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Our Legislature has been employing a new strategy when it comes to promoting plastics and petrochemicals, and it is just as problematic. That problematic strategy is known as “preemption.”
Preemption is the legal concept that a higher-level governmental body can prevent or overrule the actions of lower-level governmental bodies. For example, the federal government can pass laws or regulations that stop a state from passing different laws on a specific issue , or that override laws previously passed by a state on an issue. Similarly, a state legislature can pass laws that stop or override municipalities in that state from enacting laws or override laws that the municipality has previously passed.
Preemption is not, in the abstract, necessarily a bad thing. There are reasons why a state might want to have a whole-of-state approach to a certain issue, rather than having piecemeal regulation by different municipalities across the state.
For example, the state may want to have - and indeed does have! - uniform rules on how drivers’ licenses are issued because there is a reasonable interest in having statewide uniformity in requirements for testing and licensing procedures, rather than having each town or city design its own rules for allowing drivers on the roads.
Here, however, the Legislature is not trying to make uniform rules across the Commonwealth for safety reasons, or to lessen the burden on municipalities, or to benefit a statewide goal. Here, the legislature is trying to stop municipalities from taking environmentally-beneficial actions in order to protect the fossil fuel and petrochemical industries.
The first example is the Legislature’s action to prevent municipalities from banning single-use plastic bags.
In June of 2019, the Pennsylvania Legislature passed a fiscal code amendment (SB712) that included, as an add-on provision unconnected to the rest of the fiscal code, a prohibition which states: the “General Assembly or a local governmental body or agency may not enact a law, rule, regulation or ordinance imposing a tax on or relating to the use, disposition, sale, prohibition or restriction of single-use plastics, reusable plastics, auxiliary containers, wrappings, or polystyrene containers” until a report on the economic and environmental impact of plastics on the Commonwealth was submitted.
This report was submitted in June 2020. Around that same time, in the middle of the Covid-19 pandemic, the Legislature again used the fiscal code to effectively delay implementation of any current plastic bag bans at least until July 1, 2021, or six months after the COVID-19 state of emergency is lifted.
Why would the Legislature do this? In order to promote uniform plastics laws across the Commonwealth? This cannot be the case, because there are no other statewide plastics laws in Pennsylvania. In fact, the Legislature here is not acting to promote positive statewide regulation at all, but instead to promote the petrochemical industry.
The state’s own report on “The Economic Impacts of Regulation of Single Use Plastics” is very clear: “The regulation of single-use plastics could also have indirect implications for the prospective clustering of petrochemical manufacturing facilities in the state. Pennsylvania is the second-largest producer of natural gas in the U.S. and the state’s capacity for natural gas production and proximity to major markets make it an attractive location for new petrochemical facilities...Industry representatives noted that single-use plastics regulation could make the state a less viable option for prospective petrochemical and plastics manufacturers:” Economic Impact Report at page 33, 35.
Municipalities, of course, have taken a different view. Municipalities across the state have considered banning or otherwise regulating single-use plastics. The City of Philadelphia, Narbeth, and West Chester have passed ordinances doing so. Other municipalities, such as Ferguson Township in Centre County, the City of Bethlehem, and the City of Pittsburgh have actively considered doing so. These local government entities have pointed to plastic bag litter in their borders and clogging their waterways as reasons to pass these ordinances.
The second example is the Legislature’s ongoing attempt to prevent municipalities from restricting the types of energy used in buildings. Again, why would the legislature do this? To promote a uniform energy policy across the state? No, it is clear that the Legislature wants to promote the use of fracked gas.
The legislature previously tried, through Act 13 in 2013, to specifically eliminate the ability of municipalities to regulate the development of oil and gas resources. The PA State Supreme Court struck down this provision as a violation of the Environmental Rights Amendment of the Pennsylvania Constitution.
The Legislature is currently trying to enact very similar legislation targeted at utility services rather than gas development companies, but the effect would be the same, and by focusing only on utility services the proposed legislation would give preferential treatment to the polluting gas industry.
In the City of Philadelphia, the Office of Sustainability is conducting a study about how the gas utility, Philadelphia Gas Works, can transition away from being an entirely gas-driven utility, in line with Mayor Jim Kenney's commitment that Philadelphia will achieve carbon neutrality by 2050 in alignment with the Paris Agreement. The Legislature’s preemption attempt here would stop this work in Philadelphia in its tracks.
To be fair, the Pennsylvania Legislature is not alone in attempting to stop the municipalities in its state from making positive environmental changes. This is a strategy that national anti-regulatory groups are pushing to state legislatures nationwide to prevent local governments from taking the initiative to solve their own problems.
The real problem with this sort of preemption is that it doesn’t solve any problems - it just puts up roadblocks to creating meaningful policy change.
The Legislature is not pushing solutions or enacting statewide policies; instead, it is just telling municipalities that they are prevented from the sort of creative problem solving that the American system of federalism is supposed to promote. When it comes to the problem of plastics, we need real solutions, not roadblocks.