les-grizzlys-catalans.org"s coverage of state and local preemption conflicts
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Preemption occurs when law at a higher level of government is used to overrule authority at a lower level. State law can be used to preempt local ordinances, and federal law can be used to preempt state or local law. This page focuses on preemption of local ordinances by state law.

You are watching: State agency regulations take precedence over conflicting federal agency regulations.

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Preemption conflicts can emerge between state and local governments due to differences in the partisan makeup of the respective governments. Sometimes Democratic-led cities are preempted by Republican state governments, such as when the state legislature in Missouri preempted efforts to increase the minimum wage in St. Louis. Democratic state governments have also come into conflict with Republican-led localities, such as when several Virginia municipal governments passed firearms resolutions that were preempted by state law.

However, shared party affiliations don"t guarantee that state and local governments will see eye-to-eye. For example, New York"s Democratic governor, Andrew Cuomo, signed a 2017 bill blocking a plastic bag tax in Democratic-led New York City.

Common recent targets of state preemption include ordinances related to the minimum wage and paid sick leave, firearms policy, plastic bags, and marijuana decriminalization.


Contents


3 Coronavirus4 Energy infrastructure5 Firearms6 GMOs7 Labor8 LGBT9 Marijuana10 Plastic bags11 Police department budgets12 Housing12.1 201813 Food and beverage taxes14 Ridesharing15 Sanctuary jurisdiction16 Other16.1 201816.2 Groups16.2.1 American Legislative Exchange Council (ALEC)

Timeline

The following timeline highlights recent developments in major preemption conflicts that les-grizzlys-catalans.org is covering.

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Preemption conflicts

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Coronavirus

Summary

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Coronavirus (COVID-19) preemption conflicts overviewYearStateSummary
2021Texas The Texas Supreme Court temporarily upheld Gov. Greg Abbott"s (R) mask requirement ban executive order following legal challenges from local governments.
2021Florida Several parents in Florida filed a lawsuit against Gov. Ron DeSantis (R), alleging his executive order banning mask requirements in schools violated the state constitution.
2021Oregon Mayor Stan Pulliam, along with a business owner and several interest groups, filed a lawsuit challenging Governor Kate Brown"s (D) coronavirus business restrictions.
2021FloridaGovernor Ron DeSantis (R) signed a bill into law preempting local emergency regulations.
2020PennsylvaniaLancaster County, among others, proposed reopening ahead of the state timeline.
2020GeorgiaGovernor Brian Kemp (R) withdrew a lawsuit against Atlanta"s mayor and city council after the city altered its stay-at-home order.
2020IllinoisThe Sangamon County Circuit Court issued an injunction against a school district mask mandate after Governor J.B. Pritzker (D) filed a lawsuit.

Energy infrastructure

Summary

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Energy infrastructure preemption conflicts overviewYearStateSummary
2021KansasThe Kansas State Legislature passed the Energy Choice Act, which preempted parts of the city of Lawrence"s renewable energy transition plan.
2020ColoradoA Colorado district court upheld a previous Colorado Supreme Court ruling finding a hydraulic fracking ban in the City of Longmont to be preempted by state law.
2020ArizonaArizona passed a law preempting municipal natural gas bans in new construction, which preempted parts of the city of Flagstaff"s plan to transition to renewable energy.
2019PennsylvaniaAn Allegheny Township zoning board decision to allow fracking in each of the town"s zoning districts was challenged by residents in court, with the Pennsylvania Commonwealth Court ultimately upholding the zoning board"s decision.
2017ColoradoColorado’s Attorney General filed a lawsuit against Boulder County for having a moratorium on new oil and gas development that conflicted with a state law, but the lawsuit was dismissed as the moratorium had expired.
2016VariousThirty-three mayors issued a statement seeking greater local control over fracking.
2016West VirginiaA federal judge struck down a Fayette County fracking waste disposal ban on the grounds that it was preempted by state and federal law.
2016LouisianaSt. Tammany Parish attempted to block a drilling project using zoning ordinances, but the Louisiana Supreme Court held that the parish’s ordinances were preempted by state oil and gas regulations.
2016ColoradoThe Colorado Supreme Court struck down a five-year moratorium on fracking in Fort Collins and a fracking ban in Longmont since the cities’ fracking regulations were preempted by state law.
2015TexasTexas passed an oil and gas preemption bill in response to a Denton ballot measure that would have banned fracking in the city.

