Legal, Plastic Pollution, Bag Bans, Expanded Polystyrene Foam
June 09 2017

State Preemption: Taking Away “Home Rule” on Plastic Pollution

by Angela Howe

The threat of removal of local control is looming large in the United States, and it is very easy to see in the context of plastic pollution battles. Just last week, the Governor of the State of Minnesota signed an omnibus budget bill that included a preemption provision to strip away the right of local municipalities to pass single-use bag regulation.  This statewide bill passed just a day before the City of Minneapolis's bag ban was supposed to go into effect.  Reversing the local plastic pollution work of environmental advocates and undermining the efforts of the leaders of Minneapolis to protect the local environment. Governor Dayton did veto three omnibus bills containing the plastic bag preemption (Environment, Jobs and Energy, Taxes) and noted his disapproval of the bag ban preemption provision the week prior; however, the fourth attempt to sneak in the provision to the reworked Jobs and Energy Omnibus Bill (SF 1456) made it past the Governors desk and into the law books.

This is the sad story of statewide preemption, where already ten states have passed some sort of local plastic pollution preemption, including Arizona, Florida, Idaho, Indiana, Iowa, Michigan, Missouri, New York and Wisconsin in addition to Minnesota.  Some of these preemption measures cover bag bans, specifically, like Minnesota, and other state laws are more broad so as to take aim at any local regulation of "auxiliary containers" which could be interpreted to mean bags, foam foodware, and other single-use containers.

On the other hand, Texas, the Lone Star State, has fared quite well in its many statewide battles against plastic bag ban preemption.  In fact, there have been 5 attempts at the state legislature over the years to preempt local bag bans in Texas.  Senator Hill's preemption bill, SB 103, was staved off this year again. In fact, another bill, HB 3482 (Hinojosa), to preserve local options on single-use bag pollution made it further in the legislature.  However, neither bill progressed in Texas regular legislative session this year.  This means the existing 12 local plastic bag laws will stand in Texas and other localities still have the right to pass this type of environemtnal legislation.

Where local communities, like Minneapolis, have worked to protect the environmental health of their communities, their successful efforts should not be allowed to fall victim to these undemocratic measures that strip away rights of localities. As Minnesota group Eureka Recycling reports the state "representatives who brought this forward are not representing the people of Minnesota, but instead corporate interests who are so worried about our voice, they have kept the plastic bag preemption measure in a reworked omnibus bill after the Governor specifically mentioned his disapproval of the measure." 

As Surfrider Foundation advocates to keep our marine resources free of plastic pollution, not only must we keep a strong on-the-ground presence to continue to pass local plastics legislation, but we also must ensure that we have a presence and a voice at the statewide level to protect against efforts that threaten to silence local voices.  To combat preemption, we should oppose any state legislation that takes away the right of municipalities to improve their environment and continue to push for strong statewide legislation, like the recent passage of the California statewide bag ban.  Coastal advocates can educate their local, state and federal electeds at city council meetings and town halls about this worrisome trend of preemption. As Surfrider members, we must continue to protect our local beaches and our local rights!

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