New Research
Report: State preemption laws disproportionately hurt women, people of color
TheLensNOLA.com, 5/8/2019
State laws that prevent local governments from making their own rules on issues like affordable housing and minimum wages are especially detrimental to women and people of color. That’s according to a new report from the Partnership for Working Families, a national coalition of advocacy groups.
The report uses Louisiana, Pennsylvania, Tennessee and Colorado as case studies on these so-called “preemption laws.”
For more about recent preemption research, see Research Roundup at the end of this newsletter.
National
Tobacco
When writing a federal Tobacco 21 law, less is more
The Hill, 5/3/2019
[A] federal law could do more harm than good if it interferes with successful state and local tobacco control efforts. Cities like Columbus, Ohio, have learned from the experience of other communities and have devised effective Tobacco 21 policies that protect young people and hold retailers accountable. Other communities are leading the charge to prohibit the sale of menthol cigarettes that target African-American communities and to otherwise explore innovative approaches to reducing youth tobacco and e-cigarette use. A federal law that expands federal preemption of state and local tobacco policy could stifle this experimentation and progress. [Emphasis added]
In Washington, Juul Vows to Curb Youth Vaping. Its Lobbying in States Runs Counter to That Pledge.
The New York Times, 4/28/2019
The company’s 80-plus lobbyists in 50 states are fighting proposals to ban flavored e-cigarette pods, which are big draws for teenagers; pushing legislation that includes provisions denying local governments the right to adopt strict vaping controls; and working to make sure that bills to discourage youth vaping do not have stringent enforcement measures. [Emphasis added]
Agriculture
Auburn Study Suggests Right-To-Farm Laws Fail Small, Medium Growers
Southeast Produce Weekly, 5/9/2019
Alabama Senate prevents ban on plastic bag bans from coming to vote
Montgomery Advertiser, 5/7/2019
A Senate bill that would have prevented cities and municipalities from banning plastic bags lost a procedural motion on Tuesday, preventing it from coming to a vote.
Auburn University study is first to analyze right-to-farm laws
Eagle Eye TV 6, 5/6/2019
Raising tobacco buying age to 21 raising concerns about vaping
KOLD.com, 4/30/2019
Senate Bill 1147 would raise the to age to buy tobacco products to 21 from 18, but also strip away nearly every local regulation now in place, including for retailers who sell to anyone underage and how far tobacco shops have to be from schools.
Lawmaker warns against bill pushed by vaping industry
Arizona Capitol Times, 4/29/2019
Sen. Heather Carter, school leaders and members of the health community warned lawmakers against agreeing to legislation pushed by Juul Labs and other vaping companies that would preempt local governments from regulating the sale and marketing of tobacco and vaping products.
“What big tobacco wants is the preemption of any local municipality from restricting sales and marketing. That’s their big goal above everything else,” said Carter, R-Cave Creek. [Emphasis added]
Vaping industry, health groups spar over dueling bills
AZ Mirror, 4/29/2019
For the vaping industry, the legislation is a trade-off. In exchange for raising the purchasing age to 21, the industry would get a statewide preemption law barring cities, counties and other political subdivisions from imposing their own regulations on vaping and tobacco.
Opinion
My View: Tobacco industry should be fought back again
Phoenix Business Journal, 5/3/2019
From the perspective of the tobacco industry, there is no bigger prize than the enactment of state-level measures that preempt efforts by cities and towns to enact their own tough clean air ordinances. This kind of state legislation represents the holy grail of tobacco industry objectives across the country, because tough local smoking ordinances are the most effective tool in reducing tobacco use over time. [Emphasis added]
Coveting local control, City Council opposes state bill to boost housing density
Long Beach Post, 5/7/2019
The Long Beach City Council told statewide lawmakers to stay out of the city’s real estate market Tuesday night while simultaneously asking Sacramento to aim future legislation at other cities if it wants to solve the housing crisis.
They voted 8-0 to oppose Senate Bill 50, a bill authored by Bay Area lawmaker Scott Weiner that could strip local municipalities of some control over land use as a means to increase density and boost overall housing production. By opposing the bill, Long Beach joins other large municipalities like Los Angeles and San Francisco.
