Preemption conflicts between state and local governments (2016)

States were able to preempt local ordinances or initiatives in all 8 resolved preemption topic areas tracked by Ballotpedia in 2016. To learn more about preemption cases in other years, click here.

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Local officials and state governments throughout the United States struggled to resolve conflicts over policy issues in 2016. Tensions emerged as local governments tried to assert control over policy decisions impacting their residents, while state governments—seeking uniformity in policy across communities within their purview—pushed back. The fault lines between local and state governments discussed below drew attention from national media including The New York Times and The Wall Street Journal due to their potential repercussions on future policy discussions. For a deeper discussion of the struggle over preemption, click here.

ARGUMENTS

Legislators and governors argue that preemption allows states to create consistent laws across all municipalities. State officials also suggest that they are in better positions than cities to protect the rights of individuals by virtue of a larger view of policy debates.

Mayors, city councils, and county officials argue that preemption takes away local control necessary to respond to specific issues. Local officials also suggest that they are more attuned to the needs of the public given the relatively small number of state officials.

Policy fault lines

The following map highlights 18 states where Ballotpedia found preemption battles between local and state governments in 2016.

Fracking

Summary

Hydraulic fracturing, also known as fracking, is a method of oil and natural gas extraction. The process involves injecting fluid into subterranean rock formations at high pressure. The high-pressure fluid produces a fracture network that allows crude oil and natural gas inside dense rocks to flow into a wellbore and be extracted at the surface. The fluid (known as frac fluid) contains between 98 percent and 99.5 percent water and sand; between 0.5 percent and 2 percent of the fluid is composed of chemical additives, which are used to stop the growth of microorganisms, prevent well casing corrosion, increase the rate at which the fluid is injected, and reduce pressure, among other things.

According to the U.S. Energy Information Administration (EIA), there were approximately 23,000 hydraulically fractured wells in the United States in 2000. In 2015, the United States contained approximately 300,000 hydraulically fractured wells, accounting for 67 percent of U.S. natural gas production and 51 percent of U.S. crude oil production.

Mayors speak out for local fracking control

Thirty-three mayors, including Charlotte Mayor Jennifer Roberts (D), Portland Mayor Charlie Hales (D), and Pittsburgh Mayor Bill Peduto (D), issued a statement in June 2016 seeking greater local control over fracking. The statement argued that city residents should be allowed to regulate or prohibit drilling over health and environmental concerns. It said:

“	It is no surprise that a growing number of communities are moving to halt or regulate fracking within their borders. The notion that our communities have the right to govern on issues and activities that threaten public health or the quality of life of their residents has a long tradition in law. This principle is the basis of public health ordinances and local land use rules, including zoning, which often involve trade-offs with property rights and other interests. In light of the foregoing, we believe that all communities should have the right to decide whether, where, and how industrial fracking operations–including not only well pads, but waste disposal facilities and all related infrastructure–happen within their borders. We urge our state and federal leaders to affirm the ability of localities to protect the health and quality of life of residents against the widespread expansion of industrial fracking into their communities. The best policy is to leave decisions over these local impacts to local governments and let the democratic will of their residents and other stakeholders be heard.	”
—Environment America (2016)

West Virginia: Federal judge overturns county fracking waste disposal ban

Federal Judge John Copenhaver struck down Fayette County's fracking waste disposal ban in June 2016, on the grounds that it was preempted by state and federal law. The petroleum company EQT Production Company had filed suit over the ban.

Fayette County Commission President Matt Wender told The Fayette Tribune that the commission was not permitted to testify prior to the ruling. "I'm most disappointed that we cannot present information about the many health concerns about injection wells that have come to the commission's attention," he said. "One real consequence of today's hearing is that it did not allow for public awareness and dialogue about these health concerns."

Louisiana: Supreme court refuses hearing on oil drilling in St. Tammany Parish

In June 2016, the Louisiana Supreme Court voted 4-3 against hearing an appeal of district and circuit court rulings upholding the issuance of a state drilling permit to the New Orleans company Helis Oil & Gas. St. Tammany Parish had attempted to use zoning ordinances to block the Helis project. The lower courts found that the parish's ordinances were preempted by state oil and gas regulations.

