What is Pennsylvania’s pesky preemption law?

Brooks Rainwater

Brooks Rainwater National League of Cities

There’s an ongoing battle in Pennsylvania politics between the state and local governments. The state legislature has made numerous efforts to control local municipalities’ ability to make their own rules regarding gun laws, single-use plastics and more. 

These statewide preemptions have angered local officials who say they’re trying to do what’s best for their communities. The issue came to the forefront recently when the General Assembly decided not to renew the preemption on single-use plastic bag bans, prompting cities like Philadelphia and Pittsburgh to begin approving and enforcing new bans. 

City & State reached out to Brooks Rainwater, senior executive and director of the Center for City Solutions at the National League of Cities, a nonpartisan advocacy group that supports local governments. Rainwater offered a breakdown of statewide preemptions and what they mean for Pennsylvania cities. These responses have been edited for length and clarity. 

From a policy standpoint, what is preemption and how prevalent is it becoming?

Preemption is a legal doctrine, aligning with the American federal system, that allows upper levels of government to restrict or prevent lower levels of government from self-directed determination of laws and public policy implementation. Preemptive measures instituted by state-level government taking away authority from local government has grown enormously in recent years as the discordant partisan politics that we see at the national level has seeped down to the state level. Furthermore, we see more preemption in places where political party differences between state and local policymakers are high.

What are the most common issues states use preemption to address?

The most common issues preempted by state governments are minimum wage and paid sick leave laws, firearms policy, short-term rentals and ride-hailing regulations, municipal broadband policy, local tax limitations and restrictions on rent control and other local housing policy tools. During COVID-19, this list decidedly grew as a host of states sought to prevent public health measures from being enforced via local mask mandates and closure orders. Preemption has gotten so bad in some states to the point where state legislators have sought to preempt highly local issues like city tree removal policies. And, in some states local officials can be held personally liable with fines and potential removal from office if they pass laws in opposition to those preempted at the state level. 

How does Pennsylvania compare to other states in terms of its preemption use?

In NLC’s 2018 analysis where we tested for seven key preemption policy areas, Pennsylvania ranked as number 11 for states that preempted their cities. In reviewing more recent preemption measures, Pennsylvania has been in line with a number of states that have sought to preempt localities on gun control measures, personal delivery devices, and other key issues.

How do preemptions on laws related to plastic bag bans and gun control affect local municipalities?

Preemptive measures take authority away from local officials representing the people in their communities. Mayors and council members are closest to the people that they govern, and as such, are more directly responsive to people’s wants and needs. When local laws are passed on plastic bag bans, gun control, or labor regulations, these policies are meant to support people. The goals are to create a more sustainable environment, protect public safety, or improve workers’ lives. These efforts should be applauded, not stymied by disconnected politicians at the state house seeking to push a partisan agenda protecting special interests.

How do you see preemption conflicts being decided between state and local governments?

State-level politicians are actively working to overturn the will of people in cities through preemption. As a result, the work of city leaders and the mandate of the people is undermined. Taking stock of the last few years, it is abundantly clear that the overall uptick in preemption laws and the general antagonism toward local control by disconnected state lawmakers must stop. Local control should be a shared value for Republicans and Democrats and the best interest of the public will be best served if state and local politicians of both parties work together in the interest of the people.