Who’s in Charge? Making Sense of Government Orders in the COVID-19 Response
First, questions of preemption typically arise only when there is a conflict in two regulatory schemes. In the absence of conflict, individuals and businesses should follow all applicable government directives.
Second, generally speaking, declarations of national emergency by the President and federal agencies do not preempt state and local orders.
Bipartisan Privacy Talks Split With Second Senate GOP Bill
Bloomberg Government, 3/12/2020
Individual lawsuits and preemption remain the two areas where Republicans and Democrats are at odds. Democrats, including Blumenthal and Sen. Maria Cantwell (D-Wash.), the Senate Commerce, Science, and Transportation Committee’s ranking member, are pushing for private lawsuits and opposing broad preemption in a federal bill.
Food & Nutrition Policy
Updates on the Soda Debacle
Grocery Business, 3/17/2020
Only a total of seven cities—Seattle; Boulder, Colo.; San Francisco, Oakland and Berkeley, Calif.; and Albany, N.Y.—levy a tax on soda distribution, and Philadelphia is the only one on the East Coast to do so, according to The Tax Policy Center, a Washington think tank. No new taxes have taken effect since January 2018. The beverage industry has mounted an effective counteroffensive in the past three years, backing state “preemption” legislation that now bans municipalities from passing new taxes in Arizona, California, Michigan and Washington. [Emphasis added]
Oil & Gas
All Politics Is Not Local
Conservative state legislatures are acting aggressively to preempt local ordinances
In 2014, the city of Denton, Texas, decided it was going to outlaw one of the fastest-growing industries in the state—the gas-extraction industry, which had drilled hundreds of hydraulic fracturing wells around Denton to draw fuel from the Barnett Shale, one of the largest fossil fuel reserves in North America…
The following year, the Texas legislature stepped in to overrule the Denton initiative. It passed a law that would prohibit all local governments in Texas from regulating the oil and gas industry.
Mayors ‘flabbergasted’ at list of Arizona services Ducey order protects
Phoenix Business Journal, 3/25/2020
Arizona mayors Tuesday questioned Gov. Doug Ducey’s inclusion of golf courses, pawnshops, laundries and other businesses in the definition of “essential services” that local governments would be barred from closing in response to the coronavirus.
4 Ways Colorado Lawmakers Want To Reduce The Plastic In Your Life
Supporters feel the 1989 law now stands in the way of reducing plastic pollution and the Colorado Municipal League would like to see some local control restored.
“We have a proud, long tradition and respect for both local control and home rule authority here in Colorado,” CML’s Morgan Cullen said. “Yet we’re just one of 15 other [states] across the country that actually has one of these plastic preemptions.”
Social distancing required by COVID-19 could be the tipping point in Orange County’s fight for paid sick leave
In the face of 50,000 Orange County residents who signed a petition to force the ballot measure, the commissioners carried out the bidding of the corporate lobbyists. A judge, however, later ruled that the tens of thousands of signatures required the measure to go on the ballot, which it did.
In 2013, Orange County voters passed the ballot measure, which would require employers in the county to provide 56 hours of annual paid sick leave. But a state law pre-empting the county’s ability to require paid sick leave was signed into law by then-Gov. Rick Scott.
Kudos and kicks: Riding to fight cancer; more legislative preemption
Naples Daily News, 3/16/2020
A kick to the Florida Legislature, which has taken another step in limiting home rule. The Florida House and Senate have both approved a measure that prevents local governments from regulating the types of sunscreens sold in its jurisdictions.
Local Florida sunscreen bans blocked by Florida lawmakers
Tampa Bay Times, 3/11/2020
TALLAHASSEE — When the Key West City Commission voted last year to ban the sale of sunscreens that could harm the coral reef, they celebrated.
But the law won’t go into effect in January 2021, as scheduled, if the governor signs the bill into law.
Florida lawmakers approved legislation Tuesday that prevents local governments from regulating any over-the-counter drugs or cosmetics.
Proposed Florida law a ‘nuclear bomb’ to local control of zoning, attorney says
Tampa Bay Times, 2/5/2020
REDINGTON SHORES — Pinellas County beach town officials are hoping to defeat a proposed new state law that they fear would cost them… millions of dollars in liability settlements and undermine their ability to determine their very character through changes to zoning and land use rules.
“This is a terrible bill … it is a nuclear bomb to local regulation of land use,” Jay Daigneault, attorney for two beach communities, told the Barrier Island Governmental Council last week.
