Cooley Judicial Lecture: Respecting Local Control: State Law in the Federal System
Judge Joan Larsen of the US Court of Appeals for the Sixth Circuit will deliver the Inaugural Thomas M. Cooley Judicial Lecture at Georgetown University Law Center, Hart Auditorium, on Thursday, April 11, at 6 pm. Her topic is “Respecting Local Control: State Law in the Federal System.” Following the Lecture there will be a reception.
Months before 15-year-old Nia Savage was killed on Valentine’s Day 2017, James Barber was urging Mobile residents to lock up their guns…
Savage’s murder occurred by someone who stole a gun from an unlocked car during Mardi Gras. Following her death, Barber once again pushed for action…
Some of those guns have turned up following tragedies. In particular, a stolen gun take from an unlocked vehicle was used in the Jan. 20 slaying of Mobile Police Officer Sean Tuder.
If the council adopts a resolution, it most likely won’t have any teeth. When it comes to gun regulations, state law prevents local governments from acting without the Legislature’s approval.
Alabama is one of a majority of states in which state lawmakers removed the ability of local governments to regulate guns. [Emphasis added]
California Beats Back Challenge of CalSavers Retirement Plan
Courthouse News Service, 3/29/2019
SACRAMENTO, Calif. (CN) – California’s state-sponsored retirement plan for private workers cleared a major hurdle Friday, with a federal judge tossing a lawsuit brought by an influential anti-tax group that hoped to kill the program before its July launch date…
Murray and the taxpayers association sued the state over CalSavers in federal court last year, arguing the program is pre-empted by federal laws that regulate private employers’ plans. The taxpayers association, known for pushing a 1978 proposition which froze property tax rates and limited annual increases to 2 percent, calls CalSavers an unconstitutional waste of taxpayers’ dollars.
Amendments to Colorado oil and gas bill raise concerns about extent of community say over development
The Denver Post, 4/1/2019
If the Senate approves the House amendments to the bill this week, the bill will then go to Gov. Jared Polis, who has supported the legislation.
However, some of the amendments worry those who want cities and counties to have more say over oil and gas development within their borders. Of particular concern are changes and additions that say state and local regulations must be “necessary and reasonable.”
The bill originally said the state couldn’t act “arbitrarily and capriciously” when imposing regulations, which would be a higher legal hurdle for companies if they challenge the rules.
“It’s a much higher threshold of scrutiny, and we feel a lot of local governments will not want to try to regulate for fear of litigation,” Anne Lee Foster of Colorado Rising, a community advocacy group, said in an email Monday. “The industry regularly uses the threat of a lawsuit to intimidate and coerce for their gain. Many threatened communities have already experienced that.” [Emphasis added]
Curious Colorado: What Senate Bill 181 Does – And Doesn’t Do
High Plains Public Radio, 4/1/2019
The Colorado House passed a major overhaul of oil and gas regulations in a final hearing Friday morning, sending the legislation back to the full Senate one last time to approve amendments…
Local control is one of the most contentious parts of this bill. It refers to what authority cities and counties have over oil and gas development within their jurisdiction. Here’s how the bill’s sponsors summarize the changes: “Section 4 clarifies that local governments have land use authority to regulate the siting of oil and gas locations to minimize adverse impacts to public safety, health, welfare, and the environment and to regulate land use and surface impacts, including the ability to inspect oil and gas facilities; impose fines for leaks, spills, and emissions; and impose fees on operators or owners to cover the reasonably foreseeable direct and indirect costs of permitting and regulation and the costs of any monitoring and inspection program necessary to address the impacts of development and enforce local governmental requirements.”
In a nutshell, under SB 181, cities and counties would have more control over where oil and gas companies can drill. They could, for example, choose to impose local setback rules for new wells. They can also slap operators with more fines.
DENVER – One Colorado sheriff says he’d rather go to jail than enforce a gun-control bill passed by the state legislature, expected to become law. Known commonly as a “Red Flag” law, the measure would allow judges to take guns away from people who are found to be a danger to themselves or others.
The personal side of Colorado oil and gas as local control measure looms
Democrats are now pushing a bill that would fundamentally shift the role of oil and gas regulators from promoting production to protecting public safety and the environment.
It would also give local governments new authority to restrict locations for drilling rigs, which could put some areas off-limits.
Legislative opponents of drilling bill predict ruin if measure were to pass
The Daily Sentinel, 3/18/2019
That bill is only one of many Republicans call an overreach by Democrats, who control both chambers of the Colorado Legislature, the governor’s office and every other statewide elected office.
