Time to Bag Local Preemption

In the 1932 case New State Ice Co. v. Liebmann, U.S. Supreme Court Justice Louis Brandeis wrote that a “state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Through the years, this principle has been applied with state and local governments serving as “laboratories of democracy.”

Local governments are now the ultimate laboratory of democracy, advancing innovative and timely policies, specifically tailored to local circumstances and in response to local taxpayers. Unfortunately, such innovation sometimes causes special interests to go to the State Legislators and push back against such efforts, what we call state preemption.

For instance, the Governor recently received a bill from the State Legislature that would impose a statewide fee on single-use carryout bags provided to customers at retail checkout counters. The legislation (A3267/S-2600) also supersedes and preempts local ordinances that are being readied for adoption, and that are meant to address problems caused by nonreusable carriers. Essentially, if the Governor signs this bill into law, existing local ordinances will be grandfathered; but, as of the date of enactment, no further local regulations will be allowed.

On face value, the bill seems to address an environmental concern. Most environmental groups, however, oppose the bill in its current format and would prefer it go further. Many retailers favor the bill, as they prefer a statewide policy instead of local officials and citizens implementing policies based on local circumstances and preferences. But it has caught people’s attention, not because of preemption, but because it imposes a fivecent fee on plastic and paper bags at most supermarkets and stores in the state.

We appreciate and understand objections to the implementation of a fee, even if it is for a laudable public policy objective. But the greater concern should be the preemption of local initiatives in favor of a statewide, one size fits all approach. Local elected officials, who live in their own communities and are accountable to their voters, must be able to act in the community’s best interest without preemption from the State.

Already, a number of towns have taken positive action to encourage retailers and shoppers to better protect the environment by using more durable carriers. Many of these communities have worked with their local retailers to phase-in implementation or take other steps to assist in compliance. These policies have been put in place in a thoughtful, reasonable manner. While these existing ordinances are grandfathered by the proposal, there are others in the process of doing the same whose efforts will be undermined if A-3267 is signed into law. There is no environmental benefit in preempting local government actions. For these reasons, the League urges Governor Murphy veto A-3267.