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Topic: Preemption of State and Local Laws

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	Welcome to Pace Law School
		Localities involved in the Saddle Rock case argued that the state area variance standards represent a legislative effort to clarify and codify various common law requirements that existed at the time of its enactment, but was never intended to preempt the power of localities to enact their own standards.
		Most generally applicable land use laws adopted by the state are neither as extensive in scope as the variance provisions, nor does their legislative history evidence an intention to solve a statewide problem by establishing mandatory standards.
		Since a variety of general laws are extensive in scope and supersession of their provisions is permitted, the extensive scope of state laws alone is not enough to justify a finding of preemption.
	www.pace.edu /lawschool/landuse/Preemption&PUD.html (2069 words)

	Bambooweb: Preemption of state and local laws in the United States
		Conflicts preemption is where it is impossible to comply with both the federal statute and the state or local law.
		The second type of implied preemption is preemption because state law impedes the achievement of a federal objective.
		This type of preemption occurs when a state or local law interferes with a goal or objective Congress was trying to attain with a federal statute.
	www.bambooweb.com /articles/p/r/Preemption_of_state_and_local_laws_in_the_United_States.html (344 words)

	FCC 96-78 Before the FEDERAL COMMUNICATIONS COMMISSION IB Docket No. 95-59 (Site not responding. Last check: 2007-09-12)
		The original preemption rule was adopted in 1986 in response to evidence that state and local governments were, in some instances, imposing unreasonably restrictive burdens on the installation of satellite antennas.
		Local government representatives claim that the presumptions shift the burden of persuasion to the locality and that this violates established state law precedent holding that local laws are presumed valid.
		Local governments, on the other hand, argue that the Commission's rule allows them to collect reasonable costs based on permit and inspection fees so that costs attributable to the satellite industry be paid by those who benefit from the technology and not be passed on to the taxpayer in general.
	www.rivaridge.com /htmls/fcc1.html (9591 words)

	FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code
		Thus, preempting state or local governmental self-regulation (or regulation of political inferiors) would work so differently from preempting regulation of private players that it is highly unlikely that Congress intended to set off on such uncertain adventures.
		Preemption of the state advertising restriction freed a seller who otherwise had the legal authority to advertise and the money to do it if that made economic sense.
		Preemption would, for example, leave a municipality with a genuine choice to enter the telecommunications business when state law provided general authority and a newly unfettered municipality wished to fund the effort.
	caselaw.lp.findlaw.com /cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=02-1238 (6224 words)

	Limited Preemption of Firearms Laws
		These preemption laws have two foundations: First and foremost, protecting citizens from infringement of their federal Second Amendment rights, and from infringements of their state constitutional rights to arms and rights to self-defense.
		Under statewide law, it is lawful to carry a handgun in an automobile for lawful protection.
		Local government should not be in the business of compiling lists of people who belong to political organizations, lists of people who buy books, lists of books owned by a particular individual, or lists of people who have undergone particular medical procedures.
	www.davekopel.org /2A/IB/Limited-Preemption.htm (2678 words)

	FDIC: Public Hearing on Preemption Petition
		States are in a better position to determine what laws are appropriate to protect their citizens than are the federal agencies.
		Local banks chartered in states with stricter laws will have an incentive to convert to national charters or relocate to another state in order to avoid the need to comply with local law.
		State banks will constantly seek rulings as to whether the National Bank Act preempts host state laws and determinations of state law in instances where home state law is unclear or silent as to powers of state banks.
	www.fdic.gov /news/conferences/agency/public_vredevoogd_test.html (4847 words)

	American Lung Association
		State law supersedes any municipal or county ordinance on the subject of the regulation of smoking in public places and workplaces.
		Preempts local smokefree air or youth access ordinances and regulations enacted or promulgated after March 15, 1995, except local governments and special school districts are allowed to regulate smoking in their buildings and on their property.
		Preempts local smokefree air ordinances that are not essentially identical to state law except for certain places of outdoor public access; youth access preemption only affects the provision on placement of tobacco products; restrictions on the advertising of tobacco products are also preempted.
	slati.lungusa.org /appendixe.asp (768 words)