St. Tammany Parish filed suit against the Helis project in June 2014 due to concerns that it would pollute the area's water supply and adversely affect property values. The Concerned Citizens of St. Tammany assisted the parish with further litigation.

Colorado: State law supersedes local fracking bans

The Colorado Supreme Court struck down a five-year moratorium on fracking in Fort Collins and a fracking ban in Longmont in May 2016. The court ruled that the cities' fracking regulations were unenforceable because the state has an interest in creating uniform regulations.

Attorneys for the cities had argued that the state's constitution includes an inalienable rights provision under which citizens' rights preempt state law. Energy companies representatives argued that state officials should have the ability to mediate disputes between local officials and fracking operators without the complications of local regulations.

In its ruling on the Longmont ban, which included language similar to the language in the Fort Collins decision, the court said:

“	Applying well-established preemption principles, the supreme court concludes that the City of Longmont’s ban on fracking and the storage and disposal of fracking wastes within its city limits operationally conflicts with applicable state law. Accordingly, the court holds that Longmont’s fracking ban is preempted by state law and, therefore, is invalid and unenforceable. The court further holds that the inalienable rights provision of the Colorado Constitution does not save the fracking ban from preemption by state law.	”
—Colorado Supreme Court (2016)

Firearms

Summary

Mayors and city council members seek stricter gun control policies because of concerns about high crime rates within their city limits. State legislators in Republican-leaning states favor less restrictive policies due to concerns about the rights of gun owners and uncertainty about licensing from city to city. The influence of groups like the National Rifle Association and Everytown for Gun Safety raises the stakes as the gun control debate continues.

Arizona: Tucson challenges state preemption law over firearm ordinance

On August 17, 2017, the Arizona Supreme Court struck down a 2005 Tucson ordinance requiring firearms confiscated by city police or voluntarily surrendered to the police department to be destroyed.

Arizona passed a law in 2013 requiring law enforcement agencies to sell confiscated or surrendered firearms. Following the passage of a 2016 law requiring the state attorney general to investigate allegations by state legislators of violations of state law by localities, state Rep. Mark Finchem (R) asked the state attorney general's office to investigate the Tucson ordinance.

In November 2016, state Attorney General Mark Brnovich (R) issued an opinion concluding the Tucson ordinance likely violated state law. He asked the city council to repeal the ordinance, but it declined to do so. City Councilman Steve Kozachik (D) summarized the city's position in a motion to seek legal action:

“	The Mayor and Council hereby reaffirm that the destruction of firearms acquired by TPD [the Tucson Police Department] through its law enforcement activities serves important and compelling local interests, including the protection of public safety and the safety of Tucson's police officers, and that the City is exercising its constitutional authority under its Charter through TC 2-142, which was adopted in 2005.	”
—Steve Kozachik (2016)

Brnovich responded by asking the state supreme court to determine whether the ordinance violated state law. The court's majority found that, although charter cities like Tucson have the constitutional right to take municipal actions that conflict with state law, that right extends only to purely local issues and firearms regulation is a statewide issue. Writing for the majority, Vice Chief Justice John Pelander said,

“	Matters involving the police power generally are of statewide concern. The laws at issue here implicate the state's police power in several respects, the disposition of forfeited or unclaimed property, the conduct of law enforcement officers, including their handling of unclaimed property, and the regulation of firearms.	”
—Arizona Supreme Court (2017)

Montana: Missoula councilman proposes expanded background checks in city limits

On January 26, 2017, Montana Attorney General Tim Fox struck down a Missoula ordinance mandating background checks for gun purchases in the city. "Plainly interpreted," he said in his opinion, "the Montana Legislature has prohibited all forms of local government from exercising any regulatory power over the purchase, sale or transfer of firearms."

The ordinance was passed by the Missoula City Council 8-4 on September 26, 2016. Councilwoman Marilyn Marler, who voted for the ordinance, said, "I hope that by passing this, we raise awareness of what it means to be a responsible gun owner. I wish this would come down from the state level. But sometimes we have to stick our neck out, and it's uncomfortable."