Legalized gambling measures head list of Crossover Day victims
Right to Farm Act – This controversial measure ran into opposition from the farmers supporters said it was intended to protect. Pitched as a way to protect farmers from nuisance lawsuits from neighbors, environmental groups argued it would make it harder to keep out large agricultural operations such as chicken houses and pig farms that generate offensive smells and pollute nearby waterways.
Senate looks to limit suits against ag operations
The Brunswick News, 1/29/2020
A bill backed by agribusiness groups that seeks to limit lawsuits against agriculture operations received new life Tuesday in the state Senate, as the Senate Agriculture and Consumer Affairs Committee debated a substitute to House Bill 545.
Letters to the editor Tuesday: Legislation would harm Georgia farmers
Savannah Now, 3/9/2020
HB 545 will weaken the current Right to Farm Law, which does a fine job protecting farmers, while taking away property rights that Georgia farmers and landowners have had since before the time of my great-great-grandfather. For more than 150 years, existing farmers and rural landowners have had the right to bring a case to stop a nuisance created by a big industrial agriculture operation that moves next door and damages their properties or quality of life within four years of the damage.
HB 545 throws out this ancient property right by taking away the right to stop the nuisance if it does not start within two years of the operation moving in, no matter how much damage the operation eventually causes. When a big hog or cattle waste lagoon operation moves in and after a few years starts giving off noxious odors, swarms of flies, and polluted water, the farmers and landowners that were there first will be powerless to stop the nuisance.
Panel: Ammunition, gun taxes not ‘prohibitive’
Chicago Daily Law Journal, 3/19/2020
The 1st District Appellate Court has ruled a $25 fee for gun purchases and 5 and 1-cent surcharges on ammo do not violate the federal or state constitution…
Hall, joined by Justices Mary K. Rochford and Mathias W. Delort in the ruling Friday, also rejected claims the county taxes were unconstitutionally arbitrary and preempted by statewide laws.
The Schultz Perspective
Pilot-Tribune Enterprise, 3/23/2020
This year’s big bill to protect your right to keep and bear arms is House File 2502. This bill is being referred to simply as the “Preemption Bill.” This bill strengthens and clarifies current Iowa law. In 1990, the Iowa Legislature put into place the first legislation to make clear that firearms law in Iowa will be made at the state level.
Iowa: Range Protection & Preemption Bill to Senate Floor
House File 2502, previously House Study Bill 615, protects shooting ranges from onerous or burdensome zoning regulations…
In addition, HF 2502 also strengthens Iowa’s firearm preemption law by affirming that modifications, firearm attachments, and other weapons are also protected. Preemption legislation is designed to stop municipalities from creating a patchwork of different laws…
In coronavirus, industry sees chance to undo plastic bag bans
The Baltimore Sun, 3/27/2020
The plastic bag industry, battered by a wave of bans nationwide, is using the coronavirus crisis to try to block laws prohibiting single-use plastic.
House Bill 5286, Preempt local knife regulations: Passed 71 to 36 in the House
To preempt local government ordinances or rules on the transportation, possession, carrying, sale, purchase, manufacturing, etc. of a knife or knife-making components. A similar preemption restricts local gun regulations.
Rep. Howell continues fight against bill to eliminate mining regulations
Michigan House Republicans, 1/31/2020
State Representative Gary Howell (R -North Branch) this week testified in opposition to Senate Bill 431 in the Senate Transportation Committee.
The Senate bill, if enacted, would strip away local control and give aggregate companies full authority to establish gravel mines anywhere in Michigan regardless of what the local citizens and their township officials say and regardless of health and safety issues.
Opinion: Respect local control over mining
Paul Mitchell, Detroit News, 1/29/2020
As the U.S. representative for Michigan’s 10th Congressional District, it is my duty to represent my constituents and district wherever necessary. Last week, it took me to Lansing to testify in opposition to a Michigan Senate bill (SB 431) that effectively eliminates local control over aggregate mine decisions and eases approval of permits for such mines in Michigan. Constituents contacted me to help voice their significant concerns about the impact this legislation could have upon human health, the environment, and their communities.
Mississippi: Legislature Suspends Session Including HB 1215
House Bill 1215 Report
On Tuesday, the Mississippi House of Representatives passed House Bill 1215 by Rep. Shane Barnett (R-Greene, Perry & Wayne Cos). The House approved this positive change to the state firearms preemption statute by a vote of 81-36. The measure now heads to the Senate for consideration.
House Bill 1215 adds state agencies to the existing preemption statute that limits the authority of cities and counties to pass arbitrary restrictions on firearm possession.