Firearms

Summary

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Firearms preemption conflicts overviewYearStateSummary
2021MinnesotaThe Minnesota Gun Owners Caucus and two individuals filed a complaint challenging the Minnesota State Fair"s ban on weapons.
2021MissouriCole County judge rejected St. Louis, St. Louis County, and Jackson County"s request that House Bill 85 be ruled unconstitutional.
2021FloridaA Florida appeals court upheld a 2011 law imposing penalties on local government officials who enact or enforce firearms ordinances.
2021ColoradoA Colorado district court affirmed the preemption of a Boulder ordinance that would have banned the possession, sale, and transfer of certain types of automatic firearms and magazines. Gov. Polis (D) later signed Senate Bill 256 permitting local governments to enact ordinances or regulations on firearms that are not less restrictive than state laws.
2021WashingtonA Washington appeals court upheld a lower court"s ruling affirming the preemption of a local firearms storage regulation.
2020PennsylvaniaPhiladelphia, joined by city residents impacted by violence related to firearms and Ceasefire Pennsylvania, filed a lawsuit challenging the state"s firearms preemption laws.
2020VirginiaAfter the Virginia legislature passed a package of seven gun laws, local jurisdictions passed resolutions refusing to enforce state gun laws. Virginia Attorney General Mark Herring responded by saying these local resolutions had no legal force.
2019MontanaA legislatively referred state statute was placed on the November 3, 2020, ballot that, if passed, would remove local governments" authority to regulate the carrying of permitted concealed weapons.
2017FloridaAn appeals court rejected a lawsuit claiming local firearm ordinances passed in 1957 and 1984 were in violation of a 1987 state law preempting local regulation of firearms because the ordinances were not being enforced.
2017IowaThe governor signed a firearms bill into law that would prohibit cities, counties, and townships from passing firearm regulations.
2017MichiganA majority in the Michigan House of Representatives voted to pass legislation prohibiting local firearms regulation.
2017MontanaThe Montana Attorney General struck down a Missoula background check ordinance citing a Montana State Legislature ordinance prohibiting local government from enacting firearm regulations.
2017PennsylvaniaA Pennsylvania appellate court struck down a Lower Merion township prohibition on carrying or discharging firearms in a public park for its potential to violate a state-level firearms law.
2017WashingtonThe Washington Supreme Court upheld a Seattle tax on firearms and ammunition, finding it not in violation of a state law prohibiting local regulation of guns.
2016ArizonaThe Arizona Supreme Court struck down a Tuscon law requiring confiscated or surrendered firearms to be destroyed because it contradicted a state law requiring law enforcement agencies sell such firearms.
2016PennsylvaniaAllentown Council indefinitely tabled an ordinance requiring gun owners report lost or stolen firearms after a previous iteration of the ordinance had been repealed to avoid a lawsuit enabled by a 2015 state law, which was later repealed by the Pennsylvania Supreme Court.
2010OhioThe Ohio Supreme Court upheld a 2006 state law that invalidated stricter local firearms ordinances, like those passed in the city of Cleveland.

GMOs

Summary

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GMO preemption conflicts overviewYearStateSummary
2016OregonA Josephine County ban on GMOs was struck down by state courts on the grounds that the ban conflicted with a state law prohibiting counties from regulating GMOs.
2015HawaiiA federal judge struck down a Maui County GMO moratorium on the grounds that it was preempted by state agriculture laws regulating GMO use.
2015OregonAfter Jackson County voters approved a GMO ban, farmers filed suit and the county agreed to a settlement.
2014HawaiiA federal court struck down a Kauai County law requiring large agricultural operations to report pesticide and genetic engineering on the grounds that it deviated from state law.