	ARRLWeb: PR Docket 91-36
		PR Docket 91-36 is the federal preemption of state and local laws concerning amateur use of transceivers capable of reception beyond amateur allocations.
		The ARRL motion discusses state statutes and local ordinances commonly known as "scanner laws," the violation of which may be a criminal misdemeanor with the possibility of equipment confiscation.
		With respect to scanner laws at the local level, ARRL has notes that it is difficult to determine the precise number of such ordinances.
	www.arrl.org /announce/regulatory/pr91-36/pr91-36.html (3437 words)

	Environmental Commons: Seed Law Preemption: California
		Areas of traditional state prerogatives, such as local land use decisions and the issuance of drivers' licenses, have been federalized, and states have been blocked from protecting their citizens from emerging threats, such as unsolicited "spam" email.
		In the case of Terri Schiavo, Congress passed legislation and issued subpoenas to overturn the judgment of state courts and prevent the removal of Ms.
		One law passed by Congress preempts strong anti-spam laws in several states, while another law limits state authority to enact identity theft and financial privacy laws.
	www.environmentalcommons.org /preemption-federal.html (799 words)

	How to Promote Federalism and How Not to
		Preemption issues typically arise when federal rules are less demanding of regulated industries than are state or local regulations.
		As a rule, the states do not terribly mind preemption in the form of a federal "floor" of regulation (that is to say, federal rules that are more stringent than state or local rules): after all, competing jurisdictions will be locked into the same rules.
		As already suggested, however, the interest that principally unites state and local entities is a desire to remove federal barriers to organized looting.
	www.federalismproject.org /masterpages/publications/howto.html (2056 words)

	ARRLWeb: PR Docket 91-36
		PR Docket 91-36 is the federal preemption of state and local laws concerning amateur use of transceivers capable of reception beyond amateur allocations.
		The ARRL motion discusses state statutes and local ordinances commonly known as "scanner laws," the violation of which may be a criminal misdemeanor with the possibility of equipment confiscation.
		With respect to scanner laws at the local level, ARRL has notes that it is difficult to determine the precise number of such ordinances.
	www2.arrl.org /announce/regulatory/pr91-36/pr91-36.html (3416 words)

	Be Hands Free - US State and Local Cell Phone Use in Car legislation - Spring 2005
		This article discusses current state and local laws that affect cell phone use in cars as well as covering current legislation that is being reviewed by lawmakers across the United States.
		Their laws dont make a distinction between talking on a cell phone in ones hand or using a hands-free cell phone accessory such as a car-kit or a cell phone headset.
		Although currently, we have limited laws in effect regulating cell phone use in cars, this may not be the case after this years legislatures meet.
	www.behandsfree.com /legislation.aspx (1679 words)

	Council for Responsible Genetics
		Preemption is a judicial principle that declares the supremacy of one level of government over another in a specific subject area.
		Essentially, preemption at the state level is a trump card used to remove communities' rights to enact stronger laws at the local level.
		Just as the tobacco industry acted to influence and introduce preemptive legislation restricting local tobacco laws, it is clear that biotech corporations and their affiliated associations are behind the moves to thwart local efforts to better protect public welfare and small family farmers by creating more sustainable visions for our food supply.
	www.gene-watch.org /genewatch/articles/18-3Bailey.html (1159 words)

	ARRLWeb: N9GL's RF Safety Column: What about Federal Preemption of State and Local Laws?
		No state or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions.
		The LSGAC agreed with state and local regulators that they should be able to determine for themselves that a transmitting facility is in compliance with FCC regulated limits.
		The State of Missouri is legally permitted to pass a law that regulates antenna structures (other than cellular and PCS towers) on the basis of RF-based health and safety concerns.
	www.arrl.org /rfsafety/lapin/2001/07/01/1 (1434 words)

