“State Preemption: Threat to Democracy, Essential Regulation, and Public Health”
Jennifer L. Pomeranz, JD, MPH, Leslie Zellers, JD, Michael Bare, MPH, Patricia A. Sullivan, Mark Pertschuk, JD. American Journal of Public Health (February 2019, Vol 109, No. 2).
Modern preemption represents the convergence of industry-sponsored deregulation and an undermining of local democracy…State legislatures have gone so far as to eliminate their own ability to act on a wide range of issues while preempting local control over these same issues. States also have enacted punitive preemptive measures [“super-preemption”] under which local governments and officials can be subject to civil and even criminal penalties for adopting legislation that may be contrary to state law. Stakeholders and advocates across public health topic areas can work together to present a stronger opposition to preemption and support minimum standards that strengthen the health of all communities.
“Key Drivers of State Preemption of Food, Nutrition, and Agriculture Policy: A Thematic Content Analysis of Public Testimony”
Jennifer L. Pomeranz, JD, MPH and Mark Pertschuk, JD. American Journal of Health Promotion (2019).
This study provides new evidence on the arguments made in support and opposition to preemption of food and agriculture policy. Like previous research, we found that proponents of preemption primarily argued that statewide or even federal standards were preferable and that preemption was necessary to protect businesses and consumers. Conversely, opponents primarily argued that local control was necessary and beneficial for local businesses, communities, and community members using arguments related to local democracy, public health, and healthy food access. Opponents made the majority of arguments and engaged in persuasive messaging. Nonetheless, Kansas enacted this law, broadly preempting state and local control over multiple food and nutrition policy and agricultural topics. This indicates that more is relevant to passage of preemption than the frequency of sophisticated messaging at the hearing stage. Specifically, 3 pivotal key themes emerged that shed light on some of the true underlying issues that drove passage of preemption in Kansas.
Broadband & Wireless
A pair of orders by the 10th Circuit U.S. Court of Appeals in the litigation over the FCC’s controversial small cell order were issued Thursday. First, the court denied local government requests to stay the FCC’s small cell order pending resolution of the litigation. That means most of the FCC’s small cell order went into effect today. Second, the 10th Circuit granted local government requests to transfer the small cell order appeal back to the Ninth Circuit. That means both the small cell order and the FCC’s earlier moratorium order will be heard together in the Ninth Circuit. The FCC orders do not preempt state laws that may limit control over wireless facilities — both state and federal requirements apply, and if there is a conflict, the rule that most limits local authority will control. Here is what to expect going forward.
ESHOO INTRODUCES LEGISLATION TO RESTORE LOCAL CONTROL IN DEPLOYMENT OF 5G
Press Statement, Congresswoman Anna G. Eshoo, 1/15/2019
WASHINGTON, D.C. – Yesterday Congresswoman Anna G. Eshoo (CA-18) introduced H.R. 530, the Accelerating Wireless Broadband Development by Empowering Local Communities Act of 2019, legislation to overturn Federal Communications Commission (FCC) regulations limiting the ability of local governments to regulate the deployment of 5G wireless infrastructure.
“Having served in local government for a decade on the San Mateo County Board of Supervisors, I understand and respect the important role that state and local governments play in protecting the welfare of their residents,” said Rep. Eshoo. “5G is essential for our country’s communications network and economy, but it must be deployed responsibly and equitably. The FCC let industry write these regulations without sufficient input from local leaders. This has led to regulations that restrict cities from requiring carriers to meet the needs of communities in which they want to operate.”
Democrats aren’t buying a proposal for big tech to write its own privacy rules
The Verge, 1/14/2019
For the past year, discussions involving data privacy have heated up in Congress, and new federal legislation now seems inevitable. Today, a leading technology policy think tank, supported by Google, Amazon, and Facebook, proposed a “grand bargain” with lawmakers, arguing that any new federal data privacy bill should preempt state privacy laws and repeal the sector-specific federal ones entirely.
Analysis: Wins and Losses in the Farm Bill—Time for a Green New Deal
Beyond Pesticides, 12/19/2018
The good. Our major victory in the Farm Bill does not move us forward, but simply protects the status quo of our democracy—protecting the power of states and local government to adopt pesticide restrictions that are more stringent than the federal government.
