Preemption Watch Newsletter December 1, 2020


ResearchCOVID-19: Eliminating Local Emergency Authority Expands a Dangerous State Trend
Sarah Wetter, O’Neill Institute for National and Global Health Law, Georgetown University; Emily Carey, Sandra Day O’Connor College of Law, Arizona State University. 2020.Starving counties, squeezing cities: tax and expenditure limits in the US
Journal of Economic Policy Reform, Volume 23 Issue 2 (2020).NationalToxic ChemicalsOpinionEPA by Fiat Overturns State Authority to Restrict Pesticides in the Face of Its Faltering Programs
Beyond Pesticides, 11/13/2020The toxic herbicide dicamba is once again at the center of a larger story about states’ authority to regulate pesticides beyond federal dictates. The Trump EPA (Environmental Protection Agency) has just made it much harder for state regulations to be more protective than federal rules are.Paid Sick DaysAirlines’ Wash. Sick Leave Fight Faces Turbulence At 9th Circ., 11/17/2020Firearms


SAF Rising as 2A Warrior, Challenging Restrictive Carry Laws, 11/16/2020

Cases haven’t always been about right-to-carry, either. SAF has been involved in legal actions to thwart gun bans in public housing, stopping local municipal governments from instituting regulations in defiance of state preemption laws, and in at least two cases, defending the First Amendment. [Emphasis added]


Conservatives Made It Easier for Coronavirus to Spread
Washington Monthly, 6/13/2020

Beyond soda taxes, eight states have preemption laws that limit local control over other aspects of nutrition, such as portion sizes and promotional games and toys. According to Grassroots Change and Preemption Watch, these laws resulted from aggressive, costly lobbying efforts by food and beverage industry groups to limit local control over nutrition and food policy. Ten states prohibit localities from regulating e-cigarettes.


Covid-19 Cases Dropped by 75% in One State After Local Leaders Were Allowed to Require Masks, 10/15/2020

What the report does not mention is that prior to June 17, county and city officials in Arizona lacked the authority to pass or enforce local mask mandates. Gov. Doug Ducey, a Republican, had before then refused to allow local leaders to enact their own policies, part of an executive order that stated that cities, counties and towns could not pass anything that “conflicts with or is in addition to” statewide restrictions (Arizona does not have a statewide mask mandate).


LRSD School Board Candidates: Vicki Hatter, Zone 6
KUAR (NPR), 10/19/2020

“I’ve been advocating for our school district for the last six years; prior to the state takeover, but even moreso after [the] state takeover. And so it’s very important to have people that have been in the fight for return of local control as well as having a wide enough network on both sides to bring together and get the district back on track.”


Rural County Representatives of California Reports Court Ruling Affirms Local Authority Over Cannabis Deliveries
Sierra Sun-Times, 11/21/2020

Rural County Representatives of California (RCRC) reports California’s cannabis laws broadly protects local governments’ authority to regulate or prohibit the “establishment or operation” of state-licensed cannabis businesses within their jurisdiction.  This was a key feature of both Proposition 64, which legalized adult use cannabis activities, and the prior medical cannabis licensing laws enacted by the Legislature.

Dixon City Council suggests local control over campaign contributions
The Reporter, 11/19/2020

Rather than adhering to the state’s default limit of $4,700 on individual campaign contributions, the Dixon City Council opted for the city to establish its own limits at Tuesday’s meeting.

State Reauthorizes HACHR’s Syringe Exchange Program, But Gives Eureka More Control
Lost Coast Outpost, 10/8/2020

On Wednesday, the Humboldt Area Center for Harm Reduction‘s controversial syringe exchange program was granted a two-year reauthorization by the California Department of Public Health (CDPH). However, the state’s reauthorization specifically excludes the City of Eureka, where HACHR is based, which means that if the organization wants to continue operating within city limits, it is once again bound to comply with the city’s rules and regulations.


Doctors Call on DeSantis to Allow Tougher Local Restrictions as COVID-19 Cases Rise
Spectrum News, 11/28/2020

TALLAHASSEE, Fla. – A coalition of doctors are calling on Gov. Ron DeSantis to grant a request by some mayors to implement local coronavirus restrictions, including business capacity limitations and enforcement of mask mandates.

COVID In Miami-Dade: Mayor Daniella Levine Cava Says Rise In Cases Could ‘Risk Setting Our Economy Backwards’
4CBS Miami, 11/25/2020

Mayor Suarez said he is going to continue urging Gov. Ron DeSantis to give local governments more control over social distancing, safety and mask citations.  He said stricter enforcement will be key to slowing the spread.