But the oil and gas reform measure, SB 181, is particularly bad for Republican lawmakers. It allows local governments to set stricter regulations on drilling wells than the state, including greater setback rules, and shifts the main focus of the state agency that oversees the industry from one that fosters development to one more concerned with environmental impacts. [Emphasis added]
Tuesday’s Afternoon Update
Florida Trend, 4/2/2019
Home rule battle heating up across Florida
In Tallahassee and across Florida, the debate of state control versus local control has heated up over the term “Home Rule”. Last week, dozens of local elected officials stood in the chambers of the Florida Senate to voice their concerns about state government wanting to thwart local control. Home Rule means that local matters are handled at the local level. While the state does have broad powers explicitly identified in the Florida Constitution, the default is for local communities to have say over things like zoning and other matters.
Summary of pre-emption bills advanced in the Florida legislature
FL Watchdog, 3/27/2019
Several measures that would pre-empt local government’s regulatory authority advanced through Florida legislative committees on Tuesday…
SB 1000, filed by Sen. Travis Hutson, R-St. Augustine, which would reduce the state’s communications-services tax and restrict the ability of local governments to collect fees from communications providers that use public roads or rights of way…
HB 847, sponsored by Rep. Bob Rommel, R-Naples, which would prevent local governments from regulating employment issues such as job responsibilities and hours of work, advanced through the House Local, Federal & Veterans Affairs Subcommittee Tuesday…
A companion Senate bill, SB 432, sponsored by Sen. Joe Gruters, R-Sarasota, who is also the state GOP chairman, was approved in a 3-2 -vote on March 12 by the Senate Governmental Oversight & Accountability Committee. It awaits hearings before the Senate Community Affairs and Rules committees.
The bills would prohibit local governments from regulating any requirements imposed on employers relating to minimum wage and conditions of employment…
HB 603 and HB 1299 were both advanced by the House Business & Professions Subcommittee Tuesday.
HB 603, sponsored by Reps. Anthony Sabatini, R-Howey-in-the-Hills, and Randy Fine, R-Palm Bay, would prevent municipalities from regulating how restaurants and other establishments distribute plastic straws to customers.
Victoria Hunter Gibney and Wendy Resnick: Raise tobacco purchase age to 21 statewide
Herald Tribune, 4/1/2019
Positive policy changes to protect youth and promote health often begin at the local level, particularly when state and federal bodies are slow to respond.
This has certainly held true with the recent wave of tobacco control policies passed in light of the growing vaping epidemic among youth. As of today, over 450 localities in 25 states, including Florida, have raised the age to purchase tobacco and nicotine products (e-cigarettes) to 21 years of age, a national movement known as Tobacco 21…
Along with the matching Tobacco 21 bills, legislation in Tallahassee is currently being considered to prohibit cities and counties from passing regulations like Tobacco 21 to protect youth from Big Tobacco. If these bills pass, the state would control tobacco retail policies solely from Tallahassee. The current state policy of setting a “floor age” for tobacco retail sales and not a “ceiling age” would be history. [Emphasis added]
Gary Resnick, commissioner, Wilton Manors
Last week: Have spent the week in Tallahassee fighting preemption of cities. These ideas do not originate with legislators but come from businesses that don’t want to pay local fees or be subject to regulations. Maybe cities should step back and not regulate or inspect anything – don’t worry about FL Building Code, public safety and let lawsuits from injuries just dictate the market. Balance, not preemption, is a better policy.
Forbes: Proposal handcuffs Iowa counties, cities
Des Moines Register, 3/22/2019
As a former Urbandale City Council member, I came to the Iowa Legislature with the thought that the state should not be tying the hands of local governments.
Your city council or county board of supervisors are best able to decide how funds should be spent: on public safety, streets and sewers, etc. They should also be able to decide how to allocate those funds.
This is what we call “local control.”