Longmont City Council, state legislators talk politics, proposed bills
Longmont Times-Call, 1/16/2019
The state legislative delegation that represents Longmont and its residents stands a better chance this year of seeing more of its bills become law than was the case in the prior four years — particularly when those proposed laws involve such issues as whether to increase local control over oil and gas operations.
EDITORIAL: Colorado is ready for local control over oil and gas drilling and fracking
Sentinel Editorial Board, 1/16/2019
The Colorado Supreme Court issued more than a decision this week on whether the state should choose health interests over oil and gas commerce, the justices virtually issued an edict: Write a new law.
The state’s high court ruled unanimously Jan. 14 that current law does not permit Colorado oil and gas commissioners to make health and environmental concerns a priority. When regulating the oil industry, impact on business, human health and the environment all must get equal consideration, state law says, and all justices agreed.
Florida Lawmakers File Anti-“Sanctuary” Bills That Would Force Cooperation With ICE
Miami New Times, 12/20/2018
State Sen. Aaron Bean…. filed a bill yesterday that would force local cops and state governments to cooperate with U.S. Immigration and Customs Enforcement. In layman’s terms, he aims to ban sanctuary cities and communities across the Sunshine State. This is basically a bunch of nonsense designed to gin up support from Bean’s racist voter base in North Florida.
“A state entity, law enforcement agency, or local governmental entity may not adopt or have in effect a sanctuary policy,” the bill reads. It then adds, “A state entity, local governmental entity, or law enforcement agency shall fully comply with and, to the full extent permitted by law, support the enforcement of federal immigration law.”
State rules on wireless antennas would strip local control, say city officials
Reporter Newspapers, 1/16/2019
The General Assembly is expected to take up a bill this session that would reduce local regulations on placing small-scale wireless antennas, commonly called “small cells,” on existing or new poles in the public right of way. Supporters of such a bill say it would ensure high-speed internet access to rural Georgia.
Such a statewide bill is supported by the small-cell industry, but some local officials say such legislation would strip cities of local control and clutter the cities’ right of way with ugly poles and boxes, while financially benefiting the wireless industry giants.
On Food Policy, Kansas Defers To The Feds More Than Anyone
KCUR News, 1/16/2019
Kansas goes further than any other state in kicking local and state government out of decisions about nutrition labels and portion sizes, leaving that and other food policy up to federal lawmakers.
In a recent study, New York University researcher Jennifer Pomeranz said Kansas did more to limit local control than the 13 other states that passed similar laws.
Lawyer: Best option for Green Valley is to form city
The Mercury, 1/15/2019
Jim Kaup believes incorporation would be the best option for governance of Green Valley — the rapidly growing area in the southwest portion of Pottawatomie County.
Kaup, owner of Kaup Law Office, Topeka, which specializes in land-use law for Kansas municipalities, made that recommendation Monday to the Pott County Commission.
“If I were calling the shots, I would be promoting incorporation,” Kaup said. “If I was a composite of all those (Green Valley residents) surveyed, that’s the way I would go because of control. I would have control.”
Missouri lawmaker wants to ban local rules for food packaging
FOX 4 Kansas City, 1/1/2019
A Missouri state lawmaker wants to prohibit local governments from banning food and drink packaging amid a push by environmentalists to reduce the use of single-use plastics.
State Rep. Dan Shaul, an Imperial Republican and director of the Missouri Grocers Association, filed legislation that would prohibit bans, restrictions or other regulations on bottles, cups, bags, containers and other food and drink packaging, the St. Louis Post-Dispatch reported. The limits would cover containers made of plastic, aluminum, cardboard and a variety of other materials.
Businesses could still opt to use more environmentally friendly to-go wrappings and other packaging for food and drinks under Shaul’s bill. But the lawmaker said the move toward more sustainable packaging should be consumer-driven and not dictated by local governments.
West Lebanon Rail Yard Tiff Spurs Legislation
Valley News, 1/15/2019
Concord — Lebanon lawmakers clashed with railroad officials on Tuesday over a bill that aims to increase transparency around the leasing of state-owned rail properties, stemming from a conflict surrounding West Lebanon’s historic Westboro Rail Yard.
