by Neil Auwarter
“If you can’t lend a hand, then get out of the way.”
–Bob Dylan
In March 2023, Sonoma County, CA, enacted an ordinance prohibiting new gas stations in the county’s unincorporated areas. “Gas stations can be toxic sites . . . and we need to shift away from fossil fuels if we’re going to make a dent in climate change,” explained Chris Coursey, chair of the county board of supervisors.1 Across the country, in 2019, the city of Ithaca, NY, enacted the Ithaca Green New Deal, a plan targeting carbon neutrality in the city by 2030, largely through gas-to-electric conversion of commercial and residential buildings and the city’s fleet of vehicles.
Local climate action measures are not limited to blue states like California and New York. In 2014, voters in the city of Denton, TX, enacted a ban on gas fracking within the city. The ban sought to eliminate more than 200 fracking wells, some near homes, schools, and playgrounds. But within a year, the Texas state legislature undid Denton’s fracking ban by passing the so-called “fracking bill,” barring cities and counties from enacting any measure “that bans, limits, or otherwise regulates an oil or gas operation … .”2
A similar scene played out in 2019 in Arizona. Tucson’s newly elected Democratic mayor, Regina Romero, had begun looking into amending the city’s building code to promote electrification in new construction. But this effort was killed in its infancy by a law passed later the same year by the Republican-controlled Arizona legislature. The new state law states natural gas utilities are “not subject to further regulation by a municipality.”3
Today 20 states, almost all red, have enacted similar “preemption” statutes barring local climate action measures.4 These state legislatures have, to paraphrase Bob Dylan, not only failed to lend a hand in the fight against catastrophic climate change; they are actively standing in the way of local efforts to do so.
What is Preemption?
Preemption is the legal doctrine that a governing body may not enact a law conflicting with the law of a superior governing body. Where such a conflict occurs, the inferior law is “preempted,” meaning invalidated, by the superior law. In the United States, the hierarchy of laws, from top to bottom, is: the U.S. Constitution > U.S. statutes passed by Congress > state constitutions > state statutes passed by state legislatures > local laws passed by cities, counties, or other political subdivisions.
The legal basis for this hierarchy is found in the U.S. and state constitutions. The primacy of federal statutes over state law is based on the “Supremacy Clause” in Article VI of the U.S. Constitution: “This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land ….”
The primacy of state constitutions over state statutes, and of those state statutes over local laws, is based on 50 “mini” supremacy clauses found in each state constitution.
State and Local Governments as “Laboratories of Democracy”
But our constitutional framers sought to establish a balance between a top-down hierarchy of laws, on the one hand, and the substantial freedom of states to be self-governing. This balance is key to our federal system, in which each state serves as a “laboratory of democracy.” As U.S. Supreme Court Justice Louis Brandeis once explained, “It is one of the happy incidents of the federal system that a single courageous State may . . . serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”5 This 50-laboratory feature of our political system can be seen in widely differing laws state-to-state regarding matters such as taxation, age of sexual consent and legalization of cannabis.
The freedom of cities and counties to enact local laws is simply an extension of this notion that local self-governance is an effective tool to allow innovation and to serve the will of the people in the places where they live. Accordingly, each state constitution grants law-making power to localities, where not inconsistent with state law. This is why cities or counties can have widely differing laws regarding matters such as building codes, speed limits, and alcohol sales.
