| Local Control -- Dillon States cannot take away powers specifically granted to localities by federal law. And 'Dillon's Rule" specifically recognizes that it is subordinate to powers granted to localities in express words by federal law THE STATE CANNOT TAKE AWAY POWERS SPECIFICALLY GRANTED BY FEDERAL LAW. Dillon’s Rule specifically recognizes that it is subordinate to powers granted to localities in express words BY FEDERAL LAW: ATTORNEY TOM LINZEY, ET AL http://www.celdf.org/HomeRule/WhatisHomeRule/tabid/114/Default.aspx The first part of Dillon’s Rule states that local governments have only three types of powers:
stringent than federal sludge rules . . . ! ]
states (cities, towns, counties, townships, parishes, etc.) to enact local sludge rules more stringent than federal sludge regulations.) I have emails dated April 2008 and September, 2008, from EPA Sludge Administrator Rick Stevens acknowledging federal law authorizes localities to enact more stringent sludge rules than federal sludge rules.
because state law impedes the achievement of a federal objective, and preemption because federal law occupies the field.} and those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. “ o Conflicts preemption is where it is impossible to comply with both the federal statute and the state or local law. In this situation, the federal statute must be followed. It is, however, appropriate to have two laws, one federal and one state, that differ. The federal law, in this case, may be a minimum standard, while the state enacts a law to be more strict. State law, therefore, would not be preempted. Preemption would only occur if the federal and state laws were mutually exclusive. o o The second type of implied preemption is preemption because state law impedes the achievement of a federal objective. This type of preemption occurs when a state or local law interferes with a goal or objective Congress was trying to attain with a federal statute. The purpose of each law must be determined and compared to each other. If both laws are trying to achieve the same goal, federal law will preempt the state or local regulation. Obviously, Virginia and Pennsylvania laws impede the achievement of a clearly stated federal objective – local control over use or disposal of sludge. Federal sludge rules clearly grant authority to localities to enact sludge rules more stringent than federal rules. Federal law and Virginia and Pennsylvania law are mutually exclusive where Virginia and Pennsylvania laws attempt to rescind the local control over sludge which is specifically granted by federal laws. THE COURTS IN VIRGINIA AND ELSEWHERE HAVE REPEATEDLY UPHELD THE LEGAL CONCEPT THAT FEDERAL LAW TRUMPS STATE LAWS – SEE ACCOMPANYING FILE . . . Epstein said the supremacy clause of the U.S. Constitution "basically says the lowliest federal regulation, if valid, trumps an inconsistent state law no matter how lofty." http://research.lawyers.com/news-headline/Feds-seek-to-trump-states-inquiry-into-phone-records-l:410868657.html see page 3 of second file . . . Sent: Friday, December 05, 2008 8:16 PM Subject: To Atty. Jesse Richardson, Virginia Tech - local control over landspreading of sewage sludge Dear Mr. Richardson, This is in response to your letter to editor and Dillon's Rule article you referenced. I respectfully request that you take the time to read the information I am submitting wherein I rebut the concept that states can use laws enacted under the aegis of "Dillon's Rule" to preempt, supercede and abrogate rights specifically granted to communities under federal laws, to enact local sludge rules more stringent than federal sludge rules. Virginia case law buttresses my position: Bristol v. Earley 145 F. Supp. 2d 741 (2001). see page 3 of second file I have attached - Attorney Denis O'Brien . . . http://www.virginiabiosolids.org/July07.htm REVERSE PREEMPTION "This is a fairly complex opinion, but it is brilliant. Jones slices right through all of the state's arguments and cuts the legs right our from under them, leaving little doubt that if a federal law gives a locality the right to do something, the state cannot take that right away. So, applying Jones' opinion to BS, (biosolids) if the CWA gives the county the right to determine how BS is to be handled within the county's boundaries, then the state can't step in and take that right away. And my guess -- which is, I admit, not 100% reliable -- is that if you put the sludge issue in front of Jones as a reverse preemption case, he'd rule the same way again. This would be huge -- a federal district court judge in effect over- ruling the VA Supreme Court. But he wouldn't be actually over-ruling the Supreme Court because Hassell never mentioned the relationship between the CWA and the Dillon Rule. “ VIRGINIA - COURT CASE 2001 - FEDERAL LAW TRUMPS STATE LAW http://www.baller.com/pdfs/bristol-dct.pdf 145 F.Supp.2d 741 (Cite as: 145 F.Supp.2d 741) United States District Court, W.D. Virginia, Abingdon Division. http://www.memun.org/SchoolsProject/Resources/Ordinance/ordinance_preemption.htm 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. |