County Joins Suit To Preserve Local Control Over Cannabis
Patch.com, 4/30/2019
Santa Cruz County has joined a geographically diverse coalition of local governments in a lawsuit against the California Bureau of Cannabis Control (“BCC”), seeking to invalidate new state regulations undermining the will of voters and the law by purporting to allow delivery of commercial cannabis statewide regardless of any local law or regulation. [Emphasis added]
Opinion
California’s zombie 4 a.m. bar bill lacks justification
San Francisco Examiner, 5/4/2019
Arguments for California to allow alcohol sales until 4 a.m. stagger around like a lost zombie. Supporters of the 4 a.m. bar bill keep coming back with new arguments to hide unavoidable truths: later bar closing times are harmful to neighborhoods, commuters and young adults but profitable for a few night clubs, hotels and restaurants. State Sen. Scott Wiener (D-San Francisco) promotes Senate Bill 58, zombie legislation that haunts the lives of California’s residents driving to work or simply trying to sleep. Here are some of the specious arguments and responses.
Editorial: With McGuire’s help, housing bill is headed in right direction
Marin Independent Journal, 5/4/2019
The goal makes sense: Bringing housing, transit and jobs together within walking distance is a lot smarter than suburban sprawl and long commutes that have occurred across much of California.
But Sacramento should leave the job for locals to regulate much-needed housing on the right sites, with the appropriate designs and at densities that make sense for their geography and economy. At the same time the legislation needs to ensure that local officials are committed to building their fair share of affordable housing.
A Line in the Sand: Weld County & Boulder County
National Law Review, 5/8/2019
One of the ramifications of S.B. 181 is increased local control, allowing Colorado cities and counties more control over drilling operations through local zoning ordinances and land use regulations. Hence, a line in the sand is beginning to be drawn between Boulder and Weld Counties…
Bill to allow local control of minimum wage standards passes Colorado legislature
KMGH, 5/4/2019
Colorado legislators passed a bill during the last week of the 2019 session to allow local jurisdictions to set their own minimum wage standards.
Jeff Robbins, state’s top oil and gas regulator, talks local control and setbacks
The Colorado Independent, 4/29/2019
Jeff Robbins now leads the state commission he once took to court.
The attorney from Durango spent two decades helping local governments regulate the booming oil and gas industry. Several such battles pitted him against the Colorado Oil and Gas Conservation Commission, a state agency that has long promoted drilling.
His appointment to the commission marks a profound philosophical shift in how Colorado oversees the $31 billion industry.
Plastic Bag Ban Moves Forward in Branford
Branford Seven, 5/8/2019
A potential law banning single use plastics bags is moving forward in Branford, even as the state looks at creating its own law.
However, the state is also working on a plastic bag law. With the state session ending in 4 weeks, a state law may preempt any local ordinance. [Emphasis added]
Plastic straws are out: Ron DeSantis vetoes prohibition of local straw bans
Tampa Bay Times, 5/10/2019
Gov. Ron DeSantis flexed his veto power for the first time late Friday, declining to sign an environmental bill that would have prohibited local governments from banning plastic straws for the next five years.
In his veto letter to Secretary of State Laurel Lee, he said municipalities who prohibit plastic straws have not “frustrated any state policy” or “harmed the state’s interest.”
Cities complain that in the session just ended, Legislature stepped on local control
Miami Herald, 5/8/2019
For the conservative majority of the Florida Legislature, the government closest to the people does not necessarily govern the best.
When the legislative session ended on Saturday, local governments across South Florida began to take stock of the powers that had been stripped away from them and given to the state. They include the ability to ban plastic straws, require tree removal permits and regulate vegetable gardens. Local governments also face new restrictions on community redevelopment agencies.
Florida League of Cities: Local Control Survived the Assaults From Tallahassee
Florida Daily, 5/6/2019
With the 2019 legislative session now in the rear view mirror, the Florida League of Cities (FLOC) is happy to see it over.
On issues ranging from banning plastic straws, impact fees and short-term rentals, the FLOC felt under attack.