Labor

Summary

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Labor preemption conflicts overviewYearStateSummary
2021TennesseeTennessee passed a law preempting localities from instituting certain regulations related to contractors, which preempted proposed legislation in Nashville relating to construction health and safety regulations.
2020MinnesotaThe Minnesota Supreme Court upheld a Minneapolis sick time ordinance, ruling it was not preempted by state law.
2020TexasA federal judge blocked a Dallas paid sick leave ordinance on the grounds that it was preempted by state law.
2019ColoradoColorado became the first state to repeal a state law preempting local wage regulation.
2019MaineMaine’s state government passed a bill regulating paid leave earnings that also included a preemption clause.
2019North DakotaThe governor signed a bill into law that would prohibit local governments from setting a minimum wage greater than the state’s minimum wage.
2018WisconsinA bill was passed by the state prohibiting local governments from enacting employment ordinances related to a range of subjects.
2018TexasThe Texas Third District Court of Appeals ruled Austin’s paid sick leave ordinance was unconstitutional, saying it was preempted by the state’s minimum wage law.
2017New YorkA New York Supreme Court judge upheld a set of New York City ordinances regulating scheduling for restaurant workers on the grounds that the city’s ordinances did not infringe on state prerogatives.
2017WashingtonAn income tax approved by the Seattle City Council was struck down in court. According to a 1984 state law, the city did not have authority to impose the income tax without approval from the state legislature.
2017IowaThe governor signed a bill into law that would prohibit local governments from setting a minimum wage greater than the state’s minimum wage.
2017FloridaAn ordinance passed in Miami Beach to raise the minimum wage was struck down in court on the grounds that it violated a state law barring localities from setting their own minimum wages.
2017MinnesotaThe governor of Minnesota vetoed a bill that would have prohibited local ordinances from setting minimum wage or paid leave requirements higher than the state mandated.
2017MissouriA bill was passed by the state legislature to preempt local minimum wage regulations, namely those in St. Louis and Kansas City.
2017OhioA Cuyahoga County judge permanently blocked a state law that would have preempted Cleveland’s Fannie Lewis Law, which regulated hiring at public construction projects.
2016AlabamaThe Alabama State Legislature passed a law to preempt a minimum wage ordinance passed by the Birmingham City Council. The Alabama NAACP filed a lawsuit on the grounds that the law was unconstitutional, but the case was dismissed by the Eleventh Circuit.
2015PennsylvaniaThe Pennsylvania Supreme Court upheld a Pittsburgh paid sick leave ordinance, saying that the city has authority based on the Pennsylvania Disease Prevention and Control Law.
2011WisconsinIn response to a proposed paid sick leave ballot measure in Milwaukee, a state law was passed preempting local paid sick leave ordinances.

LGBT

Summary

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LGBT preemption conflicts overviewYearStateSummary
2017ArkansasA Fayetteville ordinance barring discrimination on the basis of sexual orientation or gender identity was struck down by the Arkansas Supreme Court on the grounds that it violated a state law prohibiting local government from expanding protected classes.
2017TexasThe Texas State Legislature did not pass a proposed bill that would have prohibited local ordinances requiring access to bathrooms on the basis of gender identity.
2016North CarolinaIn response to a Charlotte ordinance requiring access to bathrooms on the basis of gender identity and prohibiting businesses from discriminating against LGBT customers, the North Carolina State Legislature passed a bill prohibiting localities from enacting such ordinances. The legislature repealed the bill a year later.

Marijuana

Summary

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Marijuana preemption conflicts overviewYearStateSummary
2021MassachusettsMassachusetts Supreme Court ruled that local bylaws requiring marijuana dispensaries to operate as nonprofits were preempted by state statute.
2019CaliforniaTwenty-four cities sued the California Bureau of Cannabis Control arguing that a state policy on home delivery of marijuana violated state law, which allowed localities to ban marijuana establishments within their borders. The case was dismissed after the court found the local ordinance was not in violation of state regulations.
2019CaliforniaCalifornia filed to join a lawsuit against Santa Cruz county seeking to prevent the county from enforcing an ordinance on marijuana delivery.
2018CaliforniaBerkeley City Council voted to enact a marijuana sanctuary policy, which would bar city agencies and employees from assisting with the enforcement of federal marijuana law.
2017FloridaA bill was passed legalizing and regulating medical marijuana in the state, preempting efforts by county governments to enact their own medical marijuana regulations.
2017TennesseeThe state passed a law preempting ordinances to decriminalize marijuana in Nashville and Memphis.
2016KansasThe Kansas Supreme Court overturned a Wichita ballot measure that would have decriminalized the possession of marijuana.

