lawsuit filed by Attorney General Mark Brnovich over the city’s policy to destroy confiscated guns.
The 30-page motion filed Thursday night suggests the legal mechanism that brought the complaint to the state’s highest court — SB 1487 — is unconstitutional and therefore, unenforceable. The state is threatening to pull shared revenue from the city unless Tucson stops destroying seized guns.
A Florida Mayor Fights the Gun Lobby
City Lab from The Atlantic, 1/6/17
In 2014, two gun-rights organizations… sued the city of Tallahassee and various of its officials over a pair of laws, passed in 1957 and 1988, that prohibit residents from discharging firearms in public parks. Those local regulations retroactively violated a Florida state law, passed in 2011, preempting local governments from passing any ordinances that regulate guns.
On Tuesday, Tallahassee Mayor Andrew Gillum will appear before Florida’s First District Court of Appeal for oral arguments in that continuing case. Except Gillum will not have the benefit of Tallahassee’s legal team behind him: The same Florida state preemption law prohibits the use of public funds in defending local government officials in any dispute over gun ordinances. So, in this case, the mayor had to procure pro-bono representation.
The mayor refers to the law as “super-preemption.” Like state preemption laws across the country, including North Carolina’s notorious H.B. 2, Florida’s firearms statute forbids city or county governments from passing certain local policies—in this case, laws regulating the sale or use of firearms. But Florida’s law goes much further: It opens up local government officials to lawsuits, penalties, fees, and even removal from office for even attempting to pass a bill contravening state law.
State bill to ban plastic bags introduced 3rd time by Rep. David Richardson
Treasure Coast Palm, 12/15/16
Florida coastal communities could ban plastic shopping bags to preserve the environment and reduce litter under a proposed state law…
This is the third time Rep. David Richardson has filed the bill since the Legislature in 2008 prohibited local governments from enacting ordinances to regulate disposable plastic bags.
Richardson’s hometown of Miami Beach wants to enact the pilot program, and 24 local governments across the state have passed resolutions supporting the end of the state’s pre-emption. Those include Sewall’s Point, Brevard County, Melbourne Beach, Indiatlantic, Satellite Beach, Bonita Springs and Leon County.
The House bill (HB93) and its Senate companion (SB162) would prohibit municipalities from imposing fees or taxes on bag use, and would require governments to collect data on the pilot program to generate a report for the Department of Environmental Protection.
County heads toward repealing GMO bill
The Garden Island, 12/15/16
The Kauai County Council voted 6-0 on the first reading of Bill No. 2643, which seeks to repeal Bill No. 2491, also known as Ordinance 960. Councilman Arthur Brun, an employee of Syngenta, recused himself from the vote.
The bill…sought to regulate the use of GMOs and pesticides by requiring mandatory disclosure of GMO and pesticide use by large agricultural businesses, and prohibiting open air testing of experimental pesticides and GMOs…
The bill was overturned in the federal court. And on Nov. 18, the Ninth Circuit Court of Appeals upheld the court’s ruling that the Hawaii Pesticides Law preempts the county’s laws.
Iowa Legislature likely to have minimum wage debate – or two
The Gazette, 1/2/17
It’s all but certain the Iowa Legislature will have a minimum wage debate this year. Maybe two…
That means there will be attempts to pre-empt local government from setting their own minimum wage rates…
Iowa Citizens for Community Improvement spokeswoman Bridget Fagan-Reidburn and Progress Iowa’s Matt Sinovic said their groups will not accept any pre-emption legislation that would lower workers’ wages.
Hogan backs mandatory paid sick leave at large companies
Capital Gazette, 12/7/16
Republican Gov. Larry Hogan announced Wednesday he will lobby the General Assembly to mandate paid sick leave at large companies, offering a proposal that puts his stamp on an issue long championed by Democrats…
Democrats have been working since April on legislation for next year, and bristled at the governor’s preemptive alternative…
Hogan’s proposal would override more expansive local laws, such as the mandated paid sick leave required in Montgomery County.
Montgomery County Councilman Tom Hucker said preempting his county’s law could effect hundreds of thousands of workers that are guaranteed paid sick time or parental leave under local laws.
Ban on local plastic bag bans now Michigan law
The bill to ban local governments from banning plastic bags and other disposable containers is now Michigan law, as it was signed by Lt. Gov. Brian Calley on Wednesday afternoon.
The bill moves to preempt local governments from putting in place ordinances disallowing or placing fees on disposable containers. That would affect Washtenaw County, which planned to start enforcing a 10-cent charge on paper and plastic grocery bags in 2017.
Appeals Court: Michigan Schools Can Ban Guns
WEMU (Ypsilanti, MI NPR Affiliate), 12/16/16
The state Court of Appeals says the state’s preemption of local firearms ordinances does not apply to schools. The court upheld the Ann Arbor public schools ban on guns on school property. The ban was challenged by a gun rights group and a parent with a concealed pistol permit.
There is a state law that preempts most local gun ordinances to allow people to carry a pistol in many public places.
The Six Issues That Will (Probably) Dominate The Year In Local Government
Twin Cities [Minnesota] Business Magazine, 12/27/16
“Government that is closest to the people, is the best,” someone is supposed to have said, somewhere in history. But when it comes to issues, if you’re not winning at the local level, one longstanding tactic has been to take it up a notch — to address it in a venue where the odds might be more in your favor.