Bill banning local sunscreen, plastic straw bans among preemption measures likely to pass
FL Watchdog, 4/30/2019
The House Monday approved a bill that includes seven state preemptions of local government authority – including prohibiting bans on sunscreen and single-use plastic straws – in a mostly-partisan 71-40 vote…
House Bill 1299, sponsored by Rep. Spencer Roach, R-North Fort Myer, would also restrict municipalities’ ability to:
- Annex or purchase properties in another municipality;
- Levy taxes on nicotine products, establish a minimum age for the purchase of nicotine products, establish marketing requirements for nicotine products;
- Regulate alternate generated power sources for motor fuel dispensing facilities;
- Establish temperature requirements at assisted living facilities when such facilities;
- And approve a school district impact fee if the fee results in an increase of 5 percent or more over a two-year period.
Anti-smoking campaigns, local regulations threatened by language buried in Tobacco 21 bills
Tallahassee Democrat, 4/26/2019
Public health and anti-tobacco advocates say the House version goes to the heart of the state’s multi-million dollar anti-tobacco campaign by killing local government regulation of sales and marketing for tobacco and e-cigarette products. And they see it as part of a coordinated effort on a national level by Big Tobacco to weaken those regulations in other states.
Amends the State Finance Act to create the Checkout Bag Tax Fund. Provides that moneys in the Fund shall be remitted to counties and municipal joint action agencies. Amends the Counties Code and the Illinois Municipal Code to preempt certain actions by counties and municipalities concerning auxiliary containers or checkout bags. [Emphasis added]
Iowa Mayors say ‘heavy hand’ of Legislature getting heavier
The Gazette, 5/3/2019
Whether the issue is property taxes, caps on rental property, traffic cameras or the minimum wage, the mayors don’t like what they see as an increase of interference in local governance.
Legislature focused too little on improving Iowa, too much on petty, vindictive measures
Des Moines Register, 4/29/2019
Trampling on local control
Remember how the GOP used to advocate for “local control”? Well, those days are gone. Lawmakers approved a bill requiring local governments to jump through more hoops to raise property taxes. It requires public hearings and a two-thirds majority vote of the local board or council to approve a property tax levy that generates a revenue increase of 2% or more.
Apparently city leaders across Iowa are supposed to be grateful the final version of the legislation was scaled back. Instead, they might want to tell state lawmakers to take care of their own budget and let local officials take care of theirs.
State Court Upholds the Right of Local Governments in Maryland to Restrict Pesticides on all Lawns in Their Jurisdiction
Beyond Pesticides, 5/3/2019
The chemical industry has fought for nearly three decades to suppress the right of local governments in the U.S. to protect public health and safety with pesticide law, having successfully lobbied 43 states to preempt their local political subdivisions’ authority. Seven states uphold local authority, including the state of Maryland, which has affirmed in its legislature the rights of localities by rejecting preemption legislation on numerous occasions.
HB 771. An Act reducing plastic bag pollution.
Section 3. Nothing in this chapter shall preempt further limitation of single-use carryout bags by any political subdivision of the Commonwealth enacted after the enactment of this law; provided, however, that any municipality with an existing ordinance or by-law banning plastic bags shall be null and void on August 1, 2019. [Emphasis added]
State Senate votes to stiffen penalties for those who aim to damage pipelines
Duluth News Tribune, 4/29/2019
Local minimum wage and paid leave ordinances up for cancellation
The proposal would also preempt local ordinances that aim to raise the minimum wage and require employers to let employees bank sick leave.
Opinion
Editorial: Stripping local control is the pits
The Detroit News, 5/2/2019
Michigan lawmakers are contemplating reviving a bill that would force a large gravel pit on the tiny village of Metamora. Usurping the community’s local control over zoning is a misguided move that could have ramifications for towns throughout the state. This was a bad idea in last year’s lame-duck session, and it remains so.
Bill could take away local control of animal feeding operations
KOMU.com, 5/9/2019
FULTON – Jeff Jones is a fourth generation farmer who now lives about a quarter of a mile away from 10,000 pigs.
Jones fought the Concentrated Animal Feeding Operation, or CAFO, since 2014. Now he’s fighting to make sure counties still have the ability to make their own rules regarding such operations.
Senate Bill 391 would require counties to stick to state regulations, even if they want stricter controls.
“We need local control so we can put in health ordinances and regulations that are stronger than the state regulations,” Jones said.