Orlando city commissioner, now Florida League of Cities President, to lead fight against preemption
Orlando Sentinel, 11/25/2020

Florida municipalities seek more local control over pandemic policy, 11/23/2020

“Each region in Florida is very distinct and some of these things may need to be approached a little bit differently,” DeSantis said in March.

But as State Representative Carlos Guillermo Smith explains, that local control was largely stripped away in the Governor’s most recent pandemic executive order.

‘We Should Have That Local Control’: Local Leaders Urging Gov. Ron DeSantis To Give Them Resources To Fight COVID, 11/22/2020

“I do agree that we should have that local control,” said Miami Mayor Francis Suarez. “That is something we had at the beginning and we were effective at using the local control.”

Gov. Ron DeSantis doesn’t want to shut down Florida. What power do mayors have to control the virus?
Orlando Sentinel, 11/20/2020

[I]n Florida, Gov. Ron DeSantis has prohibited nearly all shutdown actions that local counties were able to take early in the pandemic.

Facing COVID surge, Florida mayors ask DeSantis for mask mandate, more local control
Miami Herald, 11/18/2020

As the holidays approach — and threaten to worsen a nationwide coronavirus surge — the mayors of five Florida cities and municipalities met Wednesday to request that Gov. Ron DeSantis impose a statewide mask mandate, ramp up the state’s testing effort and reinstate the authority of local governments to impose coronavirus restrictions as needed.


Gun laws demand local oversight to avoid NRA’s outsized influence | Commentary
Orlando Sentinel, 10/13/2020

 [I]n this chaos, state “leaders” have taken this opportunity to strengthen restrictive preemption laws that prevent local officials from implementing gun-violence prevention policies unique to their communities, costing lives…


FD council leans toward full municipal broadband
The Messenger, 11/25/2020

In the effort to provide better broadband service to Fort Dodge, local control is essential, in the view of City Council members.


Preemption Laws Block KY Communities from Tobacco Control Measures
Public News Service, 11/23/2020

Ben Chandler, CEO of the Foundation for a Healthy Kentucky, said county and city governments have ideas for reducing vape product use and exposure to secondhand smoke, yet can’t take action.

“If for instance, schools in a community didn’t want to vape shops right next to a school, they, today under the present law, cannot regulate that,” Chandler explained.

Sen. Julie Adams, R-Louisville, and Rep. Kim Moser, R-Taylor Mill, said they plan to file a local tobacco control bill early next year that would repeal the ban.


Municipal leaders oppose new marijuana delivery licenses
Commonwealth Magazine, 10/19/2020

PROPOSED NEW STATE REGULATIONS that would authorize marijuana delivery companies to sell directly to consumers were already drawing fire from marijuana retail stores worried that they will lose business to the delivery enterprises. Now municipal leaders are raising red flags, too, asking state regulators to defer licensing marijuana delivery companies, citing the potential loss of local tax revenue, among other issues.


Missouri lawmakers call for preemption bill prohibiting local COVID-19 shutdowns
The Center Square, 11/23/2020

Messenger: Rural Missouri elected officials call out Parson’s double standard on local control
St. Louis Post-Dispatch, 11/23/2020

Gov. Mike Parson says the reason he won’t issue a life-saving mask mandate in the state of Missouri as COVID-19 leaves a wave of death in its wake is because of his deep-seated belief in local control…

“What I am opposed of is mandates from this position to the people of this state,” Parson said. “People on the local level should have a voice.”

There’s one, massive problem with that statement. It’s simply not true. Or at least it wasn’t last year when Parson signed Senate Bill 391. That’s the bill that specifically overrides local public health decisions as it relates to concentrated animal feeding operations, or CAFOs. These are the corporate hog and cattle feeding operations owned in at least one case by a Chinese corporation that often create negative health outcomes for people in rural Missouri who live near them.

Watch now: Missouri governor says ‘I truly believe in local control,’ asks residents to change holiday plans
St. Louis Post-Dispatch, 11/19/2020


Editorial: Rural Missourians discover elections have consequences as big hog farms move in
St. Louis Post-Dispatch, 11/23/2020

Residents in northern Missouri may soon get a big whiff of the political treachery of state Republicans, who last year sold out their rural base — and their own stated principle of “local control” — to allow industrial hog operations to set up shop over the objections of local citizens.


LR130 deals a blow to local control
Montana Free Press, 11/22/2020

MISSOULA — As electoral battles were waged across Montana this summer, opponents of a measure to prohibit local governments from regulating concealed carry of firearms kept anticipating a huge fight of their own.

Voters consider concealed carry ballot measure
The Western News, 10/20/2020

A measure on the November ballot would strip local governments in Montana of the power to regulate concealed firearms, except in publicly owned and occupied buildings within their jurisdictions.