CAFOs a danger to local control, family farms
West Plains Daily Quill, 3/14/2020
Under the new law, local standards regulating industrial-scale livestock operations cannot be stricter than any of those set by the state. Local control is the difference between over 10,000 CAFOs in Iowa with over 700 significantly polluted bodies of water, and 500 CAFOs here in Missouri. [Emphasis added]
New vaping bill raises legal age to purchase
Daily Lobo, 3/9/2020
SANTA FE — The New Mexico Tobacco Regulation Act (Senate Bill 131) was signed into law on Wed. March 4…
Public health advocates saw this bill as a good first step, but expressed disappointment regarding the lack of restrictions on e-cigarette flavorings and the failed attempt to repeal the preemption clause.
Port: Secretary of State approves petitions aimed at abolishing North Dakota’s property tax
The Dickinson Press, 3/16/2020
In plain language, the measure… Prohibits state and local governments from raising revenue from a property tax…
Close Vote: Fargo ND Investigates Removal of Zoning Ban on Selling Firearms
North Dakota has a strong preemption law, which prohibits local governments from passing restrictions on the exercise of Second Amendment rights.
The zoning code appears to violate the state preemption law. Some case law argues zoning law is exempt from state preemption. This may be the case when the law applies to all commercial sales, not to firearms sales alone.
Could the Ohio River have rights? A movement to grant rights to the environment tests the power of local control
Environmental Health News, 2/4/2020
Can you imagine if the Ohio River and its tributaries had legal rights? While speculative, the idea isn’t necessarily far-fetched. This month marks the one-year anniversary of residents in Toledo, Ohio, bestowing Lake Erie with its own bill of rights.
In 2014, Ohio declared a state of emergency after about 110 people fell sick from an algae bloom and about half a million area residents were instructed not to drink tap water for three days. Unhappy with existing state and federal environmental protection, area activists got creative.
South Dakota Is the Latest State Looking to Outlaw Plastic Bag Bans
Food & Wine, 1/31/2020
Growing concerns over plastic waste—especially from single-use items like bags and straws—has been a huge topic of discussion in recent years. As a result, a number of U.S. states have passed bans on these items. But thanks in part to America’s polarized political landscape, we’ve seen another, opposite response as well: Other states have chosen to pass bans on these kinds of bans themselves, preempting local governments from stepping in and taking matters into their own hands.
Judge Blocks Dallas From Enforcing Sick Leave Requirements
Courthouse News Service, 3/31/2020
How The Coronavirus Pandemic Exposed Abbott’s Hypocrisy On Local Control
[Governor Abbott’s] championing of local control, even as he invoked state intervention, falls in sharp contrast to his relentless and hostile attack on cities and counties in recent years, laying bare the hypocrisy of his ideological war on municipalities. Abbott only trusts democratically elected councils and commissions, mayors, county leaders, and school boards to make the best choice for their local communities, it seems, when they aren’t implementing local regulations largely meant to help the working class and the most vulnerable among us.
Outgunned in Galveston: Texas wrong to supersede modest local control
Editorial Board, Houston Chronicle, 2/3/2020
“The Office of the Attorney General demands that the City repeal these regulations and any like them immediately,” Assistant Attorney General Cleve Doty wrote. “Rather than file litigation now, we are confident that the City of Galveston intends to comply with Texas law and will rescind regulations that are in violation of Texas law.”
The message was a reminder that state law prohibits municipalities from “adopt[ing] regulations relating to: the transfer, possession, wearing, carrying, ownership, storage, transportation, licensing, or registration of firearms.”
And how exactly had the city so brazenly defied the state?
Gun legislation: Here’s what the Virginia General Assembly passed
The measure allows Virginia localities to ban guns in public buildings, parks and other areas, including recreation and community centers. The law also applies to streets where events or rallies requiring permits are taking place.
(Previously, the state’s firearms preemption law had barred cities and towns from passing their own gun control measures).
Need a bag? Your choices may soon be paper or thick plastic
A bill imposing a statewide ban on single-use plastic bags is on its way to Gov. Jay Inslee. The measure, if signed, would preempt similar prohibitions in force in four cities in Snohomish County.
City in Washington includes ban on alcohol and gun sales in proposed coronavirus emergency plan
The NRA explained that the preemption statute maintains “consistency of firearm and ammunition laws throughout the state. The State Legislature retained full authority to regulate and create laws pertaining to firearms and ammunition to ensure such consistency.”
How about paid sick leave, now?
Wisconsin Examiner, 3/16/2020
Subeck’s bill would overturn a 2011 act of the legislature that overrode local control in Milwaukee, and other communities, prohibiting municipalities from enacting a local sick-leave law.