In Missouri, lawmakers are poised to eliminate local regulation of CAFO
Fern’s AG Insider, 5/7/2019
Communities in Missouri have been fighting the expansion of large-scale livestock operations in the state for years. But a controversial pair of bills moving through the state legislature would make community oversight of those farms even harder. The bills would eliminate local ordinances that regulate industrial animal farms in the state, or make it impossible to enforce those ordinances. The bills mirror trends in other states where legislators have moved to undermine local control of large-scale livestock farms. [Emphasis added]
MO Bill Would Remove Local Control Of Ordinances Regulating Work Animals
KRCU.org, 5/6/2019
Agricultural tourism and education – like carriage ride businesses, safaris and wildlife field trip tours – are important industries in Missouri, and owners of working animals want to remove the possibility of local bans disrupting these animal enterprises.
Missouri Rural Crisis Center says CAFO bill does not respect local control
Missourinet.com, 5/3/2019
The Missouri Rural Crisis Center is disappointed the state Senate has passed a bill that would protect large livestock feeding operations, known as CAFOs, from county regulations that are stricter than state regulations. Tim Gibbons says there is a “huge outpouring” of opposition to proposed protections on CAFOs.
Anti-CAFO Lobby Day argues for more ‘local control’
News Tribune, 4/30/2019
Missouri lawmakers should reject three bills that opponents said take away local control over confined animal feeding operations in the state.
That was the message Monday from several dozen Missourians who came to the Capitol from at least 16 counties to lobby against the measures.
Why would Missouri lawmakers take local control of school calendar away from districts?
The Kansas City Star, 4/29/2019
Legislation that would wrest control of the school calendar away from local Missouri districts is a short-sighted play for tourism dollars that could have long-term consequences.
A Missouri Senate committee has advanced a bill that would mandate when districts can start the school year, an ill-conceived effort to give tourism-related businesses more time in August to reap the financial benefits of summer vacations. House Bill 161 would prohibit local school districts from beginning the school year more than 14 calendar days before the first Monday in September.
Opinion
Local control is under attack, in rural and urban Missouri
The St. Louis American, 5/9/2019
Then lobbyists in our state capitol convinced our state legislature to override the local minimum wage ordinance and take away the right to local control.
Our legislature’s blatant disregard of the will of the citizens and our local control was met with voter outrage and spurred a ballot initiative petition. Over 120,000 signatures were collected to put Prop B on the November ballot. The ballot measure, which increases Missouri’s minimum wage to $12 by 2023, passed statewide by a 62 percent to 38 percent margin.
Opinion
Montana: Governor Vetoes Preemption Legislation – Will be Placed on the 2020 Ballot
NRA-ILA, 5/7/2019
Local municipalities in Montana have stretched the state’s preemption statutes to their own ends by passing anti-gun laws ranging from criminalizing private transfers to banning where people can lawfully carry a firearm for self-defense… House Bill 325 and House Bill 357 seek to strengthen Montana’s current preemption laws by further restricting the ability of local municipalities to enact a complex patchwork of gun laws throughout the state.
Analysis of Governor Bullock’s Veto of Montana’s Much Needed Preemption Reform Bill
Ammoland, 5/6/2019
In his second paragraph, Bullock says: “House Bill 325 would end local decision-making about whether felons and the mentally ill can carry weapons in public.” First, local governments in Montana have had no real authority over this for decades because it is illegal under federal law for both of these classes of people to possess firearms.
Montana Victory on the Second Front of the War to Restore the Second Amendment
Ammoland.com, 4/29/2019
Montana recently passed a strong preemption statute for knife law. The law passed the House 99 yes, with 1 abstention, on January 29, 2019. It passed the Senate, 49 yes, with 1 abstention, on 19 March, 2019. On 27 March it was transmitted to Governor Bullock. On 3 April, 2019, it was signed by Governor Bullock. The knife preemption law provides core support for Constitutional Carry for knives in Montana.
Compromise on Neb. Right to Farm Law
WNAX.com, 4/30/2019
Nebraska State Senators have reached a compromise on improvements to the Right to Farm Law. The agreement allows protections for large agricultural operations from nuisance lawsuits but puts in a statute of limitations on when those can be filed…
Despite charges by opponents the legislation takes away from local control, Mick says that’s never been the intent of the measure.
Opinion
Letters: Demand Gov. Sununu Veto SB 43 and preserve local control over land development
ManchesterInkLink.com, 5/9/2019
The NH legislature, in complete disregard of NH’s locals, passed NH SB 43 to “study barriers to increased density of land development in NH.”