Fox indicated prior to the ordinance's passage that he thought it was prohibited by state law, but the ordinance's lead sponsor, Councilman Bryan Von Lossberg, believed it was covered by a provision of state law that permitted localities to limit access to firearms by certain groups.

Pennsylvania: Allentown seeks ban on firearms on city property after state law repeal

On August 17, 2016, the Allentown Council tabled indefinitely an ordinance requiring gun owners to report lost or stolen firearms. That ordinance and ordinances prohibiting possession of firearms in city parks and on city property had previously been in effect in the city. They were repealed on February 4, 2015, following the passage of a state law that gave groups like the National Rifle Association standing to sue over local gun laws even if they were not directly harmed by them. "We really do not have a choice [about repealing the ordinances]," Councilwoman Jeanette Eichenwald said. "We need to repeal this. If not, we open ourselves for a lawsuit that will cause us financial harm."

The Pennsylvania Supreme Court struck down the state law that prompted the repeals on June 20, 2016, and Allentown officials initially indicated they would reinstate the repealed ordinances. Mayor Ed Pawlowski said on June 23, 2016, that he would reintroduce the lost and stolen firearms ordinance and research the prohibition of possession of firearms on city property for compliance with state law.

As of March 2018, however, the ordinances had not been reinstated. The lost and stolen firearms ordinance was tabled following its introduction. The city's parks regulations were updated on July 20, 2016, to reflect the repeal of the prohibition on firearms in city parks, and the version of the code available in March 2018 reflected that update.

Louisiana: City ordinances clash with state gun laws

New Orleans Mayor Mitch Landrieu (D) signed a firearm ordinance on September 12, 2016. The ordinance requires gun owners to report lost or stolen guns within 48 hours of discovery and creates gun-free zones around city properties. Landrieu originally proposed a prohibition on guns without serial numbers and a ban on ownership for anyone convicted of domestic violence in the previous 10 years. These proposals did not make the final version of the ordinance because they are addressed in state law.

The Louisiana State Legislature passed a state preemption law dealing with local firearm ordinances in 1985. This law states that local governments cannot establish "any ordinance or regulation more restrictive than state law concerning in any way the sale, purchase, possession, ownership, transfer, transportation, license, or registration of firearms, ammunition, or components of firearms or ammunition."

GMOs

Summary

Genetically modified organisms (GMO) refer to organisms with altered genetic traits incorporated into food, medicines, and other products. GMOs have been used by food producers to improve the survival rates of crops and increase the shelf life of food. The introduction of these organisms has raised concerns about the health impacts of GMO-influenced food as well as the impact of tweaking specific genes on plant life.

Oregon: Josephine County GMO ban overturned in circuit court

Josephine County approved a ban on GMOs with 58 percent of the vote in May 2014. Beet farmers Robert and Shelley Ann White, who said the ban blocked them from planting biotech beets, filed a lawsuit challenging the ban. The Oregon State Legislature had also passed a law in October 2013 prohibiting all counties other than Jackson County, which already had a GMO ban on the ballot when the legislature passed the law, from regulating GMOs.

Oregonians for Safe Farms and Families defended the Josephine County ordinance in court and challenged the Whites' standing to bring suit. Josephine County Circuit Court Judge Pat Wolke dismissed the standing challenge and ruled that the state's law trumped the county's ordinance. "The state law says that the localities may not legislate in this area," he said, "and the voters of Josephine County have attempted to legislate in the exact same area. It is impossible to read the two enactments in harmony; so that the local ordinance must give way."

In September 2017, the Oregon Court of Appeals upheld the circuit court's decision blocking the ordinance.

Labor

Summary

Local activists argue that minimum wage laws at the state and federal level fail to respond to rising costs of living. The paid sick leave fight has been spurred by labor groups concerned about the detrimental impacts of unpaid leave or the potential termination of workers with health issues. Legislators in 11 states passed preemption laws by February 2015 that prevented local ordinances that required private businesses to offer paid leave. A total of 15 states passed preemption laws dealing with minimum wage ordinances as of January 2015. These preemption laws stem from concerns that cities could drive away businesses by increasing operational costs.

