Preemption Doctrine
(from Maine Townsman, "Legal Notes," June 1991)
by Ellerbe P. Cole, MMA Legal Services

This Maine Municipal Association publication is presented for "Classroom Use Only."  Its intended use is to stimulate and aid in discussion and role playing within a classroom setting.

Question: I read in the newspaper that the Maine Low-Level Radioactive Waste Authority is taking a couple of towns to court over their local ordinances excluding radioactive waste facilities from their towns. Don't towns have the right to do this?

Answer: Maine's Low-Level Radioactive Waste Authority has sued the towns of New Vineyard and Industry to have their local ordinances barring or otherwise limiting exploration and siting of radwaste storage facilities declared "preempted" under 38 MRSA Sec. 1501 et seq [Repealed and replaced by 38 M.R.S.A. 1497.], the Act which created the Authority. The Commission's request for a declaratory judgment and injunctive relief is pending in the Superior Court of Kennebec County [Case dismissed by parties; court did not reach preemption issue.].

The New Vineyard ordinance, enacted in 1991, bans testing or drilling pertaining to the siting of a high-level or low-level nuclear waste repository within the town, and bans entirely from the town radioactive waste materials as defined by state law. However, exceptions both to testing or drilling for siting and the waste itself can be obtained by a simple majority vote of the people. Industry's ordinance is much older. Adopted in 1983, it forbids the storage or disposal of radioactive waste materials within the town.

The state law, enacted in response to a 1980 federal law placing on the states the responsibility of arranging for disposal of low-level radioactive waste generated within their borders, appears to contemplate that the Authority would do testing and drilling in order to identify potential sites within the state, and would at some point select one or more sites, which would then be subject to a popular referendum requiring a 60% favorable vote for passage, in each town in which a site were proposed to be located. The argument of the Authority is that its ability to do the job the legislature contemplated is frustrated by these local enactments, and that they thus must be declared preempted by the state law. It is reasonable to believe that a decision will be rendered fairly quickly.

Question: So what is "preemption"?

Answer: Under the U.S. Constitution, legislative powers are allocated to the Congress and to state legislatures. Under the Maine Constitution, legislative powers are allocated to the State Legislature and to Maine municipalities. Sometimes, conflict occurs in the exercise of legislative powers. Ordinarily, in cases of conflicting legislation, the law of the lower or lesser body can not stand.

Where a constitution itself commits a particular subject matter wholly and exclusively to one body, the issue is clear. For example, states can not make treaties with foreign nations because that power is reserved exclusively to the United States under the U.S. Constitution. It follows from this that municipalities can not do so, either, because a state can not delegate or share what it does not have.

Most often conflict arises in the broad area of shared or concurrent powers. "Preemption" is the word used to characterize the displacement by the act of a superior legislative body of the power of a political division or subdivision to legislate in a given area or in a particular way. A finding of preemption means that the preempted act will ordinarily be void to the extent necessary to remove the conflict or inconsistency between the acts of the two powers concerned. Preemption is a question of law determined by a court on a case-by-case basis. Thus there is no fixed rule or yardstick for determining whether preemption has occurred. Rather, in all cases, the search of the court is to discover the intent of the legislature of the superior power.

From a municipal perspective, obviously the instances of preemption of concern are where

(1) a Federal statute or agency regulation preempts a municipal ordinance, or

(2) a state law or agency regulation preempts a municipal ordinance.

The issue in both is fundamentally the same: has the superior legislative body shown an intent to limit or preclude legislation in the same area by political subdivisions? So, too, the inquiry in both cases is in essence the same; a determination whether conflict or inconsistency indeed exists, and a determination, by a search of the legislative history of the superior legislative body, of the intent of that body in enacting the law. Such a search might look at things like legislative debates but more commonly it focuses on the statute itself and inspects closely such things as a preamble, a statement of policy or intent, or legislative findings or determinations.

Federal preemption doctrine proceeds from the Supremacy Clause of the U.S. Constitution, which provides that the law of the United States "shall be the supreme Law of the Land..." U.S. Const. art. VI, cl. 2. Thus, in the event of conflict, the Federal law will prevail.

In cases involving conflict between State law and municipal ordinances in Maine, the home rule provision of Maine's Constitution and the home rule statute bear on the issue of preemption. Accordingly, some discussion is appropriate.