	New Rules Project - Preemption Watch
		State attorneys general say it would allow a “race to the bottom” in credit practices, as has already been seen with national banks locating in states that allow banks to charge high interest rates and penalties (including South Dakota and Delaware).
		It was the last state law on the matter in existence since the 1996 U.S. Supreme Court decision in Barnett Bank v.
		State and local governments have filed more than 140 lawsuits to require oil and chemical companies to take responsibility for the cost of removing MTBE from groundwater resources.
	www.newrules.org /preempt (1578 words)

	[No title]
		State agency means an agency of any of the several states, the District of Columbia, or Puerto Rico that participates under the pipeline safety laws (49 U.S.C. 60101 et seq.) [53 FR 47096, Nov. 21, 1988, as amended by Amdt.
		State agency means an agency of any of the several states, the District of Columbia, or Puerto Rico that participates under the pipeline safety laws (49 U.S.C. 60101 et seq.).
		(b) This subpart shall not be construed to preempt provisions of State [[Page 185]] criminal law that impose sanctions for reckless conduct leading to actual loss of life, injury, or damage to property, whether the provisions apply specifically to transportation employees or employers or to the general public.
	www.wallacejordan.com /drugfree/49cfr-part199.txt (8055 words)

	[No title]
		Therefore, ARRL explains, scanner laws can, inter alia, render amateur radio licensees traveling interstate by automobile vulnerable to arrest and to the seizure of their radio equipment by state or local police.
		One commenter, the Michigan Department of State Police, states that although it cooperates with the amateur service during emergencies, it is concerned about isolated incidents of apparently unlawful actions taken by amateur licensees upon receipt of public safety communications outside of the amateur radio band.
		Such a conflict arises when "compliance with both federal and state regulations is a physical impossibility,"...or when state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Furthermore, "[f]ederal regulations have no less preemptive effect than federal statutes." 9.
	www.pcarc.net /pr91-36.txt (1911 words)

	NAR Urges FDIC to Deny Preemption Petition : RISMedia
		NAR is concerned that the requested preemption would result in states competing to entice banks — and the jobs and investment that come with them — to relocate by enacting laws that minimize regulatory burden at the expense of consumer protections.
		NAR believes recent regulations issued by the Office of the Comptroller of the Currency (OCC) that allow federally chartered banks to preempt state laws have hurt the efforts of state and local governments to protect their citizens and provided an unfair competitive advantage to national banks.
		FDIC preemption would be an integral link in a chain of events that could lead to the steady erosion and ultimate elimination of the separation between banking and commerce," Vredevoogd testified.
	www.rismedia.com /wp/2005-05-25/nar-urges-fdic-to-deny-preemption-petition-2 (711 words)

	Preemption Documents
		This index analyzes the implementation of the preemption provisions in Federal hazmat law by DOT and the courts.
		A more general preemption standard ("inconsistent") was contained in the original HMTA, "in order to preclude a multiplicity of state and local regulations and the potential for varying as well as conflicting regulations in the area of hazardous materials transportation." S.Rep. No.
		Section 5125(g) provides that a State, political subdivision, or Indian tribe may impose a fee related to transporting hazardous material only if the fee is fair and used for a purpose related to transporting hazardous material, including enforcement and planning, developing, and maintaining a capability for emergency response.
	rspa-atty.dot.gov /preempt/intro.html (765 words)

	A DECADE OF DEVOLUTION -- OR JUST TALK?
		It would forbid states or localities -- for at least two to three years -- from placing any new taxes on Internet sales or services.
		Take the Clinton White House, which failed to consult at all with governors, mayors and county officials before issuing a May 14 executive order that revoked more states rights'-oriented orders of the Reagan and earlier Clinton administrations and seemed to open the door to broad federal preemption of state and local policies.
		The administration agreed to back off and hold negotiations with states and localities -- as it clearly ought to have done in the first place.
	www.citistates.com /prevpub/npc081698.htm (809 words)