Alabama: State legislature blocks Birmingham's minimum wage ordinance

The Alabama State Legislature voted in February 2016 to preempt a minimum wage ordinance passed unanimously by the Birmingham City Council in August 2015. State legislators said that the ordinance, which would have increased the city's minimum wage from $7.25 per hour in 2015 to $10.10 in 2017, ran counter to the state's interest in maintaining a uniform statewide rate.

The Alabama NAACP filed a federal lawsuit against the preemption law in May 2016 on the grounds that it was unconstitutional. Teresa Tritch of The New York Times reported that "the Alabama NAACP and other plaintiffs assert that the nullification bill was motivated by racism and, as such, violates the Equal Protection clause of the United States Constitution." U.S. District Judge David Proctor dismissed the suit on February 1, 2017, citing a lack of factual evidence of racial discrimination. The plaintiffs appealed Proctor's ruling on March 2, 2017.

On July 25, 2018, a three-judge panel of the United States Court of Appeals for the Eleventh Circuit reversed Judge Proctor's decision, ruling that the state's preemption law violated the Fourteenth Amendment's equal protection rights. The judges wrote that the plaintiffs "stated a plausible claim that" the state preemption law "had the purpose and effect of discriminating against Birmingham's black citizens." According to NPR, the ruling did not mean the wage increase would go into effect but that challengers of the law would "likely be able to take their case to court."

On June 25, 2019, the full Eleventh Circuit appeals court heard arguments to decide whether a challenge to the state law would be able to proceed. In December 2019, the court upheld Judge Proctor's dismissal of the suit, stating that the plaintiffs "failed to establish that their injuries (while real and cognizable) are fairly traceable to the attorney general’s conduct or that those injuries would be redressed by a decision in their favor."

Iowa: Counties approve minimum wage increases and spur discussion of state minimum rate

On March 30, 2017, Gov. Terry Branstad (R) signed a bill, HF 295, that prohibited local governments from setting their minimum wages above the state's minimum wage rate and invalidated higher minimum wages that had been enacted by the state's localities in previous years.

Johnson County approved a proposal in September 2015 to raise its minimum wage above the state's $7.25 per hour rate, to at least $8.20 in 2015 and $10.10 by 2017. In September 2016, Linn County, Polk County, and Wapello County enacted ordinances to raise their minimum wages to $10.25, $10.75, and $10.10, respectively, by 2019. The four counties' minimum wage increases were retroactively voided by HF 295.

New Mexico: Business group seeks state law preempting local labor ordinances

Following the proposal of the Fair Workweek Act in the Albuquerque City Council in 2015, the New Mexico Association of Commerce and Industry (ACI) announced that it was drafting legislation to propose to the New Mexico State Legislature in 2016 that would prevent any such proposals in the future. According to ACI President Jason Espinoza, the bill would establish uniform labor laws throughout the state and prohibit local laws governing the issue. This would ban local council-referred ballot measures and citizen initiatives seeking to establish labor-related ordinances.

Espinoza said, “When we look at all the current regulations across the state, there are over 100 municipalities, 33 counties — you can end up in a situation where two businesses across the street work under different regulations or work under different ordinances. What the business community really needs is consistency.”

William Fulginiti, the executive director of the New Mexico Municipal League, responded to the ACI announcement by saying the league would oppose legislation that tried to keep cities from controlling labor laws. Fulginiti said, “Those kinds of decisions should be subject to those local governments because the economics are different in each part of the state. One size does not fit at all in New Mexico.”

Isaac Benton, one of the Albuquerque City Council members who proposed the Fair Workweek Act in 2015, said the bill was a calculated effort by the state to preempt local labor laws before more New Mexico cities started proposing similar laws. Benton said, “It’s strategic … to try to head off something like that. And it’s always very conveniently cited that we shouldn’t have local laws when people are against something or another.”