“Waging” War on Local Governance (and Appropriate Pay)
Bayou Brief, 3/27/2019
Setting a state minimum wage higher than the federal minimum wage (which was last upped in 2009) was part of Edwards’ 2015 campaign platform; part of his 2016, 2017 and 2018 legislative agendas; and setting a “modest” raise is already promised to be part of Gov. John Bel Edwards’ legislative goals for this year’s session…
It has to be done statewide, if it’s to be done at all, because of a law Louisiana’s legislature enacted in 1997. It’s state preemption of local democracy at its most egregious. [Emphasis added]
Local control is again at the heart of State House conflict over raising teacher pay
Bangor Daily News, 3/18/2019
SB 391 would hinder local control of family farmers
The Mexico Ledger, 3/26/2019
Senate Bill 391, introduced by Senator Bernskoetter, would strip local control from ALL rural counties, taking away our right to protect ourselves and our neighbors from the negative impacts of corporate-controlled industrial livestock operations, including foreign-controlled Concentrated Animal Feeding Operations (CAFOs). This bill even overturns the will of the people when farmers and rural people have voted to protect their communities from out-of-state and foreign CAFOs.
Senate Bill 391: ‘State governmental overreach at its worst’
West Plains Daily Quill, 3/22/2019
To the editor:
Corporate agri-business and their lobbyists are attempting to take away local control and our rights. Why? They would rather have decisions being made where their money and lobbyists have the biggest impact – at the state and federal levels of government. But family farmers, county commissioners and rural citizens are standing up to these attacks and fighting to protect local control.
We need local control
Barbara Edwards, Daily Star Journal, 3/19/2019
For the record, I have testified at DNR [Missouri Department of Natural Resource] public hearings in two other counties of our state, as well as Water Commission meetings. Of those testifying, approximately 90 to 95 percent were local farmers who were in opposition to confined animal feeding operations in their immediate area — many citing real concerns about nearby water wells, stench, disease carrying ammonia into lakes and ponds, reduced air quality, increased flies, loss of property values, etc…
I want local control. I don’t want our health ordinances turned over to the bureaucracy of the state.
Las Vegas massacre survivor pushes broad gun safety bill before Nevada lawmakers
Assembly Bill 291 would ban bump stocks in Nevada law, allow cities and counties to pass their own gun legislation and reduce the legal blood alcohol limit for people in possession of a firearm…
Another controversial provision of the bill has to deal with a concept called preemption. Existing Nevada law allows only the state legislature to create gun legislation, but AB 291 would repeal that provision, allowing counties, cities and towns the ability to pass stricter gun policies. [Emphasis added]
Today, Assembly Bill 291 was introduced by Assemblywoman Sandra Jauregui (D-41). This omnibus anti-gun legislation is a threat to both gun owners residing in Nevada and those who are visiting.
Most notably, this legislation:
Repeals Firearms Preemption Laws: State preemption prevents local governments from enacting their own gun control ordinances and creating a confusing patchwork of laws. Without preemption, a person could face various laws and regulations when traveling throughout the State. [Emphasis added]
Burn ’em if ya got ’em
Let me just give you some examples. The legislature voted to not allow communities across North Dakota to set their own minimum wage. They also voted to disallow any community to buyback firearms. Need another example? Well they are now taking away the rights of communities to ban plastic bags. That’s right, they are putting a ban on banning plastic bags, when they’ve probably never picked one out of the ditch themselves.
All of these are perfect examples of taking away local control, which is something that the Republican party has claimed to support for years. But time and time again they have proven to be hypocritical in support for that local control.
OKLAHOMA CITY, Okla. – Oklahoma lawmakers are considering legislation to prevent cities and towns from imposing fees on single-use plastic and paper bags.
Pittsburgh approves gun-control bills; opponents file suit against city
Pittsburgh Post-Gazette, 4/2/2019
Pennsylvania state law forbids municipalities from regulating guns, and pro-gun advocates vowed to sue to block the laws from taking effect. Last month, in an effort to write legislation that would not run afoul of state preemption, council voted to amend the bills, which had called for banning the possession of certain weapons and accessories. Instead they ban the use of those weapons and accessories within city limits. “Use” includes loading and firing.
Pittsburgh City Council passes controversial gun legislation in initial vote
PITTSBURGH – Pittsburgh City Council Wednesday morning passed its controversial gun legislation in an initial vote.
In a vote of 6 to 3, the bill would ban assault weapons and certain accessories and modifications within city limits…
The bills came out not long after the mass shooting at Tree of Life Synagogue in Squirrel Hill, but gun rights advocate and president of Firearms Owners Against Crime Kim Stolfer told Channel 11 if passed, the ban is illegal…
“We will file a lawsuit, we are also going to file criminal complaints against every council person and the mayor because it is a criminal act what they’re doing,” Stolfer said. “We are going to do everything in our power to hold them accountable.” [Emphasis added]
Senate bill would allow towns to ban firearms on public property
Bucks County Courier Times, 3/25/2019
A proposed bill from a Montgomery County lawmaker would let towns ban firearms on public property without fear of a lawsuit from organizations like the National Rifle Association.