The Maine Constitution provides (Art. VIII, Pt. 2, Sec. 1) that "The inhabitants of any municipality shall have the power to alter and amend their charters on all matters, not prohibited by Constitution or general law which are local and municipal in character. The Legislature shall prescribe the procedure by which the municipality may so act."

The implementing statute (30-A MRSA Sec. 3001, formerly 30 MRSA Sec. 1917) provides that "Any municipality may, by the adoption, amendment, or repeal of ordinances or bylaws, exercise any power or function which the Legislature has the power to confer upon it, which is not denied either expressly or by clear implication, and exercise any power or function granted to the municipality by the constitution, general law, or charter." 30-A MRSA Sec. 3001(1).

As has been said many times, the adoption of home rule in Maine reversed what was known as the "Dillon Rule," under which municipalities had only such powers as were expressly granted to them. Under home rule, municipalities can exercise any power not expressly or by clear implication withheld from them. Home rule and the former Dillon Rule define only the relations between the state and municipalities, not the relation between the Federal government and municipalities. But look again at the statute quoted above: municipalities have only the power to "exercise any power or function" to the extent that the Legislature has the power to confer such power upon them.

In Maine, home rule doctrine is rounded out by three subsections of 30-A MRSA Section 3001 in addition to the one quoted above. The statute also provides that the ordinance power accorded to municipalities, being necessary for the welfare of the municipalities and their inhabitants, is to be liberally construed to effect its purposes. A rule of liberal construction favors the upholding of ordinances against attacks as being violative of home rule powers. The statute also declares that there is a rebuttable presumption that any ordinance enacted under Section 3001 is a valid exercise of a municipality's home rule authority. This has the effect of placing the burden of proof of a violation of home rule squarely on the shoulders of the person asserting the violation. Finally (for this discussion), the statute provides that in order for a court to find that the Legislature has implicitly denied a power otherwise granted to municipalities under home rule it must find that the ordinance in question would "frustrate the purpose" of a State law.

This last provision merits special comment. A requirement, for implicit overrule, that an ordinance be found to frustrate the purpose of a State law requires a greater showing than mere conflict or inconsistency. For example, a municipality's minimum lot size law may call (and many do) for a size larger than those required under the State's septic waste laws. Such local laws are plainly inconsistent with the State one. But do they frustrate the purpose of the State law? Surely not. For another example, suppose the State creates a civil penalty for the violation of a law, but is silent on the question of municipal enforcement or penalties that a local ordinance imposes a far greater civil penalty for the same violation as set out in the ordinance. Should a civil defendant have to pay both the State and the local penalties? Is the State purpose frustrated by the separate but potentially additional penalty?

In the past dozen years, Maine's highest court has addressed the question of preemption in a series of six cases. In addition, the Court of the Federal District of Maine has considered one preemption case.

Here is a summary of those cases.

In Begin v. Town of Sabattus, 409 A.2d 1269 (Me. 1979), the Court upheld against preemption arguments (but struck down on other grounds) an ordinance limiting to four the number of construction permits which could be issued each year per park developer and per mobile home park. The Court found that despite a partial repeal of the State Subdivision Law's provision dealing with municipal review and regulation, sufficient authority remained in that statute and in the Home Rule statute to permit municipalities to implement slow-growth limitations. (But see 30-A MRSA Sec. 4356, the moratorium law: some question has arisen whether slow growth laws remain permissible since enactment of this statute.)

In Schwanda v. Bonney, 418 A.2d 163 (Me. 1980), the Court held that the Town of Freeport was preempted from adding to the "good moral character" requirement of state law for the issuance of concealed weapons permits. The Court found that the state licensing law has statewide application and does not involve "matters ... which are local and municipal in character," and that local power to add to the regulatory requirements was denied to municipalities by clear implication from the law and legislative history. 418 A.2d 167. (And see now 25 MRSA Sec.2011: "The State intends to occupy and preempt the entire field of legislation concerning the regulation of firearms, components, ammunition and supplies." The only room left open to municipalities under this statute (subsection 3) is a local ordinance duplicating, with the exception of the civil penalty provision, an applicable state law, and regulation of the discharge of firearms within the municipality.)