	U.S. Newswire : Releases : "NAR Urges FDIC to Deny Preemption Petition" (Site not responding. Last check: 2007-09-12)
		NAR is concerned that the requested preemption would result in states competing to entice banks -- and the jobs and investment that come with them -- to relocate by enacting laws that minimize regulatory burden at the expense of consumer protections.
		Rather than level the playing field between national and state banks, the preemption petition would disrupt the dual banking system by concentrating state charters in the few states that are willing to set the lowest standards.
		FDIC preemption would be an integral link in a chain of events that could lead to the steady erosion and ultimate elimination of the separation between banking and commerce," Vredevoogd testified.
	releases.usnewswire.com /GetRelease.asp?id=47892 (701 words)

	Problems with the 'Federalism Accountability Act' (S. 1214) - Federalism Bills - OMB Watch
		Moreover, the bill's requirements would apply to all rules (not just major rules as is the case under the Unfunded Mandates Reform Act of 1995), even where impacts to state or local governments are minimal.
		Before issuing a notice of proposed rulemaking to the public, agencies would have to "notify, consult with, and provide an opportunity for meaningful participation by public officials of governments that may be potentially by affected by the rule..." This requirement, which is subject to judicial review, is incredibly broad.
		Where Congress or an agency intends to preempt state or local law, the bill requires that there be a specific statement of preemption within the legislation or rule.
	www.ombwatch.org /article/articleview/573/1/285?TopicID=1 (508 words)

	Federalism Bill Stalls in House, Moves to Senate Floor - Federalism Bills - OMB Watch
		This broad requirement could be interpreted to require that agencies be expected to pick through the details of every state and local law that might be preempted, which would be unimaginably time-consuming.
		Another important amendment by Thompson fixed a problem that would have given state and local officials virtual veto authority over the way agencies choose to measure their own performance under the Government Performance and Results Act.
		The order calls on agencies to consider federalism impacts and to consult with state and local officials as part of their rulemakings.
	www.ombwatch.org /article/articleview/570/1/223 (625 words)

	Advisory Recommendation Number 3:
		The NAB/AMST rule would preempt any state or local land use, building or similar law that "impairs the ability of federally authorized radio or television operators to place, construct or modify broadcast transmission facilities" unless the law is justified according to prescribed purposes.
		This proposal would be equally paralyzing for both local governments, for whom the Commission is an expensive, distant and unfamiliar forum, and the Commission.
		In other cases, the Petition seeks preemption of laws of general application and cites as obstacles procedures that the applicant undertook voluntarily or without complaint to local officials.
	www.fcc.gov /statelocal/recommendation3.html (1407 words)

	[No title]
		Historically, it has connoted efforts by Big Tobacco to prevent states and localities from passing laws that are tougher than those enacted by the federal government.
		To the contrary, the ACS expressly stated in its constitutional analysis: To the extent that the [proposed settlement] preempts state licensing and "no sales to minors" laws, it is imperative that the Act's language clarify that such preemption would not prevent states and localities from enacting more stringent standards than those included in the Act.
		The ACS's position on preemption is consistent and well-settled: although the federal government should enact broad-based measures to effectively protect the public health from the harms of tobacco use, states and localities should be permitted and encouraged to enact measures that are more stringent than the federal standards.
	www.no-smoking.org /dec97/12-16-97-5.html (2063 words)

	[No title]
		DOT Agency means an agency (or ``operating administration'') of the United States Department of Transportation administering regulations requiring alcohol and/or drug testing (14 CFR parts 61, 63, 65, 121, and 135; 49 CFR parts 199, 219, 382, 653 and 654), in accordance with part 40 of this title.
		Employer means any person (including the United States, a State, District of Columbia, tribal government, or a political subdivision of a State) who owns or leases a commercial motor vehicle or assigns persons to operate such a vehicle.
		Performing (a safety-sensitive function) means a driver is considered to be performing a safety-sensitive function during any period in which he or she is actually performing, ready to perform, or immediately available to perform any safety-sensitive functions.
	www.wallacejordan.com /drugfree/49cfr-part382.txt (7422 words)

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