Representatives of several New Hampshire railroads argued before a House committee that provisions of the bill, House Bill 135, would pre-empt federal regulation of rail and replace it with local control. They said such a system could then be used to drive them out of hostile communities and hamper business.
Bill Would Prohibit ‘Sanctuary Cities’ in N.H.
New Hampshire Public Radio, 12/31/2018
A bill coming before New Hampshire’s next legislative session would prohibit sanctuary cities in the state…
A group of Republican lawmakers are backing a bill that would “establish the New Hampshire anti-sanctuary act, which requires state and local government entities to comply with federal immigration detainer requests.”
Wilmington changes park signs prohibiting firearms after resident points out ban is illegal
Port City Daily, 1/16/2019
WILMINGTON — Over the weekend, signs at city parks were redacted to remove language forbidding all firearms — the result, apparently, of a concerned resident pointing out that such prohibition, which includes a ban on concealed-carry handguns, is illegal under state law.
Farm Bureau sues over Ramsey County township’s restrictive animal feeding ordinance
Grand Forks Herald, 1/14/2019
DEVILS LAKE, N.D. — The North Dakota Farm Bureau is accusing a Ramsey County township of going beyond its legal authority in trying to prevent the development of a pig farm.
North Dakota Farm Bureau, along with Ramsey County Farm Bureau and the partners developing Grand Prairie Agriculture, on Friday, Jan. 11, filed a civil suit in Northeast District Court in Ramsey County against Grand Harbor Township and its board.
Plastic Bag and Container Fee Preemption Bills Die in Ohio Legislature
Surfrider Foundation, 1/3/2019
OHIO LAWMAKERS OVERRIDE KASICH VETO ON PRO-GUN BILL
Additionally, the legislation expands state preemption safeguards against local gun control measures– such as those increasing advocated in Cleveland and Columbus — as well as eases signage requirements on private property in regards to firearms.
Gun-owner rights bill OK’d over Gov. John Kasich veto
ABC News 5 Cleveland, 12/27/2018
A bill broadening gun-owner rights has become law in Ohio, after the Republican-led state Legislature overrode GOP Gov. John Kasich’s veto.
The Senate voted 21-11 on Thursday to reject Kasich’s decision to strike down the bill. That followed a House override earlier in the day.
The legislation expands gun access for off-duty police officers and allows pre-emption of local gun restrictions, among other things. [Emphasis added]
Oklahoma progress on smoking is slow but real
Editorial, The Oklahoman, 1/6/2019
Meanwhile, serious efforts continue to further reduce smoking in Oklahoma. The boost in tobacco taxes in 2018 will no doubt deter use and lead some smokers to drop the habit. And the lung association makes some good suggestions for additional legislative action.
It notes Oklahoma has a “pre-emption” law that prevents municipalities from enacting restrictions on smoking that are greater than those imposed in state law. We have long supported giving city governments the power to impose additional restrictions, and the lung association is correct in citing this as a problem.
Erie gun case echoes in Pittsburgh gun-control debate
Pittsburgh, guns rights group spar over signs posted ahead of Monday rally
Pittsburgh warns City Hall visitors that guns are prohibited in building
School Board makes case for controlling calendar, looks at 2019-20 dates
Henderson Time-News, 1/15/2019
The Henderson County School Board adopted a resolution in support of local control over school calendars Monday, joining a statewide movement in hopes county commissioners will adopt a similar measure in support.
Tennessee’s anti-sanctuary city law goes into effect on New Year’s Day
A new Tennessee law is set to go into effect on January 1, which will end local governments’ access to state economic development funds if they do not comply with a ban on “sanctuary” policies.
Two Views: Walls around local governments: GOP leaders move to end local control
Austin American-Statesman, 1/14/2019
What is up with the Republican obsession with building walls? It’s not just Donald Trump’s lonely fantasy of a big wall along our southern border. No, it’s walls of all kinds the GOP wants to build.
