Preemption of Local Efforts to Protect the Environment: Implications for Local Government Officials
By Paul S. Weiland
INTRODUCTION
Through the first half of the twentieth century, the development of environmental law and policy took place primarily at the local level, with some state involvement and minimal federal involvement. In the United States, environmental law and policy has been an integral aspect of public policy for over a century. Long before the term “environment” took on its modern meaning, government officials in urban areas across the United States dealt with public health and environmental issues such as sanitation, drinking water provision, and solid waste disposal. However, the post-World War II era set the stage for a dramatic change. Between 1950 and 1990, a major shift occurred as the role of state and federal governments in environmental protection efforts grew dramatically and as the role of local governments (particularly multi-purpose governments including cities, townships, and counties) decreased.
As higher levels of government became more active in the field of environmental law and policy during the 1960s and 1970s, their actions began to preempt local environmental law and policy with increased frequency. Preemption may be defined as the simultaneous expansion in power of a higher level of government and reduction in power of a lower level of government. for local government officials, understanding the doctrine of preemption has become increasingly important, as the scope of the doctrine has grown. In this article, it is not assumed that preemption is desirable or undesirable; instead, the focus is upon the implications of preemption for local government officials.
The article begins with a broad overview of preemption in its historical context. Following this overview, six examples of preemption of local government environmental protection efforts are analyzed--three instances of federal preemption and three of state preemption. Finally, the implications of preemption for local government officials are explored, with specific reference to the examples of preemption analyzed in the preceding sections. By understanding the doctrine of preemption and its implications, local government officials may be better able to formulate and implement environmental law and policy within the constraints imposed by our intergovernmental system.
Through the first half of the twentieth century, the development of environmental law and policy took place primarily at the local level, with some state involvement and minimal federal involvement. In the United States, environmental law and policy has been an integral aspect of public policy for over a century. Long before the term “environment” took on its modern meaning, government officials in urban areas across the United States dealt with public health and environmental issues such as sanitation, drinking water provision, and solid waste disposal. However, the post-World War II era set the stage for a dramatic change. Between 1950 and 1990, a major shift occurred as the role of state and federal governments in environmental protection efforts grew dramatically and as the role of local governments (particularly multi-purpose governments including cities, townships, and counties) decreased.
As higher levels of government became more active in the field of environmental law and policy during the 1960s and 1970s, their actions began to preempt local environmental law and policy with increased frequency. Preemption may be defined as the simultaneous expansion in power of a higher level of government and reduction in power of a lower level of government. for local government officials, understanding the doctrine of preemption has become increasingly important, as the scope of the doctrine has grown. In this article, it is not assumed that preemption is desirable or undesirable; instead, the focus is upon the implications of preemption for local government officials.
The article begins with a broad overview of preemption in its historical context. Following this overview, six examples of preemption of local government environmental protection efforts are analyzed--three instances of federal preemption and three of state preemption. Finally, the implications of preemption for local government officials are explored, with specific reference to the examples of preemption analyzed in the preceding sections. By understanding the doctrine of preemption and its implications, local government officials may be better able to formulate and implement environmental law and policy within the constraints imposed by our intergovernmental system.