After Missoula, ballot measure would restrict local government gun laws
Missoula Current, 10/19/2020

So, here’s the question: How much power should local governments have to regulate firearms or prevent their possession by felons, minors, undocumented immigrants or people judged mentally incompetent?

Not much, according to backers of Legislative Referendum 130, the ballot measure sent to voters by Montana lawmakers last session.


Bloomberg Scores Another Failure in Big Sky Country
AMMOLAND.COM, 11/16/2020

U.S.A. -( Although voters in November’s election had a refreshing break from initiatives to impose new gun-control laws, there was a pro-gun ballot measure this fall in Big Sky Country.

LR 130, a ballot measure to limit local government authority to regulate firearms, was supported by the NRA and approved by Montana’s voters…

Like almost every other state, Montana has firearm preemption laws that prohibit local governments from regulating firearms as they please.

Big Lie Country: Anti-gun Interests Work to Deceive Montanans
NRA-ILA, 10/12/2020

LR-130 would amend Section 7-11-111 to remove a local government unit with self-government powers’ authority to restrict the Right-to-Carry. The measure would also curtail the power of a county, city, town, or consolidated local government to create gun-free zones.


Nevada Legislature could grant cities, counties leeway in limiting guns
Las Vegas Sun, 10/1/2020

The Nevada Legislature will likely consider overturning a law that prohibits local governments from establishing stricter gun control measures than the state.

New Jersey

NJ Passes Statewide Law Banning Single-Use Items
Progressive Grocer, 9/28/20

The state’s food industry has praised the new law, which would phase in the restrictions over time and preempt municipal and county regulations. [Emphasis added]


Guns Magazine, November 2020

[E]arlier this month, a trio of gun rights organizations and two private citizens took the state to federal court and the case just might wind its way upward to the newly conservative U.S. Supreme Court.

North Dakota

Mayor issues mask mandate in Fargo, effective immediately
KFGO.COM, 10/19/2020

Fargo Mayor Dr. Tim Mahoney has issued a Mayoral Mask Mandate within the City of Fargo utilizing emergency powers. This expands upon those orders declared on March 16, 2020 and subsequently extended by the Fargo City Commission on July 27, 2020.


Guns Not Banned Outside Presidential Debate In Cleveland, 9/25/2020

A variety of items will be prohibited in the event zone outside next week’s Presidential Debate at the Cleveland Clinic, including nun chucks, axes, swords, sabers and paintball guns. But real guns are not on that list.

That’s because in Ohio, state law overrules municipal gun bans, and Ohio’s laws allow for open carry or concealed carry of a weapon with a permit.


Two Oregon counties passed measures to prevent enforcement of firearm regulations, 11/18/2020

PORTLAND, Ore — On the November ballot, several Oregon counties saw measures to prevent enforcement of firearm regulations. Columbia and Umatilla counties passed the Second Amendment sanctuary ordinances, or “SASOs,” while Coos and Clatsop counties rejected them.

These ordinances are intended to prevent county officials from enforcing most state, federal and local firearm regulations, like background checks, firearm registration or tracking and laws regarding open or concealed carry, among others.

The ordinances could face legal challenges due to potential conflicts with state and federal law. [Emphasis added]

Olson: Is time right for county to embrace home rule?
Yamhill County’s News Register, 10/9/2020

Under home rule, local government retains all powers of self-governance except those specifically pre-empted under state or federal law. In the absence of prohibition, it empowers local jurisdictions, both city and county, to act. It is, in essence, a form of local control giving citizens more say in government operations.


Philly’s new legal strategy to bypass the state and enact gun laws, 10/22/2020

[T]he city solicitor, Marcel Pratt, he explained at the press conference that, “these laws and others are on the books in Philadelphia, but cannot be enforced due to preemption. But for preemption, Philadelphia would be enforcing these policies today.” The issue is they can’t ever go into effect because they keep coming up against this Pennsylvania Uniforms Firearms Act.

Philadelphia court challenge pushes for ‘sensible gun laws’ that help reverse homicide trend, 10/9/2020

The city, along with the Ceasefire Pennsylvania Education Fund and 10 family members, filed the lawsuit in Commonwealth Court on Wednesday, asking a judge to find that the state’s Firearms Preemption laws violate Pennsylvanians’ right to life under the state Constitution. 

Press Release, Philadelphia City Council, 10/7/2020


Just like COVID-19, gun violence in Philly is preventable | Editorial
Philadelphia Inquirer, 10/9/2020

Pennsylvanians deserve legislators who are willing to enact lifesaving measures — red flag, permit-to-purchase, and safe storage. If Harrisburg won’t do it, they should allow Philadelphia to exercise its Home Rule and protect its residents.