Plastic bags

Summary

Click here to read more about plastic bag preemption conflicts.

Plastic bag preemption conflicts overviewYearStateSummary
2020OhioA state law was passed prohibiting local governments from regulating the use of auxiliary containers, such as plastic bags, for one year.
2020PennsylvaniaAn amendment to a budget bill prohibited local governments from regulating the use of auxiliary containers until July 1, 2021, or six months after the end of the state"s pandemic emergency order—whichever was later.
2020North DakotaA state law was passed prohibiting local governments from regulating the use of auxiliary containers, such as plastic bags.
2019FloridaA Florida court upheld the constitutionality of sections of state law that prohibit local governments from regulating plastic bags and other packaging, causing cities and towns with such ordinances to repeal or delay their bans.
2019TennesseeA bill was passed prohibiting local governments from regulating the use of auxiliary containers, such as plastic bags.
2019OklahomaA law was passed prohibiting local governments from restricting, taxing, banning, or regulating the use, disposition, or sale of auxiliary containers, such as plastic bags.
2019North DakotaA law was passed prohibiting local governments from regulating, restricting, or taxing the use of auxiliary containers, such as plastic bags.
2018TexasThe Texas Supreme Court struck down a Laredo city plastic bag ban, finding it in violation of a state prohibition of local regulations on solid waste management.
2017ArizonaThe state Attorney General ruled that a five-cent bag fee enacted by the Bisbee City Council violated a state law prohibiting local regulations on retail bag use.
2017MinnesotaA state law was passed prohibiting cities from enacting bag regulations, including a ban on plastic bags and a five-cent tax on paper bags that had been previously approved by the Minneapolis City Council.
2017New YorkA law was passed delaying the implementation of a New York City bag tax.
2017PennsylvaniaThe governor vetoed a bill that would have preempted local restrictions on plastic bag use by retailers.
2016CaliforniaCalifornia voters approved a statewide plastic bag ban, which included a clause allowing any public agency with preexisting plastic bag regulations to continue enforcing those regulations.
2016MichiganA state law was passed prohibiting local bag regulations, including a ten-cent bag fee that had been approved by Washtenaw County officials.

Police department budgets

Summary

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Police department budget preemption conflicts overviewYearStateSummary
2021MissouriAfter the city council in Kansas City voted to approve ordinances reallocating a portion of the city"s police budget to other public safety measures, the Kansas City Board of Police Commissioners, a state-level board with authority over Kansas City"s police department, voted to sue the city government.
2021TexasAustin increased its police department funding after Governor Greg Abbott (R) signed a law establishing penalties for cities that reduce their police department budgets.
2021GeorgiaGovernor Brian Kemp (R) signed a bill into law preempting local police department budget reductions after proposals to do so failed in Athens-Clarke County and Atlanta.
2021FloridaGovernor Ron DeSantis (R) signed a law preempting local police department budget reductions.

Housing

2018

California ballot measure: California Proposition 10, Local Rent Control InitiativeSee also: California Proposition 10, Local Rent Control Initiative (2018)

California Proposition 10, the Local Rent Control Initiative, was on the ballot in California as an initiated state statute on November 6, 2018.<2> The measure was defeated.

Proposition 10 was an initiated state statute that would have repealed the Costa-Hawkins Rental Housing Act (Costa-Hawkins), thus allowing local governments to adopt rent control ordinances—regulations that govern how much landlords can charge tenants for renting apartments and houses.<2> Costa-Hawkins is a state statute that limits the use of rent control in California by providing that cities cannot enact rent control on (a) housing first occupied after February 1, 1995, and (b) housing units where the title is separate from connected units, such as condominiums and townhouses. Prior to the enactment of Costa-Hawkins, local governments were permitted to enact rent control, provided that landlords would receive just and reasonable returnsCourts in California have interpreted just and reasonable returns as returns that (a) are comparable to the returns in other sectors having similar risks, (b) are high enough to encourage good management, (c) reward efficient practices, (c) enable operators to maintain their credit, and (d) discourage disinvestment. According to the California Supreme Court, there is no particular formula to determine what is a just and reasonable return and the selection of a standard is a task for local governments.<3> on their rental properties. The California State Legislature passed Costa-Hawkins in 1995.<4><5><6>