The [Union Leader] came out against creating a state-level board allowing developers to override local zoning decisions (HB 104, SB 306). The UL stood with us for local control. SB 43 would hand the fate of our towns over to a commission of biased pro-urbanists and special interests scheming to circumvent local control.
PREEMPTIVE STRIKES: BAGS, GUNS, ZONING, AND A LIVING WAGE
High Plains Reader (Fargo), 5/1/2019
Paper or plastic? North Dakota Senate says cities can’t ban plastic bags, other containers
Grand Forks Herald, 3/20/2019
BISMARCK — The North Dakota Senate voted to prevent local governments from regulating plastic bags and other containers Wednesday, March 20.
House Bill 1200 passed in a 31-14 vote and now moves to Gov. Doug Burgum. If he signs it, political subdivisions wouldn’t be able to ban, restrict or impose fees on an “auxiliary container,” which encompasses bags, cups, straws and other packaging made from plastic, paper, aluminum and other materials.
HB 1200 (Signed by Governor 3/28/2019) AN ACT to create and enact section 23‑29‑07.12 and a new section to chapter 23.1‑08 of the North Dakota Century Code, relating to prohibiting a political subdivision from regulating an auxiliary container…
Opinion
Use local control concerning feedlots
Bismarck Tribune, 4/26/2019
Just a comment on the setback legislation under consideration for animal feed operations. I do hope that before such a bill is fully legalized, a group of the House and Senate legislators take a drive to southeast Colorado, or western Nebraska or Kansas feedlots…
The odor can be overwhelming, so locals should be making the decision where to allow placement of any feedlots. Locals know the business better than do any of the rest of us. They know the prevailing winds, where people live, and where the runoff would cause the least damage.
Oklahoma Preemptively Blocks Local Plastic Bag Regulations
Governing, 4/26/2019
With the stroke of a pen, Gov. Kevin Stitt has ensured that cities and counties in Oklahoma will not be allowed to regulate plastic bags and auxiliary containers…
“It’s a shame that Gov. Stitt would mark his 100 days in office by signing a bill that epitomizes government overreach and continues the trend of preemption that is crippling municipal government in Oklahoma,” Clark said. “I was hopeful he was serious about valuing local control, but his signature has proven me wrong.”
Opinion
Tell your lawmakers to reject these bills gutting local gun-control ordinances | Opinion
Pennsylvania Capitol-Star, 5/3/2019
Instead of working to save lives and reduce violence, the Senate Local Government Committee chose to revive a punitive bill allowing gun groups to sue cities and town across Pennsylvania that choose to enact gun ordinances stronger than existing state law.
Bag Ban Supporters Want Statewide Ban Bills Changed
EcoRI.org, 5/6/2019
Dave McLaughlin, executive director of Middletown-based Clean Ocean Access (COA) and a member of the task force, said he expects an “up-swelling of opposition” unless flaws in the Senate and House bills (S0410 and H5671) are corrected.
McLaughlin said the drawbacks include a uniformity clause that preempts and therefore nullifies the 12 existing municipal bag bans. The provision prevents cities and towns from enforcing current rules, such as those that prohibit retailers from offering thicker plastic bags, often marketed as reusable bags, as replacements for the standard “thin-film” plastic bag. [Emphasis added]
The Texas GOP’s War of Municipal Aggression
Texas Observer.org, 5/8/2019
With their approval of a bill to “protect” Confederate monuments from liberal city halls, Senate Republicans exposed the raw racial dynamics of the party’s preemption crusade.
If Pain, Yes Gain—Part 64: Dallas Passes Paid Sick Leave Ordinance Despite Potential Legislative and Judicial Antidotes
Seyfarth Shaw, 5/7/2019
On April 24, 2019, the Dallas City Council passed the Earned Paid Sick Time ordinance (the “Dallas Ordinance”). Dallas is the third municipality in Texas to pass a paid sick leave ordinance…
Whether the Dallas, San Antonio, and Austin ordinances will ever go into effect is currently unclear as multiple pieces of legislation that would preempt all three ordinances make their way through the Texas state legislature…
‘If you can’t beat them, silence them’: City leaders, Texas Legislature at odds over local control
DallasNews.com, 5/5/2019
“I call it the Goldilocks form of government,” Sandlin told a group of reporters. “The feds are big and bad, the cities are small and bad, but somehow states get it just right.”