Ohio: County judge issues restraining order on state contractor law

Cuyahoga County Judge Michael Russo issued an August 2016 restraining order against the state of Ohio over a state law prohibiting cities from creating local contractor requirements on public projects. HB 180, which would have taken effect on August 31, 2016, would have prevented cities from requiring certain portions of public projects to be done by local contractors. Cleveland passed a requirement in 2004 that all projects exceeding $100,000 in expenses allot at least 20 percent of work hours to contractors living in the city. State legislators were concerned that this requirement would prevent rural or suburban workers from gaining employment. Russo ruled that HB 180 clashed with the state constitutional right to municipal self-governance.

LGBT

Summary

The issues of LGBT equal rights and public accommodations have surfaced in preemption conflicts between local and state officials. Activists supporting LGBT causes have pushed for local ordinances and state laws that prohibit discrimination based on sexual orientation or gender identity. These equal rights measures are supported by activists because past legal battles over civil rights have focused on race. Religious groups and social conservatives have opposed these efforts because they do not view the LGBT community as equivalent to other groups protected by existing anti-discrimination laws. Opponents also argue that anti-discrimination laws block private businesses from exercising religious liberty. Local and state officials have to contend with this clash of activist groups while debating the virtues of new equal rights legislation.

Arkansas: State supreme court overturns Fayetteville's civil rights ordinance

The Arkansas Supreme Court struck down Ordinance 5871, a 2015 Fayetteville ordinance barring discrimination on the basis of sexual orientation or gender identity, on February 23, 2017. The court ruled that the ordinance violated Arkansas Act 137, which prohibits local governments from expanding protected classes beyond the groups specified in state law. The court said:

“	In essence, Ordinance 5871 is a municipal decision to expand the provisions of the Arkansas Civil Rights Act to include persons of a particular sexual orientation and gender identity. This violated the plain wording of Act 137 by extending discrimination laws in the City of Fayetteville to include two classifications not previously included under state law. This necessarily creates a nonuniform nondiscrimination law and the obligation in the City of Fayetteville that does not exist under state law.	”
—Arkansas Supreme Court (2017)

The state supreme court's decision overturned a March 2016 ruling by Washington County Circuit Court Judge Doug Martin upholding the ordinance. Martin found that, although gender identity and sexual orientation were not covered by the state's civil rights codes, they were protected elsewhere in state law. He said:

“	The language of this first prong of Act 137 is plain and unambiguous and the court must construe it just as it reads, giving the language used its plain meaning. Act 137 does not state that Arkansas's municipalities are prohibited from creating a protected classification on a basis on contained in the ACRA. Rather, Act 137 states that Arkansas prohibits its municipalities from creating a protected classification 'on a basis not contained in state law.' Ark Code Ann. 14-1-403(a). Clearly, the classifications of gender identity and sexual orientation were classifications of persons protected on bases contained in state law prior to the enactment of Ordinance 5781. As such, Ordinance 5781 does not create a protected classification on a basis not contained in state law and, therefore, the ordinance does not violate the plain meaning of the language used in the first prong of Act 137.	”
—Doug Martin (2016

North Carolina: State legislature passes law invalidating Charlotte's LGBT ordinance

The North Carolina State Legislature held a special session in March 2016 to address a Charlotte ordinance requiring access to bathrooms on the basis of gender identity and prohibiting businesses from discriminating against LGBT customers. The legislature passed a bill during the special session, HB 2, that prohibited localities from enacting nondiscrimination ordinances or requiring bathroom access on the basis of gender identity.

The Charlotte Observer's Michael Gordon, Mark S. Price, and Katie Peralta reported that HB 2 prompted the online payment company PayPal to cancel a planned expansion in Charlotte, Braeburn Pharmaceuticals to reconsider a research and manufacturing facility in Durham, the National Basketball Association to move its 2017 All-Star Game from Charlotte, the National Collegiate Athletic Association to move seven 2016-2017 championships from the state, the Atlantic Coast Conference to move its 2016 football championship from Charlotte, and multiple musical acts to cancel shows in the state. They also reported that at least five lawsuits were filed for or against the bill. A coalition of groups, including the American Civil Liberties Union and Equality North Carolina, filed suit against the law, as did the U.S. Department of Justice. Then-Gov. Pat McCrory (R), who signed HB 2, Senate President Pro Tem Phil Berger (R), and Assembly Speaker Tim Moore (R) each filed suits supporting the bill.

