During the 2021 regular session, West Virginia legislators passed more than a half-dozen bills restricting the ability of municipalities to pass ordinances, including a bill that, as passed in its final version, will prohibit cities from restricting use of plastic bags, straws and utensils but could have gone far beyond in sharply restricting cities’ abilities to pass ordinances.
The trend of imposing preemptive laws on cities is nothing new, but West Virginia Municipal League Executive Director Travis Blosser said he believes support for preemptive municipal legislation intensified this session.
“I feel like, this legislative session, it has been more apparent than other sessions,” he said Tuesday. “There’s been a shift in ideology that local control isn’t what we want anymore.”
While the movement is growing in intensity in the West Virginia Legislature, Blosser said, municipal preemption is occurring in legislative bodies nationally.
“It’s even happening in states like California and New York,” he said. “My feeling is, preemption is a bipartisan phenomenon.”
A Pew Stateline article by Elaine S. Povich published last week seems to confirm that preemption legislation has accelerated nationally in 2021, influenced, in part, by restrictions imposed by some cities during the pandemic.
“The pandemic provoked conflicts between state and local governments — particularly in cities run by Democrats and states controlled by Republicans — when it came to COVID-19 rules, such as mask ordinances and regulations on when businesses could open and at what capacity,” Povich writes.
“Name a political issue, there’s probably a dozen preemption cases around the country,” said David Luchs, a team leader at Ballotpedia, which tracks 11 categories of preemption fights. He said Ballotpedia’s categories “run the gamut from really hot-button political issues, like firearms regulations, to something hopelessly dull and dreary, like ride-sharing or plastic bags. Some of the highest profile preemption cases will be around immigration and firearms,” the article notes.
Blosser called West Virginia’s version of legislation banning cities from restricting plastic bags, House Bill 2500, a “solution looking for a problem,” since no cities in the state have considered restricting single-use plastics.
However, he noted that there were amendments to the bill that could have significant implications, including amendments that would have barred enacting wage-hour ordinances, and would have required repeal of nondiscrimination ordinances stricter than state law.
In 2014, the Legislature passed a law preventing cities from having gun safety ordinances stricter than state law, forcing Charleston and other cities to repeal restrictions on handgun sales. This session, the Second Amendment Preservation Act (House Bill 2694) will, among other restrictions, bar local police from enforcing “red flag” laws — court orders temporarily removing firearms from people when family members show they pose a threat to themselves or others.
According to Povich, data compiled in July 2020 by the Center for Public Health Law Research at Temple University and the National League of Cities showed that the most extensive preemption laws were related to firearms (46 states), property tax rate limits (37 states), tax levy limits (36 states), rent control (31 states) and paid leave (23 states).
Povich’s article concludes — and Blosser concurs — that much of the preemptive legislation is driven by model legislation provided by national lobbying organizations: “Chief among them is the conservative American Legislative Exchange Council, known as ALEC, which offers such legislation on its website.”
“ALEC gives them the carbon-copy statutes,” Blosser said.
He said ALEC was pro-local control initially, but shifted over time, “Probably because it’s easier to control 50 state legislatures than thousands of city councils.”
“I think they figured out, ‘We can just preempt everybody from doing things,’ ” Blosser said.
Blosser said he believes local control and home rule are critical to providing a quality of life that attracts people to cities.
“Instead of focusing on creating places where people want to work, live and raise a family, we concentrated on a rule that refutes any ban on single-use plastics,” he said of the legislative session.
Blosser said he believes legislators’ points of view tend to change over time.
“They get under the dome, and it’s probably true in every state capitol, and they start to feel like everything should be the way they say it should be,” he said, adding, “Local control is what should be happening, but you’ve got a whole segment of legislators that believe differently.”