Home – State Lawmakers Growing Less Enthused About 'Local Control'

State Lawmakers Growing Less Enthused About 'Local Control'

 When voters in Denton, Texas shocked just about everyone last November by banning the controversial oil and gas extraction process hydraulic fracturing within city limits, it set up a clash between what the Texas Tribune called “two interests Texans hold dear: petroleum and local control.” But while Denton, a small city about an hour northwest of Dallas, won that battle the petroleum industry ultimately won the war. On May 18 Gov. Greg Abbot (R) signed HB 40, industry-backed legislation that nullified Denton’s ban and essentially barred cities and counties across Texas from adopting their own rules regulating oil and gas operations in the Lone Star State.


The bill is just one of numerous statehouse measures around the nation this year aimed at countering a growing number of local ordinances that impose their own regulations within city or county boundaries. With Congress and even some statehouses often bogged down in partisan gridlock, advocacy groups on both ends of the political spectrum are now more than ever taking their fights directly to city councils and local ballot measures. Local municipalities have in recent years become ground zero for battles over not only fracking but regulating ridesharing services and payday lenders, raising the minimum wage, imposing soda taxes, electronic cigarette bans and labeling GMO foods among other issues.


It is a strategy that has worked well, particularly for advocates of raising the minimum wage. Although several states have raised their wage over the last two years, cities like Seattle, San Francisco, Santa Fe, Chicago and Los Angeles have adopted their own measures calling for significantly higher benchmarks than current state standards. Seattle and Los Angeles have raised the bar the highest, hiking their respective wage floors to $15. That is the highest in the country and almost $5 per hour more than the $10.10 standard currently under consideration on Congress. Washington’s statewide standard is $9:47; California’s is $9.00.


As advocates gain more success with this and other issues at the local level, opponents are now turning back to statehouses for help avoiding what they see as a patchwork of confusing or contradictory local laws.


In May, for instance, at the behest of the GOP-controlled Legislature and ridesharing companies like Uber and Lyft Wisconsin Gov. Scott Walker (R) signed AB 143, which establishes statewide rules for those services while also barring local governments from imposing harsher standards. In April, under heavy lobbying from plastic bag manufacturers Arizona Gov. Doug Ducey (R) signed SB 1241, which prohibits local governments from banning single-use plastic bags and from letting retailers charge customers a fee for them. That same month Tennessee Gov. Bill Haslam (R) signed HB 995, an NRA-backed bill allowing anyone with a concealed-carry permit to bring their guns into parks, schools and sports fields. The measure further bars local governments from imposing any further bans on weapons in public parks. And in February, Arkansas Gov. Asa Hutchinson (R) signed SB 202, a measure that blocks cities and counties from adopting anti-discrimination protections for members of the LGBT community or others not currently covered under state anti-discrimination laws.


Other measures may soon follow. Two more bills pending in Oklahoma would bar cities and counties from directly regulating fracking. The first of the Oklahoma measures, SB 809, would prohibit cities from banning fracking and is now with Gov. Mary Fallin (R), who is expected to sign it into law. The second, SB 468, which would deem any interference with oil and gas production to be theft and allow the oil companies to sue for economic damages, has passed both legislative chambers but is currently held up in a joint House-Senate conference committee. According to LexisNexis State Net, measures are also currently pending in Texas to prohibit local governments from installing red light cameras (SB 714 and HB 1131), in Michigan (HB 4052) to block cities from raising the minimum wage or mandating certain employee benefits, and in California (AB 34) to give the state primacy over regulating medical marijuana dispensaries, now currently in the purview of cities and counties. 


The reason for going local is simple, says political consultant Grant Gillham, who has worked on ballot measures and legislative campaigns all over the country: success at the local level, particularly in a major metropolitan area like Chicago or Los Angeles, is a great way to leverage statewide action down the road. It can also force opponents of a cause like hiking the minimum wage to fight costly battles on multiple fronts.


“For corporations, it is just a lot harder and a lot more expensive if you are trying to stop something in multiple locations at the local level than at the state level,” he says. “It really makes a strong argument for starting a campaign locally.”


Measures to override the results of those efforts have some people accusing state lawmakers of talking out of both sides of their mouths. After signing HB 40, Gov. Abbot was asked if Texas was being hypocritical for striking down local control when he and legislators routinely accuse the federal government of overreaching its authority and usurping states’ rights. Abbot rejected the claim.


“We have sued the federal government multiple times because of the heavy hand of regulation from the federal government – trying to run individuals’ lives, encroaching upon individual liberty,” he told the Texas Tribune. “At the same time, we are ensuring that people and officials at the local level are not going to be encroaching upon individual liberty or individual rights.”


Gillham calls Abbot’s stance “situational ideology,” though he adds that all parties are prone to use such logic when it suits their needs.


“Getting HB 40 through the Texas legislature was shooting fish in a barrel,” he says. “But most of the time it’s a fine line.”


Chris McKenzie, Executive Director of the League of California Cities, says there are many issues, such as traffic codes and civil rights standards, which really do cry out for statewide laws. And while he can cite many cases where cities have “fought small wars” of jurisdiction with state lawmakers – bills have been introduced in the California Legislature in each of the last three years that would strip cities and counties of all of their regulatory control over medical pot – he agrees that there are also just as many times where the two sides work together as partners. The League has in fact asked lawmakers in each of the last two years to step in to manage some elements of marijuana regulation he says cities don’t do well, such as oversight of pot cultivation that happens counties away from where it is consumed.


“We’re always searching for that sweet spot where the state can complement what we do,” he says.


That may have already happened to some degree again this year. Last Thursday the Assembly Appropriations Committee rejected AB 34, but parts of it were incorporated into another marijuana regulation bill, AB 266, which the League of California Cities is enthusiastically behind. AB 34’s author, Assemblymember Rob Bonta (D), has also signed on as a co-author on AB 266.


Meanwhile, back in Texas the search by Gov. Abbot,for lawmakers and cities to reach their own regulatory sweet spot remains ongoing. And if another pending bill, HB 2595 is any indication it may not be found any time soon. Under that measure, also backed by the oil industry and approved by the House on May 11, cities and counties would be barred from using ballot measures to “restrict the right of any person to use or access the person’s private property” for economic gain. The measure is currently in the Senate Committee on Natural Resources and Economic Development.