On March 30, 2017, Gov. Roy Cooper (D) signed a bill, HB 142, that repealed HB 2 but imposed a three-year moratorium on local nondiscrimination ordinances and prohibited ordinances related to bathroom access. Supporters of HB 142 said the moratorium was necessary to allow time for pending federal transgender rights lawsuits to be settled. Opponents argued that Cooper should have pushed for full repeal of HB 2, without the moratorium and ban. At a news conference about HB 142, Cooper said, "The Republican majority leadership [of the state legislature] had complete control on what went to the floor and what didn't, so they had to be the final arbiters on what was going to go on the floor."

Marijuana

Summary

Proponents of marijuana legalization argue that this policy generates revenue, allows safer use, and reduces strains on the justice system by reducing drug crimes. Opponents of marijuana legalization cite public safety concerns from increased drug use as well as conflicts between local and state drug laws. Twenty-three states allow medical marijuana as of July 2016, while Alaska, Colorado, Oregon, and Washington allow recreational use of marijuana.

Kansas: Supreme court overturns Wichita's decriminalization ordinance

On January 22, 2016, the Kansas Supreme Court overturned a 2015 ballot measure decriminalizing the possession of marijuana in Wichita.

The ballot measure replaced the state's criminal penalties for first-time possession of 1.1 ounces of marijuana or less, which included up to a year in prison and a $2,500 fine, with a $50 civil penalty. The measure was approved by Wichita voters with 54 percent of the vote in April 2015, but state Attorney General Derek Schmidt (R) sought to invalidate it on the grounds that it conflicted with state law.

The state supreme court ruled that the ballot measure's backers had failed to comply with K.S.A. 12-3013(a), a state statute governing the initiative and referendum process. The court found that, "The ordinance is null and void because the Initiative failed to file with the city clerk the proposed ordinance along with the petition as set forth in K.S.A. 12-3013(a)." Because that omission was sufficient to invalidate the measure, the court opted not to address the question of whether the ordinance would have been preempted by state law.

Tennessee: Nashville, Memphis take different approaches to legal opinion on marijuana

Gov. Bill Haslam (R) signed a law on April 12, 2017, repealing marijuana decriminalization ordinances in Nashville and Memphis.

In September 2016 and October 2016, respectively, Nashville and Memphis approved ordinances allowing city police to issue $50 fines for possession of half an ounce or less of marijuana instead of criminal penalties.

State legislators introduced the bill preempting the ordinances in November 2016, following the release of an opinion by state Attorney General Herbert Slatery that found the ordinances unenforceable. "A municipal ordinance that attempts to regulate a field that is regulated by state statute cannot stand if it is contradictory to state law," Slatery said in his opinion. State Rep. William Lamberth (R), one of the bill's sponsors, said, "You can't allow an officer at their whim to treat two different individuals who have potentially committed the same crime in drastically different ways depending on what that officer feels like at a given time. You just can't have cities creating their own criminal code, willy-nilly."

Washington: State legislators propose bill limiting local regulations on marijuana

Washington State Rep. David Sawyer (D) sponsored HB 1483 during the 2015-2016 legislative session. If passed, HB 1483 would require municipalities to gain voter approval for any proposed bans on marijuana sales. Sawyer and other state legislators supported the measure in 2016 due to a growing number of towns and cities seeking local restrictions on the marijuana industry. In January 2016, KOMO reported that nearly a third of counties and cities in Washington were pursuing temporary moratoriums or bans on marijuana sales despite a 2012 initiative approved by 55 percent of voters statewide. HB 1483 was introduced during a March 2016 special session but did not advance from the state House.

Sawyer supported HB 1483 because local bans on marijuana sales impact medical uses of marijuana, which he said constituted a potential public health problem. Fife City Manager Subir Mukerjee voiced concerns about the state wresting control over commercial regulation from local governments. The city of Fife's ban on marijuana sales was upheld by a superior court judge in 2015 because the 2012 initiative allowed local control over marijuana regulation.

