Speaking of fracking, Robert D. Cherren, an associate at Squire Sanders in Cleveland, has posted “Fracking Bans, Taxation and Environmental Policy” (forthcoming, Case Western Law Review) on SSRN. The article observes that, “Local governments that draw little additional revenue from fracking are more likely to ban the practice because of environmental concerns.” It is an interesting read in light of current events.
If you teach or practice in local government law, property, state constitutional law, or environmental law, I commend to your attention the Pennsylvania Supreme Court’s decision in Robinson Township v. Pennsylvania, which invalidated the state law – “Act 13” – that controversially sought to facilitate hydraulic fracturing, or “fracking,” for natural gas throughout the state. Act 13 preempted much, if not all, of local control over land use with respect to fracking, and even made local governments liable for money damages if they obstructed the fracking permitting process.
The Pennsylvania supreme court released its opinion on Dec. 19, 2013, which allowed the decision to get lost in the holiday news abyss. The majority and concurring opinions adopt novel, pathbreaking, and potentially destabilizing rationales, which I summarize below the bump. Continue reading
As is its wont, the Oregon State Legislature today passed a bill — as part of a brief “special” session supposedly dedicated to tax and pension reform — that preempts local regulatory authority. Specifically the bill preempts the authority of local governments to regulate the use of genetically modified organism (GMO) seeds within their jurisdictions. Opponents of the law say it is essentially a gift to Monsanto. Governor Kitzhaber is expected to sign the bill soon.
The New York Supreme Court, Appellate Division, First Department, today affirmed the trial court order enjoining the portion-cap rule on sugar-sweetened beverages promulgated by the New York City Board of Health. Because Mayor Bloomberg was influential in promoting this rule (as detailed in my forthcoming article in the Fordham Urban Law Journal, “Local Health Agencies, the Bloomberg Soda Rule, and the Ghost of Woodrow Wilson”), it is often referred to as the Bloomberg Soda “Ban,” even though the rule did not ban any soda.
In its opinion, the Appellate Division held that the ban violated New York state’s curious doctrine of “separation of powers,” under Boreali v. Axelrod (N.Y. 1989). This was a clarification of the trial court opinion, which seemed to invalidate the rule both for violating separation of powers and for being “arbitrary and capricious.” Boreali, as I explain in my paper, relies heavily on nondelegation reasoning that has largely been abandoned at the federal level, constricting agency power based on the dubious premise that administrative “rulemaking” and legislative “policymaking” can be neatly separated. There is nothing wrong with a state retaining its own distinctive brand of constitutional interpretation, of course, but there are good reasons to be skeptical of Boreali‘s “test” for whether administrative rulemaking has encroached on the supposedly separate sphere of legislative “policymaking.”
Boreali, as applied by the Appellate Division, requires an almost monastic approach to administrative rulemaking in which agencies like the Board of Health do not consider anything but health concerns in promulgating their regulations. Because the Board’s exemption of certain drinks (like milk-based drinks) and retail establishments was based in part on practical or economic concerns, the court held that the Board had engaged in “policymaking” outside its proper realm. Indeed, the court even concluded that because the rule “manipulates choices to try to change consumer norms,” it concerns itself with non-health-related issues, as if consumer norms were not integrally related to public health!
Other discouraging aspects of the Appellate Division opinion include its narrow reading of the Board’s authority under the city charter (which grants the Board the power to regulate “all matters affecting the health of the City”). Like the trial court, the Appellate Division believes that the Board’s powers are limited to “sanitary” matters, and dismisses the notion–despite myriad scientific data–that soda consumption is a health hazard.
The Bloomberg administration may appeal the decision to the New York Court of Appeals (the state’s highest court), which has the discretion to decline hearing the appeal. Regardless, the momentum behind the regulation has been nearly killed by these decisions. Businesses like Dunkin’ Donuts were prepared to comply, and I have no doubt that the rule could have been smoothly implemented. With Bloomberg’s term almost expiring and his potential successors lukewarm, if not hostile, to the rule, the chance of this innovative approach to fighting obesity and dental decay actually taking effect now appears slim.