Sen. Maria Collett, D-12, of Lower Gwynedd, said this week her bill primarily gives local officials authority to keep firearms out of public meeting spaces, but would not effect private gun ownership.
Fight against ‘emotions based’ plastic bag bans flares in SC Statehouse
The Post & Courier, 3/20/2019
COLUMBIA — New efforts to outlaw local bans on plastic bags and other single-use containers has reopened a passionate discussion between the plastic industry and state legislators who have championed such prohibitions, mostly in coastal regions.
A Senate bill that failed to pass last year was reintroduced this session and it not only would freeze future bans of plastic and foam bags, cups, bottles and other packaging but also would rescind any local laws already passed in several cities and counties.
Anti-bag ban bill passes House
Nashville Post, 3/26/2019
A bill that would prohibit local governments from banning plastic bags, straws and other items passed the Tennessee House Monday night, though the Senate sent it back for further committee consideration.
Tennessee lawmakers look to prevent ban of plastic bags
Tennessee could become the latest state to ban local municipalities from regulating certain plastic bags and utensils.
House Bill 1021 would make it illegal for local governments to impose bag bans, or restrictions on Styrofoam containers and other disposable products.
Legislators Want to Curb Local Control of Plastic Bags, Food Containers
Memphis Flyer, 3/26/2019
The Tennessee Chapter of the Sierra Club is seeking signatures to help stop bills in the Tennessee General Assembly that would ban cities’ abilities to put any restrictions on plastic bags and single-use containers…
The bill ”prohibits a local government from adopting or enforcing a resolution, ordinance, policy, or regulation that:
• regulates the use, disposition, or sale of an auxiliary container
• prohibits or restricts an auxiliary container or
• Enacts a fee, charge, or tax on an auxiliary container.”
Texas Senate moves to block local governments from partnering with abortion providers
The Texas Tribune, 4/1/2019
The Texas Senate approved in a preliminary vote Monday its first major anti-abortion bill of the session — a measure that would prohibit state and local governments from partnering with agencies that perform abortions, even if they contract for services not related to the procedure…
Anti-abortion advocates support the measure in part because it would terminate “sweetheart rent deals,” which is just one of the ways local governments partner with abortion providers. Campbell, a New Braunfels Republican, has singled out one key target during the bill’s hearing: Planned Parenthood’s $1-per-year rental agreement with the city of Austin…
Meanwhile, abortion rights advocates rail against the bill as an attack on local control. The bill would “tie the hands of cities and counties,” according to Yvonne Gutierrez, executive director for Planned Parenthood Texas Votes. She also worried that the language of SB 22, which would limit “transactions” between the government and abortion providers, is too broad and would target more than just the downtown Austin rental deal. [Emphasis added]
This morning, the Texas Senate State Affairs Committee unanimously voted out a committee substitute for Senate Bill 19, an NRA-backed measure sponsored by State Sen. Bryan Hughes (R-Mineola) that protects the rights of tenants to possess lawfully-owned firearms and ammunition in residential units, and to transport them directly en route between their personal vehicles and their apartments or condominiums. The committee removed provisions from the bill relating to commercial tenants and leases, but added protections for tenants on manufactured home lots….
House Bill 1236 by Rep. Vikki Goodwin (D-Austin) allows public colleges and universities to opt-out of Texas’ campus carry law. The net effect of this bill would be repeal of the 2015 statute, since we know that most — if not all — taxpayer-funded postsecondary educational institutions would exercise that option…
House Bill 3231 by Rep. Travis Clardy (R-Nacogdoches) makes key improvements to Texas’ existing preemption statutes to ensure uniformity in laws governing firearms and ammunition across the state. It brings limits on county authority to regulate firearms and ammunition into line with restrictions that currently apply to municipalities, and holds localities accountable by providing legal remedies for private individuals when localities violate the preemption law. [Emphasis added]
Lawsuit challenges city’s attack on 2nd Amendment
A judge allowed a lawsuit to proceed against an ordinance passed by the city of Edmonds, Washington, requiring gun owners to have “safe storage” for weapons.
The lawsuit argues the state of Washington has a law pre-empting local restrictions that conflict with state law…
A law Washington adopted 35 years ago places sole authority for firearms regulation in the hands of state lawmakers.