When an unexpected amendment that would remove city and county decision-making authority in fossil fuel infrastructure popped up in a House bill last week, it became one of the latest examples of state legislatures trying to use preemptions to limit the power of local authorities.
Initially, HB 2246, introduced in January by Rep. Kevin Vaughan of Collierville, a Republican, directed the Department of Economic and Community Development to study the current infrastructure of utilities operating in the state, including pipelines, to determine the improvements needed.
The last-minute amendment — which has not yet been publicly posted — stunned environmental justice workers, but, they say, they weren’t surprised by a legislative move that supports industry. Activists from the Sierra Club, Memphis Community Against Pollution and Protect Our Aquifer all drove to Nashville to testify before the House and Senate commerce committees before the vote was delayed until Tuesday.
The latest version of the amendment says a county or other form of local government “shall not, arising from or as a result of a local action, restrict, prohibit, or otherwise impair the development and implementation of the types or sources of energy that may be used, delivered, converted, or supplied” by gas companies.
It also says local action by local governments “is preempted and void” if the local action acts as a “prohibition or impairment of construction”; among the factors that would define prohibition are a “moratorium on the construction or expansion of energy infrastructure.”
“It’s taking an innocuous bill and swapping it for this terrible piece of legislation that is just a total waste,” said MCAP co-founder Justin J. Pearson. “It can have detrimental effects on our ability to protect our communities, protect our land, protect our water in Memphis’ aquifer.”
Pearson and other activists see the bill as a threat to the work that residents in Southwest Memphis did for nearly two years in organizing against the Byhalia Connection Pipeline – a joint venture between Plains All American and Valero Energy Corporation – that would have passed through several Black Memphis neighborhoods, including Westwood, Whitehaven and Boxtown. Developers dropped the project last summer. But Pearson says he knew that wouldn’t be the end.
“We are in the fight for environmental justice and for social justice in perpetuity,” he said. “The cancellation by the Byhalia Pipeline was great, but it was a recognition that there’s something going wrong in legislation, gaps that exist. We anticipated the pipeline companies would try and do something here in Nashville because the local community has resisted, but did not anticipate the legislation would be completely antithetical to conservative principles or ideals.”
Preemption is when the state legislature passes a law making it impossible for the local government to implement a local policy. For example, a majority of the Memphis City Council opposes lifting residency restrictions that would require Memphis police officers to live within county limits. The council declined to put the measure on a referendum and overruled Mayor Jim Strickland’s veto. Strickland appealed to the state legislature; the House drafted an amendment that said the residency law would apply only to police departments with 1,600 or more officers. Memphis has the only police department with that many officers. However, the Senate version, which would apply to nearly all parts of the state, is heading to the governor for a signature. The state also used preemption to thwart an effort in Memphis to rein in neglectful landlords.
Other states across the South also commonly use it. In the last year, Georgia preempted local police departments’ budget reductions and Florida banned municipalities from regulating firearms.
According to an Economic Policy Institute report, preemption is a policy tactic more prevalent in the South and rooted in racist policymaking that prevents people of color and low-income families from expressing their needs. It’s been particularly effective in its use against workers, stopping a raise in the minimum wage in Birmingham; paid sick leave in Dallas; and fair scheduling for retail and foodservice workers in Atlanta.
“It’s a concerning trend because local leaders are closest to the people,” said Southern Environmental Law Center senior attorney George Nolan, who supports MCAP and Protect Our Aquifer. “Land use regulation typically happens at the local level. So, zoning laws are passed by people who live in the community and are directly accountable to constituents who are their neighbors. So for state government to pass laws over us, frankly, I think it’s overreaching.”
For his part, Vaughan has repeatedly stated that the bill does not prohibit general zoning authority on the local level but rather allows companies to claim exemptions without dealing with a “patchwork of regulations” in situations “bigger than just a community.”
When asked by MLK50 if he was prioritizing the economy over the health of people, Vaughan responded in a written statement that “this bill contemplates where we are going from here rather than addressing the past.”
In fact, if passed, the bill can be retroactively applied to local ordinances such as the Shelby County pipeline setback requirements.
Ashli Blow, a Memphis native, is a freelance writer who covers the environment and policy, and a graduate student at the University of Washington, studying climate policy.
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