Plastic bags

Summary

In 2007, San Francisco became the first major city in the United States to ban retailers from issuing plastic bags to customers. This ban, which took effect in 2012, was passed by the city council to reduce litter and eliminate water pollution caused by unattended bags. San Francisco's plastic bag ban kicked off similar local bans across the country. Advocates for plastic bag regulations have argued that reusable bags save money for retailers and reduce the amount of bags without recyclable materials entering municipal recycling programs.

A preemption-based argument against plastic bag regulations concludes that states with comprehensive legislation on solid-waste disposal already address issues raised by local bans. Opponents of bag regulations also state that plastic bags can be reused around the home and bans place economic stresses on low-income families that would be required to buy reusable bags.

Preemption in focus: Arizona
Gov. Doug Ducey expressed frustration with city and county labor laws that conflicted with state law in his January 2016 State of the State address. "I will use every constitutional power of the Executive Branch and leverage every Legislative relationship to protect small businesses and the working men and women they employ – up to and including changing the distribution of state–shared revenue," said Ducey. The Arizona State Legislature followed suit by passing bills to allow state investigations into local laws and preempt local ordinances in several policy areas. In March 2016, legislators expanded a 2015 preemption law prohibiting plastic bag regulations to cover containers made out of cloth, glass, aluminum, and other packaging material. SB 1449, passed in April 2016, includes a prohibition on local regulations of drones. SB 1266 was signed in May 2016 and prohibits any city from exceeding the state's gun regulations with a potential penalty of $50,000.

Arizona: State legislator asks attorney general to investigate Bisbee bag ban

On October 24, 2017, state Attorney General Mark Brnovich (R) ruled that a five-cent bag fee enacted by the Bisbee City Council in 2012 violated a state law prohibiting local regulations on retail bag use. "Regardless of policy arguments for why the bag ban exists," he said, "the City of Bisbee does not have the authority to ignore state law and reach its policy goal by illegally imposing regulatory mandates on private citizens and businesses."

Brnovich's investigation of the bag ban was prompted by a September 2017 complaint by state Sen. Warren Petersen (R). A law enacted by the state in 2016, SB 1487, permits state legislators to request reviews of the legality of local ordinances by the attorney general's office. Under the law, localities with ordinances that are found to violate state law must bring them into compliance within 30 days or risk the loss of state funds.

Following Brnovich's ruling, Bisbee had until November 23, 2017, to revise its bag ban. The city council voted to make compliance with the ban voluntary on October 30, 2017.

California: Lincoln city ordinance allows bag use after Proposition 67

California voters approved a statewide plastic bag ban, Proposition 67, on November 8, 2016. Senate Bill 270, the state law underlying Proposition 67, included a clause that said that any public agency that "adopted, before September 1, 2014, an ordinance, resolution, regulation, or rule relating to reusable grocery bags, single-use carryout bags, or recycled paper bags may continue to enforce and implement that ordinance, resolution, regulation, or rule."

According to Mark Murray, the executive director of Californians Against Waste, the purpose of the clause was to protect pre-existing local bag bans. "That was clearly the intent of the preemption language in the law," he said.

However, the city of Lincoln said it also exempted its businesses from the statewide ban. The Lincoln City Council passed a resolution in August 2014 that left decisions about whether to comply with statewide bag bans to retailers. City officials said the resolution was covered by the SB 270 clause and, therefore, that Lincoln's retailers were not bound by the ban. "We wrote our regulations so that the businesses had the choice," City Councilman Stan Nader said. "Obviously with Walmart and Safeway, they are larger corporate stores and probably made a corporate decision, company-wide, just to go ahead and follow the vote of the people [to comply with the statewide bag ban]."

Michigan: State legislators move to block local bans

Michigan Lt. Gov. Brian Calley (R) signed a bill prohibiting local bag regulations on behalf of Gov. Rick Snyder (R), who was out of town, in December 2016.

SB 853, which barred local bag bans and fees, preempted a 10-cent bag fee that had been approved by Washtenaw County officials in June 2016 and was slated to go into effect in April 2017. According to the local outlet MLive, the county's bag fee was "intended to eliminate unnecessary waste and incentivize people to be more environmentally conscious."