Republican Gov. Greg Abbott and his allies want walls between citizens and the voting booth, walls between local residents and their ability to make decisions for their neighborhoods and communities, walls between working families and prosperity, walls between people and healthcare.
When the Texas Legislature reconvenes Jan. 8, lawmakers will already have on their desks bills aimed at undoing City of Austin rules.
The city-state conflict is nothing new. Last time they met in 2017, state lawmakers passed bills overturning Austin ordinances affecting ride-hailing companies, like Uber and Lyft, and passed a “sanctuary cities” bill…
Bills to watch
- H.B. 222 – State Rep. Matt Krause (R-Fort Worth) filed a bill prohibiting municipalities from adopting any ordinance requiring employers to provide paid sick leave.
- H.B. 470 – State Rep. Dennis Paul (R-Houston) filed a bill limiting municipalities to a 4 percent maximum increase in property tax revenue year over year.
Protecting working forests in times of growth
The Lens, 1/15/2019
Introduced by Rep. Kristine Reeves (D-30), House Bill 1011 (HB1011) would amend the state’s real estate disclosure to include language stating that working forests fall under the state’s 2013 Right to Farm Act, which protects land used for agricultural and timber from “nuisance lawsuits.”
“If you move next to a farm you don’t get to sue that farm for just being a farm,” said Jason Callahan, director of government relations for the Washington Forest Protection Association. “You can’t move next to a pig farm and say, ‘I don’t like the smell of pig.’”
Asher Crispe and Brad Ferland: Maintaining Local Control In Education
Caledonian Record, 1/14/2019
In Vermont, we have a strong tradition of local autonomy and control. To people in other states, the town meeting might seem like a scene out of a Norman Rockwell painting—but to us, it’s a way of life. When it comes to education, no policy could maintain local control better than letting parents decide where to educate their children. This National School Choice Week, we should maintain that emphasis on “parent power,” because parents know what’s best for their children.
Virginia bill to bar ‘sanctuary cities’ sent to full Senate
RICHMOND, Va. (AP) — A bill aimed at prohibiting “sanctuary cities” in Virginia sparked an angry confrontation Monday between immigrant advocates and the state senator who sponsored the legislation.
The bill proposed by Republican Sen. Dick Black would bar localities from adopting ordinances or policies restricting the enforcement of federal immigration laws.
AFP-WV launches new guide for lawmakers
West Virginia Record, 1/15/2019
CHARLESTON —Americans for Prosperity-West Virginia have launched a new guide broken down into five sections to show West Virginia legislators the way to make the state a better place to live, work and raise a family…
In “Double Down on Worker Freedom,” the organization discusses paycheck protection, promoting a free market and local labor ordinance pre-emption.
Don’t yank local control
Buffalo Bulletin, 1/16/2019
It appears as though 36 of our state legislators have forgotten which state they live in.
Earlier this month, they sponsored a bill that defies a bedrock belief of Wyoming communities – local control.
Many of the 36 individuals sponsoring Senate File 75 – including our own Sen. Dave Kinskey and Rep. Richard Tass – are talking out of both sides of their mouths, paying lip service to local control but sponsoring legislation that puts more power in their hands in Cheyenne.
The bill would repeal gun-free zones across the state. The bill would allow those lawfully carrying concealed weapons in Wyoming to carry a concealed weapon into any public school, college or professional athletic event; any meeting of a governmental entity; and any meeting of the Legislature.
School fight goes to Cheyenne
Jackson Hole News & Guide, 1/16/2019
An emotionally charged proposal to strip county zoning authority over some private schools will see its first review by the state Senate Education Committee on Wednesday morning.
On Tuesday opponents carpooled from Jackson to Cheyenne and Teton County commissioners penned a strongly worded letter calling for lawmakers to reject the bill, which they see as a threat to local control.
County to consider letter on private school zoning bill
Jackson Hole Daily, 1/14/2019
On Tuesday, the Teton County Board of County Commissioners will consider sending a letter to Wyoming legislators opposing state pre-emption of county zoning authority.
The drafting of the letter follows news that Sen. Mike Gierau, D-Teton, plans to co-sponsor a bill that would strip counties’ zoning authority over private schools.