March 2017

Preemption, in the legal sense, holds that a state may overrule a local law or regulation if it is inconsistent with state law. Similarly, federal law takes precedence over state law when a conflict arises. This preemption authority rests in the Supremacy Clause of the Constitution (Article VI, Section 2): the “Constitution and the Laws of the United States… shall be the supreme Law of the Land.”

However, also at play is the Constitution’s Tenth Amendment which states that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (italics added).

It comes as no surprise that views tangle around the right of local governments to enact laws that serve the safety and welfare of their residents.  Currently, preemption actions by state courts and legislatures are increasing as more communities pass legislation granting such protections.

A sampling of such state preemption follows:

• In 2015 the Ohio Supreme Court ruled (4-3) that state oil and gas law disallows local regulation or prohibition of drilling operations;
• In May 2017, Cleveland, Ohio was poised for a vote by its residents to raise the minimum wage but in late December, Governor John Kasich, signed legislation crushing local government’s right to lift minimum wages above the state level of $8.20 an hour;¹
• Early in 2017, an Ohio bill was passed and signed making it harder for local communities to use ballot initiatives to prohibit oil and gas fracking and related activities;
• Eight states have prohibited municipalities from writing law that assures paid sick days;
• The city of Morgantown, West Virginia, passed a ban on horizontal drilling for oil and gas within two miles of its borders.  A drilling company promptly sued and the circuit court deemed cities as mere “creatures of the state,” lacking such authority;²
• In Denton, Texas, a 2014 town referendum resulted in a ban on fracking.  In short order the Texas legislature passed a law stating that cities and towns cannot do that sort of thing, preempting the Denton ban.

What prompts these preemptions of community decision-making? Perhaps it’s those generous corporate donations to candidates and parties.  Why else would legislators oppose a fracking ban that protects water quality or a minimum wage that helps an entire local economy?  Texas legislators took in $1.22 million from oil and gas corporations in the 2016 election.

Money also flows to candidates in judicial campaigns.  The four authors of Ohio’s Supreme Court ruling against local controls on drilling received well over $130,000 collectively from fossil fuel extraction companies in 2014.³

Measures in Support of Local Governance

In New York State the Court of Appeals upheld local fracking bans and the right of communities to prohibit oil and gas drilling through “home rule” zoning authority.  Those local NYS governments, however, have no authority to regulate such activity once underway.

Many communities are pushing back on preemption by passing ordinances that assert local control.  With legal guidance from the Community Environmental Legal Defense Fund (CELDF), approximately 200 communities around the country have passed Bill of Rights ordinances establishing legal authority to protect their natural resources, local economy, affordable housing, worker rights, among others.⁴  While some of these laws have been struck down by the courts as beyond a community’s authority, most of them continue to serve the interests of a place and its people against harmful corporate activity.  

According to author Benjamin Barber, “If national governments do not uphold the rights to life, liberty, and property that are the basis of the social contract,” they will have defaulted on their democratic commitment. “Sovereignty then passes to those who can make good on that contract.”  Cities and towns will step in and claim authority to protect and serve their people and environments.⁵

What actions by We the People can assist those municipal actions to survive challenge? Once again the work of Move to Amend is critical if real democracy is to come to life in local jurisdictions. Removing money from politics by denying that dollars are equal to speech and withdrawing from corporations all constitutional rights to define and control our jurisdictions will help to anchor local law in its rightful constitutional authority -- the people. Sign the petition (www.movetoamend/petition), see our website (www.movetoamend.org) and join our work.

Learn more:

1. http://www.salon.com/2016/12/22/john-kasich-quietly-bans-cleveland-voters-from-raising-minimum-wage-in-their-city/
2. http://www.commondreams.org/views/2017/01/01/trump-administration-fast-approaches-cities-and-towns-gear-political-resistance
3. https://www.americanprogress.org/issues/courts/reports/2017/01/09/296113/big-money-courts-decide-fate-of-local-fracking-rules/
4. Community Environmental Legal Defense Fund (CELDF), www.celdf.org
5. https://qz.com/837383/cities-will-be-a-powerful-antidote-to-donald-trump-social-scientist-benjamin-barber-on-the-emergence-of-a-new-urban-radicalism/