Glad to see this is continuing. I attended the inaugural conference at Marquette in Milwaukee last September and had a great experience:
Chapman University School of Law will be hosting the 2nd Annual Local Government Law Works-in-Progress Conference on Friday, October 25, 2013 and Saturday, October 26, 2013. A formal call for papers will follow during the summer. Registration will take place in late August or early September, and the deadline for papers and abstracts will be in late September or early October. The conference will provide an opportunity for local government law scholars to present works-in-progress and receive feedback from colleagues. Questions should be directed to Kenneth Stahl at email@example.com.
I hope I can make it to beautiful Orange, Cal., in late October and you can too! (FYI, for those with small children, it’s very close to Disneyland.)
In a decision rendered on Monday, May 6, 2013, the California Supreme Court held that the state’s Compassionate Use Act and its Medical Marijuana Program did not preempt a city’s authority to make land-use decisions regarding medical marijuana shops. Interesting reading for those of us interested in state-local preemption or land use!
Here’s an interesting one: the Bloomberg administration apparently could not get the city council to pass the taxi cab reform legislation it desired, so it went straight to the state legislature to pass the law implementing its proposed reforms. The legislation was then challenged as an unconstitutional regulation of “local” affairs under the New York Constitution’s Home Rule clause, in part because the New York City Council never sent a “home rule message” – a request that the state legislature pass a law regarding a local matter – to the state legislature. Somewhat ironically, the city law department argued that the state law was not an unconstitutional infringement on local power, whereas the opponents of the law (the taxicab industry and others) argued that it was. Judge Arthur F. Engoron, of the New York Supreme Court, in a colorful opinion, invalidated the law.
Marquette University Law School is pleased to announce that it will host the first annual Local Government Law Works-in-Progress Conference on Friday, September 21, 2012 (possibly Saturday, September 22, 2012 as well, depending on interest). The conference will provide an opportunity for local government law scholars to present works-in-progress and receive feedback from their colleagues in the field.
Registration Deadline: Monday, August 13, 2012
Abstracts and Papers: Deadline Tuesday, September 4, 2012; submit papers to firstname.lastname@example.org
Matt Parlow, Associate Dean for Academic Affairs, Marquette University Law School
Ken Stahl, Associate Professor of Law, Chapman University School of Law
Rick Su, Associate Professor of Law, SUNY Buffalo Law School
Ambassador Hotel (ask for Marquette University Law School conference rate)
2308 W. Wisconsin Ave.
Milwaukee, WI 53233
For more information, please contact Matt Parlow at email@example.com
For those who may have missed it, my former professor Rick Hills posted a fascinating discussion on Prawfsblawg regarding New York City’s authority (or not) to impose congestion pricing. In highlighting the distinction between “legal conventional wisdom” and “legal reasoning,” Hills has hit on a recurring theme in local government law. Despite the detailed state “municipal codes,” many of the basic questions about local authority appear to be settled by “conventional wisdom” — “habits,” “slogans,” “half-truths” — rather than basic legal reasoning. I addressed one of these “slogans” — “the private law exception” — in a recent article. Perhaps the tension highlighted by Hills is just a run-of-the-mill clash between legal formalism and legal realism, but it does seem to play a particularly important role in local government law and, I would argue, warrants more focused study in this context.
As reported in The New York Times, The Wall Street Journal, and elsewhere, a trial court judge in Cuyahoga County, Ohio, invalidated the Ohio state legislature’s attempt to preempt Cleveland’s ban on trans fats, passed in 2011. The analysis in the judge’s brief order (quoted in the Journal article) is nonetheless complex due to the Ohio Constitution’s home-rule language. For another case analyzing this constitutional language but coming out the other way, see the Ohio Supreme Court’s opinion in Lima v. State, which upheld state preemption of city employment residency requirement ordinances.