Is Minnesota the Next Target for GOP Wage Suppression Laws?
The American Prospect, 12/23/16
One of ALEC’s top priorities has been passing state laws that preempt local minimum wages. More than 20 mostly red states have passed minimum wage preemption laws, according to the National Employment Law Project. Just this week, Ohio Governor John Kasich signed a wage preemption law aimed at blocking an upcoming Cleveland ballot measure for a $15 minimum wage.
Montana Legislature will wrestle with variety of ag issues
Lola Raska, executive vice president of the Montana Grain Growers Association…thinks a right-to-farm proposal that would prevent counties and local governments from regulating seeds could be a hot topic. Other states, including Oregon, Hawaii and California, have experienced local government regulation of seeds, usually because of anti-biotech leanings.
“We don’t have any of that in Montana but we know other states that do, so we’re trying to get ahead of that,” she says.
Nebraska: Important Firearms Preemption Legislation Introduced
Yesterday, Legislative Bill 68 was introduced in the Nebraska Legislature…a [super-] preemption statute to ensure that firearm and ammunition laws are consistent throughout The Cornhusker State.
How Did North Carolina’s Deal to Repeal HB 2 Fall Apart?
The Atlantic, 12/22/16
McCrory calls lawmakers back; HB2 repeal planned
WRAL (Raleigh, NC), 12/19/16
There has been no official word from North Carolina House or Senate leadership as to the timing of the session or what exactly will happen, but [NC Governor-elect] Cooper said Monday a deal had been struck.
“Senate Leader Phil Berger and House Speaker Tim Moore assured me that as a result of Charlotte’s vote, a special session will be called for Tuesday to repeal HB2 in full. I hope they will keep their word to me and with the help of Democrats in the legislature, HB2 will be repealed in full,” Cooper said. “Full repeal will help to bring jobs, sports and entertainment events back and will provide the opportunity for strong LGBT protections in our state.”
Pennsylvania court finds town’s gun ban unlawful
A Commonwealth Court panel ruled 2-1 on Friday to grant a gun rights group an injunction against a Pennsylvania town’s ban on carrying firearms in area parks.
The court held the group’s case against Lower Merion Township, a 60,000 resident suburb of Philadelphia, has merit and issued a preliminary injunction against the city enforcing its local ban, overturning a lower court’s decision.
To the panel’s majority, it came down to a question of if the town violated state preemption laws regarding the lawful possession or transportation of firearms.
After judge OKs Philly sugary drink tax, appeal may bring thorny legal battle
NewsWorks WHYY (NPR-Philadelphia), 12/20/16
Soda tax lawsuit dismissed
Common Pleas Court Judge Gary S. Glazer has dismissed a lawsuit against the city’s sweetened beverage tax, allowing the Kenney Administration to move forward with the implementation of an expanded prekindergarten program the levy will fund…
The lawsuit contended that the new tax is preempted by the state sales tax and would violate state law that requires similar products to be taxed at the same rate.
The lawsuit also contended that products purchased through the Supplemental Nutrition Assistance Program (SNAP), popularly known as food stamps, are exempt from sales taxes and therefore implementing a soda tax on such purchases would be in violation of state and federal rules.
Glazer dismissed all three arguments.
In his order, Glazer ruled that the soda tax is not preempted by the state sales tax because the two taxes are fundamentally different, one being levied at the point of distribution and one at the point of sale.
South Carolina lawmaker proposes law similar to HB2
WSOC TV (Charlotte, NC), 12/29/16
In South Carolina H3012 is similar to North Carolina’s HB2 in that it would preempt local governments from enacting gender-affirming bathroom policies which would protect transgender people’s ability to use bathrooms that match their gender identity.
Texas Governor Pledges to Sign Anti-Sanctuary City Bill
The Daily Signal, 1/6/17
SB 4 states that, “A local entity shall not adopt, enforce, or endorse a policy under which the entity prohibits or discourages the enforcement of immigration laws.” The bill also allows for financial penalties (withholding of state grants) against cities and counties and the removal from office of officials who “violate” the law.
Following North Carolina’s lead, Texas Republicans announced Senate Bill 6 (SB6), which would require transgender people to use bathrooms in public schools, government buildings and universities based on “biological sex” and would pre-empt local nondiscrimination ordinances that allow for transgender Texans to use the bathroom that corresponds with their gender identity.
State And Local Level Officials Prepare To Stand Up Against Trump On Climate Issues
WORT (Madison, WI), 12/15/16
“Now, here in California, and actually in Washington and Oregon as well, we have a Pacific Coast climate initiative, where the governors of all three states, along with British Columbia, have signed statements and executed their own programs,” explains Anne Nothoff, the California director for the National Resources Defense Council.
And she says AGs in California and other states can use the courts to slow-walk federal changes that would impact their states: “At the state level the AG should ensure that any legislation and regulations coming out of California are really bulletproof and won’t be susceptible to any sort of federal preemption arguments or any dormant commerce clause concerns. Those are two things that have set back some of the California regulations.”