South Carolina

Horry County Council moves mining regulation changes forward, 11/17/2020

Members of the public and council members who were against the changes were bothered by the loss of local control over where mines could go, since DHEC only decides whether or not to grant a permit to mine on technical aspects of the proposal.


Numerous Gun Control Bills Filed for Next Legislative Session
KLBJ, 11/16/2020

Other gun control bills awaiting the next session include:

HB 238 would eliminate the state’s firearm preemption, allowing local governments such as the Austin City Council to pass local gun bans and regulations as they see fit;

HB 201 would ban Campus Carry… [Emphasis added]

As coronavirus cases soar, Texas contends with diminished public health influence
Fort Worth Star-Telegram, 11/13/2020

Since March, local authorities have been tangling with the governor in what has been a microcosm of a yearslong crackdown on the tradition of local control. Texas’ state government, led by Abbott and Attorney General Ken Paxton, has attempted to reverse local laws on paid sick leave and fracking. It has also targeted Austin’s police and homeless ordinances.

Duncan: Texas counties must band together to present legislative needs
Abilene Reporter News, 10/6/2020

Going into the next session of the Texas Legislature, things will be different, and likely “even more of a challenge than it has been in the past” for county officials, said former state senator Robert Duncan in a speech Tuesday.


LETTERS: Defending Deaver, demanding mask compliance
Waco Tribune-Herald, 11/26/2020

Before Gov. Greg Abbott took control away from local officials in May, Waco was doing better than just about any place in America at controlling the spread of the virus.

Pre-Filing of Gun-Related Legislation Continues in Texas: Here Are the Measures Affecting Your Second Amendment Rights So Far
NRA-ILA, 11/23/2020

House Bill 196 REPEALING key elements of Texas’ Castle Doctrine law, including stand your ground, and no-duty-to-retreat.

House Bill 201 REPEALING Texas’ Campus Carry law…

House Bill 238 REPEALING the state firearms preemption law and allowing local governments to restrict guns as they please.

Texas’ Failure to Ban Plastic Bags is Stressing the Environment
Reform Austin, 10/23/2020

Nearly a decade ago, several municipalities around the state enacted ordinances banning single-use plastic bags or assessing a tax on their use. But a subsequent Texas Supreme Court ruling essentially put an end to the bag bans declaring them illegal. [Emphasis added]



Jamie Henn: Communities should control their own energy future
The Salt Lake Tribune, 11/20/2020


Virginia’s gun-control debate shifts to newly empowered localities
Virginia Mercury, 8/10/2020

At a virtual Alexandria City Council meeting in June, a state legislator explained why he signed onto a new state law giving local officials the authority to ban guns in some public spaces.


Yakima council to vote on 2021 budget, letter to governor about COVID restrictions
Yakima Herald-Republic, 11/29/2020

The council’s agenda materials include a letter from Yakima County commissioners to the governor requesting more local control in managing the pandemic.

Getting There: Feds end Washington truckers’ more generous rest rules, arguing they’re actually unsafe
The Spokesman-Review, 11/23/2020

But that has changed, after the Federal Motor Carrier Safety Administration granted a petition from the Washington Trucking Associations that asked for federal regulations to preempt the state’s rules.

Washington court reignites legal battle over Seattle’s gun storage law, 10/20/2020

The Second Amendment Foundation and the NRA have alleged further that Seattle’s gun storage law violates Washington’s preemption law which bans local municipalities from enacting gun restrictions that circumvent state law.

Seattle may now appeal the decision to the Supreme Court of Washington or challenge the case on its merits in superior court.

Last month, a federal judge ruled against a lawsuit brought by the Second Amendment Foundation against the state’s voter-approved Initiative 1639 which restricted gun ownership to adults 21 and older, among other provisions.


WA Appeals Court Ruling Revives SAF-NRA Challenge to Seattle Gun Law, 10/21/2020

Washington State’s 35-year-old firearms preemption law got a boost Monday with a unanimous state Appeals Court ruling that reversed and remanded a legal challenge against a so-called “safe storage” regulation adopted by the City of Seattle more than two years ago, essentially in defiance of the statute.


Local candidates weigh in on key issues for voters ahead of Nov. 3 election
Beloit Daily News, 10/7/2020

In terms of public health mandates, Loudenbeck said more consistent messaging about masking was needed, while Lochner-Abel criticized the GOP-majority for inaction over the last six months.

“Local control and responsibility is vitally important,” Loudenbeck said. “Legislating a mask mandate is a very difficult conversation that is going to be tough to have.” [Emphasis added]

County Grapples With 5G Infrastructure in Parks
Urban Milwaukee, 8/5/2020

The Milwaukee County Board is moving cautiously as it continues to deal with impending 5G small cell wireless infrastructure on Milwaukee County parkland after state legislation stripped it of local control.

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