Sandlin could be out of his job advocating for Texas cities if a bill passes this month that makes it illegal for local governments to spend taxpayer dollars on hiring lobbyists and joining associations like the one he leads.
Opinion
Texas: House Finishes Up Action on More Pro-Gun Bills & Senate Committee Sets NRA-Backed Evacuation Carry Bill for Monday Hearing
NRA-ILA, 5/10/2019
The Senate State Affairs Committee has not yet heard House Bill 3231 by Rep. Travis Clardy. This key NRA-supported measure protects Texas gun owners and firearm retailers by modernizing the state’s existing firearms preemption statutes to ensure more uniform treatment of firearms and ammunition across the state. It brings preemption provisions affecting counties into line with more extensive preemption language that currently applies to municipalities. And it ensures enforcement of these protections by providing adequate legal remedies by private individuals adversely impacted when a municipality or county violates Texas’ preemption laws.
Texas: NRA-Backed Tenants’ Rights Bill Headed To Governor Abbott
NRA-ILA, 5/6/2019
On Thursday, the Texas Senate voted 25-6 to give final approval to House Bill 302 by Rep. Dennis Paul (R-Houston), NRA-supported legislation that prohibits “no firearms” clauses in residential leases. This will protect tenants’ rights to possess lawfully-owned firearms and ammunition in dwelling units and on manufactured home lots, and to transport their guns between their personal vehicles and those locations. This bill now goes to Governor Greg Abbott for his signature…
Why put Texas business at risk instead of making a simple fix?
TribTalk.org, 4/30/2019
In a state in which 66% of Texans agree that LGBTQ people should be protected from discrimination, it is troubling to think that lawmakers might unnecessarily trade away these nondiscrimination ordinances — popular with Texans from all walks of life — for other political goals. Putting these NDOs at risk sends the wrong signal for a 21st century Texas. If the intention of these bills is to leave NDOs out of the conversation entirely, there is a simple way to put the issue to rest: Put that NDO clause back into these bills and send them on their way.
ENTERPRISE EDITORIAL: Legislature should let cities regulate themselves
Beaumont Enterprise, 4/25,2019
The Texas House and Senate have enough state business to occupy their time, especially because the Legislature meets only every two years in regular session. Because of that reality, those lawmakers should stop spending time on bills that would regulate how cities in Texas conduct their own affairs.
Texas: House Will Vote on Two More NRA-Backed Bills Monday!
NRA-ILA, 4/26/2019
House Bill 3231 protects Texas gun owners and firearm retailers by modernizing the state’s existing firearms preemption statutes to ensure more uniform treatment of firearms and ammunition across the state. It brings preemption provisions affecting counties into line with more extensive preemption language that currently applies to municipalities. And it ensures enforcement of these protections by providing adequate legal remedies by private individuals adversely impacted when a municipality or county violates Texas’ preemption laws.
Legislature passes “lid lift” local tax rules for schools
SFGate.com, 4/29/2019
OLYMPIA, Wash. (AP) — Washington lawmakers reached a deal to lift the state’s “levy lid” in a late vote Sunday, blunting a tightening of limits on voter-approved local taxes for schools that was set to take effect this year.
Jennifer Pomeranz on Food Policy and Industry Tactics Driving Preemption
Duke Sanford World Food Policy Center, 4/25/2019
In the past several years, cities in California led the way in passing taxes on sugar-sweetened beverages. Berkeley was first with Oakland, San Francisco and Albany, California following, each with the aim of improving public health by decreasing consumption of beverages known to be associated with obesity, diabetes, and other medical issues, and to raise revenue for needed programs. But then something historic happened: preemption. A leading expert on the application of the law on public health and on the issue of preemption is Jennifer Pomeranz.
Property rights and rural justice: A study of U.S. right-to-farm laws
Ashwood L, Diamond D, Walker F. Journal of Rural Studies. 67:12-129. April 2019.
Right-to-farm laws initially were touted as an attempt to preserve farmland and the farming way of life in the face of urban sprawl during the 1980’s… Closer studies of such laws suggest that they have little to do with preserving a farming-centered way of life, and have more to do with preempting local land use controls and limiting environmental rights and protection of natural resources, often to the detriment of rural people (Hamilton, 1998). [Emphasis added]
