A Welcome Turning of the Tide on State Preemption of Cities


In an op-ed published in Law360, Professor Nestor Davidson analyzes indications that the nearly decade-long trend of state policymakers enacting legislation that overrides city and local government policies could be shifting.

State preemption has undermined local authority across a wide array of other policy areas that cities have been active in addressing in recent years. These policy areas include: minimum wage, fair scheduling and paid sick leave; tobacco regulation, sugary drink taxes, firearm safety and other aspects of public health; plastic bags, agricultural nuisances, fracking and other environmental issues; the sharing economy, autonomous vehicles, 5G deployment and community broadband; immigration sanctuary; and inclusionary zoning and rent regulation, among many other domains. This wave of “new preemption” has been fundamentally reshaping local democracy and seemed only to be gathering force, year after year. Until now.

More encouraging, efforts to repeal preemption and restore local policy discretion began to gain momentum this past legislative season. Colorado repealed statewide preemption of local authority to regulate the siting of oil and gas, to tax and regulate tobacco, and to set minimum wages — the first state in the country to do so. Arkansas repealed part of its state law barring municipal broadband. And LSSC/SiX report that many other repeal efforts were started, with legislation seeking to free local governments from preemption introduced in nearly half the states.

What is harder to debate is that cities are increasingly tasked with solving some of our most intractable policy challenges and come to that task with distinctive knowledge of the people and places they serve. The election cycle looming next year, while important at the federal level, is equally critical for state and local governments and the new preemption’s undermining of the work of local governments should be a central focus

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