The Washtenaw County bag fee faced opposition from the Michigan Grocers Association and the Michigan Restaurant Association. "With many of our members owning and operating locations across the state," Michigan Restaurant Association vice president of government affairs Robert O'Meara said, "preventing a patchwork approach of additional regulations is imperative to avoid added complexities as it related to day-to-day business operations."

SB 853 was passed by the Michigan State Senate in May 2016 and the state House on December 1, 2016.

Texas: Laredo's bag ban struck down by appeals court

On June 22, 2018, the Texas Supreme Court unanimously ruled against Laredo, concluding that the local ordinance conflicted with the state's Solid Waste Disposal Act. The court wrote, "The court of appeals correctly held that the Act preempts the City’s Ordinance." In a concurring opinion, Justice Eva Guzman wrote that the legislative branch, not the judiciary, had the authority to implement policies like the bag ban.

On August 17, 2016, Texas' Fourth District Court of Appeals struck down a plastic bag ban enacted by Laredo in 2014. The city's attorneys had argued that the ban was intended as a beautification effort rather than a waste disposal measure, but the court found that it violated a state prohibition on local regulations on solid waste management.

Laredo appealed the district court's ruling to the Texas Supreme Court, which heard oral arguments in the case in January 2018. Edward Burbach, who filed an amicus brief supporting the state on behalf of the Texas Retailers Association, said in the brief that, "Inconsistent local ordinances harm the sales of affected retailers, force the layoff of employees, deprive retailers of their existing inventory of bags, and impose an expensive and complex requirement on multisite retailers to comply with varying ordinances across the state."

The Texas Municipal League and the Texas City Attorneys Association filed an amicus brief for Laredo. "Extreme uniformity and regulation fails to address diverse local concerns," Christy Drake-Adams, who filed the brief for the organizations, said. "Texas is a great example of why that can’t work. A state as large and diverse geographically as Texas, that simply can’t work."

The court's decision preempted similar bans in other Texas cities, including Austin and Sunset Valley.

Ridesharing

Summary

The emergence of ridesharing companies including Lyft and Uber has generated a discussion over regulations for this industry. Advocates for rideshare regulations express safety concerns for passengers entering vehicles operated by drivers not regulated by specific local or state policies. Regulations including fingerprint-based background checks and licensing have been supported by city officials, taxi operators subjected to existing regulations, and activists concerned about the regulatory gap for app-based technologies. Rideshare companies have responded to these efforts by leaving or threatening to leave cities enacting policies that they believe raise prices and harm their ability to compete. State legislatures across the country have debated uniform regulations on rideshare companies to preempt local ordinances and alleviate safety, pricing, and licensing concerns.

Texas: State legislators pursue legislation to overturn local ridesharing regulations

Gov. Greg Abbott (R) signed a bill on May 29, 2017, requiring ridesharing companies to operate under licenses issued by the Texas Department of Licensing and Regulation. The bill, HB 100, preempted existing rideshare regulations in cities such as Austin, Corpus Christi, and Houston.

Houston passed an ordinance in 2014 requiring fingerprint identification for drivers. Corpus Christi implemented a fingerprinting requirement in 2016, and voters in Austin upheld a similar requirement the same year. Uber, which stopped operating in Austin and Houston in response to their fingerprint requirements, and Lyft, which had ceased operations in all three cities, returned to the cities following passage of the state law.

Two Texas state legislators introduced other bills to preempt local rideshare regulations in November 2016. SB 113, which was introduced by state Sen. Don Huffines (R), would have prohibited local rideshare ordinances. SB 176, which was proposed by state Sen. Charles Schwertner (R), would have set statewide rideshare fees and background check policies. Both bills died in committee in March 2017.

See also

Local Politics	2016 Election Analysis
Municipal government Local courts School boards Local ballot measures Local recalls	Municipal elections, 2016 Local court elections, 2016 School board elections, 2016 Local ballot measure elections, 2016 Political recall efforts, 2016	Local: Partisanship in local elections Local: Money in local elections Local: Preemption conflicts between state and local governments Municipal: Partisanship in United States mayoral elections Municipal: Race, law enforcement, and the ballot box School boards: Education policy at the state and local levels Local ballots: Using local measures to advance national agendas

Footnotes

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