A Quick Primer on Pre-emption

Posted By Cliff Tuttle | January 13, 2009

Posted by Cliff Tuttle

As discussed in PLBT a few days ago, our Commonwealth Court held that the Oil and Gas Act, a state statute, pre-empted local zoning ordinances that attempted to regulate the placement of gas wells. But, due to somewhat different statutory language, the Surface Mining Conservation Act (SMCRA), a very similar statute, did not pre-empt an attempt through zoning to regulate the location of a surface coal mine.

The court concluded that the legislature intended for pre-emption to occur in one case and not the other. I criticized the SMCRA case quite severely. It is absurd to argue that the legislature intended to authorize local community zoning boards to overrule state coal mining regulation on issues involving coal mine safety and development.

A federal case involving pre-emption of local ordinances came up recently that illustrates the point quite well. The City of Albuquerque, NM enacted a so-called Green Building Code. The Code called for new and remodeled buildings to meet higher standards for energy efficiency. The ordinance was attacked by trade groups representing the heating and air-conditioning and water heating equipment industries.

The judge wrote that, when the ordinance was enacted, the City lawmakers were unaware that federal statutes regulated the subject and that the statutes contained clear language expressing the intention that federal law pre-empt the field.

Here is a post in the Law of the Land Blog on the subjects with links to in-depth discussion of legal issues involving Green Development.

CLT

Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

Subscribe to our feed