How the Oil & Gas Industry Weaponized Preemption
While preemption as a legal doctrine has existed since the birth of the nation, the strategic use of state preemption by industries seeking to escape local regulation is relatively recent. The pioneer in this area was Big Tobacco. In the 1980s, the tobacco industry began lobbying state legislatures to enact laws preempting cities from regulating cigarettes. Some cities had enacted ordinances designating smoke-free areas and limiting youth-access to cigarettes by regulating where tobacco could be sold and advertised. Big Tobacco began contributing millions to state-level candidates and their Political Action Committees (PACs). In one year alone, tobacco giant Reynolds contributed nearly $6 million to 800 state-level candidates, their PACs, and tobacco-friendly ballot initiatives.6 Big Tobacco’s political spending produced results: At one point 25 states had preempted local anti-tobacco measures. But the preemption laws rankled many voters, resulting in their repeal in at least 10 states.7
The fossil fuel industry took notice of Big Tobacco’s success with the tool of preemption. So when local laws aimed at decarbonization began cropping up in the 2010s, the industry turned to the preemption playbook written by the cigarette industry. Today oil, gas and coal companies have spent billions on lobbying and campaign contributions. In the 2017-18 campaign cycle alone, the industry poured more than $350 million into lobbying and contributions, according to an analysis by OpenSecrets.org.8 Much of this money is spent on state legislative candidates willing to vote for laws preempting local decarbonization measures. For instance in Arizona, Southwest Gas alone spent nearly $50,000 on key state legislative candidates in 2018, the election just prior to the passage of Arizona’s climate preemption law. And in Texas, ahead of the 2022 primary, oil and gas interests gave $19 million to Republican state office candidates.9
This kind of political spending gives the fossil fuel industry grossly disproportionate political power relative to the public at large, even though the public has an enormous health and financial interest in decarbonization. This disparity in political power persists because of a phenomenon at the intersection of politics and economics: the rule of concentrated interests. The rule of concentrated interests holds that in politics, concentrated interest groups, e.g., the fossil fuel industry, have an inherent advantage over diffuse interest groups, comprised of many people, e.g., consumers. This is because a concentrated interest group can readily organize itself to lobby politicians and make political contributions to advance its interest. By contrast, a diffuse interest group cannot organize or fundraise as effectively.10
This disproportionality of political influence has become a fact of American political life. And the problem has gotten worse in the wake of the 2010 Citizens United decision, in which the U.S. Supreme Court ruled corporations and other organizations may spend unlimited funds on elections.11 One legal expert on local governments and urban policy, University of Virginia law professor Richard Schragger, has called the resulting pro-carbon state preemption laws an “attack on American cities.”12
Looking Forward: How Can We Respond to Preemption Protecting Big Carbon?
Despite the fossil fuel industry’s advantage over the general public in campaign spending, the political landscape is not hopeless. First, cities in the approximately 30 states without climate preemption laws are free to continue exploring ways to decarbonize at the local level.
And even in states with existing or proposed climate preemption laws, political resistance has materialized. For instance, in 2022 the Republican-controlled Pennsylvania legislature passed SB 275, which would have preempted cities from drafting building code requirements aimed at decarbonization. But the bill was vetoed by Democratic Governor Tom Wolf. Also in 2022, Republicans in the Michigan state house passed HB 4575, which would have barred cities from banning gas utilities in new or existing buildings. But the 2022 midterm election shifted the Michigan state legislature from narrow Republican majority to narrow Democratic majority, effectively scuttling HB 4575.13
In short, voting works. Recall that even after Big tobacco secured cigarette-friendly preemption laws in 25 states, voters managed to repeal at least 10 of those laws. Today, voters can urge candidates to commit to refusing Big Carbon money by signing the pledge crafted by nofossilfuelmoney.org. People can also support activist organizations like the Sierra Club that lobby legislatures for climate-friendly legislation.
Finally, it is worth recognizing our individual freedom to make sustainable choices in our own lives. No state legislature can preempt you or me from making climate-friendly choices in how we heat our homes, the cars we buy, or the modes of public transportation we choose. The acts of one person on planet Earth are small. But the multiplier effect is enormous as others follow suit. As the Chinese proverb goes, “A journey of a thousand miles begins with a single step.”
Neil Auwarter is a contributing member of the Grassroots Network Climate Emergency Mobilization team. If you have a suggestion for a future blog topic or are interested in joining the team, please reach out to us at climateemergency[at]sfbaysc[dot]org.