California Proposition 10

ResultVotesPercentage
Yes4,949,54340.57%

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No

7,251,44359.43%
Results are officially certified.Source

Food and beverage taxes

Summary

Click here to read more about food and beverage tax preemption conflicts.

Food and beverage tax preemption conflicts overviewYearStateSummary
2020California A lawsuit was filed in California challenging the constitutionality of the state"s soda tax preemption law.
2019Oregon A veto referendum was introduced that would overturn a prohibition on local governments imposing taxes on grocery sales, but the referendum was not certified.
2018ArizonaA bill was passed preempting cities and counties from taxing soda, requiring they instead tax all food equally.
2018CaliforniaA law was passed prohibiting cities and counties from implementing a tax on soda and sugar-sweetened drinks through 2030, preempting fees in Berkeley, San Francisco, Oakland, and Albany.
2018PennsylvaniaThe Pennsylvania Supreme Court upheld a Philadelphia tax on soda, finding it did not violate state law.

Ridesharing

Summary

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Ridesharing preemption conflicts summariesYearStateSummary
2020CaliforniaCalifornia voters approved Proposition 22, a ballot measure that preempts local regulation of ridesharing services.
2017FloridaThe Florida State Legislature approved legislation that would prohibit local governments from regulating requirements for rideshare employees.
2017New YorkThe New York State Legislature passed a budget allowing and regulating rideshare company operations outside of New York City.
2017TexasThe state passed a bill regulating rideshare company operations, preempting existing regulations in cities like Austin, Corpus Christi, and Houston.

Sanctuary jurisdiction

Summary

See also Sanctuary policy preemption conflicts between the federal and local governments

Local jurisdictions have employed a spectrum of law enforcement policies that do not distinguish between citizens and other residents. This spectrum ranges from instructing police not to inquire about immigration status at traffic stops to providing municipal identification cards to city residents regardless of citizenship in order to gain access to public services.

On April 28, 2021, the Biden administration rescinded a Trump administration executive order that introduced penalties against sanctuary cities—which limit the enforcement and prosecution of federal immigration laws—including making them ineligible for federal grants. The order drew opposition from cities that self-identified as sanctuary jurisdictions.<7> A federal ruling on April 25, 2017, halted the order.

The Trump administration executive order was an example of preemption, a legal concept that allows the federal government to preempt local or state laws if those laws conflict with federal laws.<8> To learn about preemption conflicts between local and state governments, click here.

les-grizzlys-catalans.org"s analysis uses a local jurisdiction"s stance on detainer requestsA detainer request asks a law enforcement agency to hold an arrested person up to 48 hours beyond the time typical for an offense so ICE can assume custody. Under the Priority Enforcement Program, a detainer request is used when federal officials determine that the individual has been convicted of a serious offense, poses a threat to national security, or a removal order is on file.<9> from U.S. Immigration and Customs Enforcement (ICE) as a primary indicator of sanctuary status. Cities and counties that decline detainer requests outside of capital offenses or otherwise provide public services without regard to immigration status are categorized as sanctuary jurisdictions.

Other

2018

Ballot measure in Tempe, Arizona

In November 2017, the Tempe, Arizona City Council approved an ordinance that requires organizations spending more than $1,000 in a city election to disclose their funding sources. The city council vote referred the ordinance to voters, who approved it in March 2018.<10>

Gov. Doug Ducey (R) signed House Bill (HB) 2153 on April 5, 2018. The law established limits on city, town, county, and political subdivisions, prohibiting them from requiring organizations to disclose campaign contribution information.

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On March 11, 2019, Arizona State Sen. Vince Leach (R) asked the Arizona attorney general"s office to investigate the Tempe ordinance, arguing it violated HB 2153.<10>