In Ullis v. Town of Boothbay Harbor, 459 A.2d 153 (Me. 1983), a similar result was reached with respect to liquor regulation In a later opinion, the Court characterized both Schwanda and Ullis as involving "comprehensive statewide schemes to exercise the police power for regulating important matters of public safety. Tisei v. Town of Ogunquit, 491 A.2d 564 (Me. 1985).

Tisei itself did not involve such a comprehensive, statewide scheme, but was Sabattus revisited In Tisei, the Court upheld against preemption challenge a slow-growth ordinance which limited hook-up access to the local sewer district's system. The Court found nothing in the legislative charter of the local district which barred the town from posing restrictions on access "as a legitimate regulation of a public utility and as one tool in the Town's efforts to control its growth and development." 491 A.2d at 570.

In Midcoast Disposal, Inc. v. Town of Union, 537 A.2d 1149 (Me. 1988), the Court struck down parts of two local ordinances which, taken together, effectively barred Midcoast and other private solid waste disposal companies from locating and operating within the town disposal facilities which would receive solid waste generated outside of town. The Court found that the allocations of authority contained in the Maine Hazardous Waste, Septage and Solid Waste Management Act as it stood at the time of enactment of the ordinances manifested a clear legislative intention to remove any authority a municipality might have had to prohibit such operations.

The next case decided had a national dimension, as it implicated a Federal statute, the Federal Insecticide, Fungicide, and Rodenticide Act of 1975 ("FIFRA"), as well as two state statutes, the Maine Pesticide Control Act and the Maine Board of Pesticides Control Act. In Central Maine Power Company v. Town of Lebanon, 571 A.2d 1189 (Me. 1990), the Court upheld Lebanon's ordinance, which banned the non-agricultural use of pesticides in the town without advance approval from the voters of the town (at a town meeting, the voters had withheld such approval from CMP, which wished to apply herbicides to a transmission line corridor it owned in the town in order to hold down the growth of vegetation).

The case is valuable for what it teaches about Federal preemption doctrine. The Court acknowledged that it is through the Supremacy Clause "that federal law preempts conflicting state law."

The Court then noted that Federal preemption occurs in any of the following circumstances:

(1) when Congress, in enacting a federal statute, expresses a clear intent to preempt state law,

(2) when there is an outright or actual conflict between federal and state law,

(3) where compliance with both federal and state law is in effect physically impossible,

(4) where there is implicit in federal law a barrier to state regulation,

(5) where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the states to supplement federal law, or

(6) where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress.

Although these are not known to have been expressly adopted by Maine's highest court as governing state-local preemption issues, they are a fair summary of the most commonly imaginable circumstances giving rise to preemption. In Maine, however, they must be examined in the context of Maine home rule.

What conclusions or lessons can be drawn from the cases to date?

First, we have a good home rule statute here in Maine.

Second, our courts' understanding of home rule has grown over the years.

Third, we can see from Schwanda and Ullis that if an act of the Legislature directs the State's police power at an important area of public safety or health, and if the act appears to be a comprehensive scheme for regulating its subject matter. It probably is and thus will likely be found to preempt a local requirement which is so inconsistent with it that it would frustrate an objective of the scheme, or its actual operation. Thus, one should not tread lightly into an area of apparent comprehensive regulation.

Fourth, and apart from such apparently comprehensive schemes, we can see the importance of engaging counsel to conduct a legislative history search and review (both of federal and of state laws) and formulating a recommendation on whether to walk down a given regulatory road, or to turn aside, before enacting a regulatory ordinance or a ban, at least in an area not exclusively local and municipal. The key inquiries should be whether there is express preemption, or an express sharing. If there is no express preemption, the issues should be whether the local exercise of ordinance power which is proposed fits within whatever limitations or guidance the Congress or the state has provided for the exercise of shared power, and, if the statute is not express about preemption or shared power, whether the local ordinance would frustrate the state legislative scheme or purpose. (Mere conflict with a Federal scheme appears to be enough to do in a local ordinance.)

Fifth, awareness of preemption as a potential issue may aid in framing municipal ordinances carefully so as to avoid, eliminate, or minimize the potential for a litigator to inflict damage on the ordinance.

Sixth, ordinances should always include a "severability" clause, as this will help to ensure that the ordinance will fail, if at all, only in part, and not in its entirety.