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Pre-empting power of local governments is becoming standard hinders cities

AUSTIN, Texas – Darren Hodges, a Tea Party Republican and councilman of the windy West Texas city of Fort Stockton, is a fierce defender of his town’s decision to ban plastic bags. It was a local solution to a local problem and one, he says, city officials had a “God-given right” to make.

But the power of Fort Stockton and other cities to govern themselves is under attack in the state capital, Austin. The new Republican governor, Greg Abbott, has warned that several cities are undermining the business friendly “Texas model” with a patchwork of ill-conceived regulations. Conservative legislators, already angered by a ban on fracking that was enacted by popular vote in the town of Denton last fall, quickly followed up with a host of bills to curtail local power.

“The truth is, Texas is being California-ized, and you may not even be noticing it,” Abbott said in a speech at the Texas Public Policy Foundation, an influential conservative think tank, just before he took office last month. “Large cities that represent about 75 percent of the population in this state are doing this to us. Unchecked overregulation by cities will turn the Texas miracle into the California nightmare.”

His salvo caught Texas cities by surprise. But pre-empting the power of local governments is becoming a standard part of the legislative playbook in many states where Republicans who control statehouses are looking to block or overturn the actions of leaders, and even voters, in municipalities that are often more liberal.

So-called pre-emption laws, passed in states across the country, have banned cities from regulating landlords, building municipal broadband systems and raising the minimum wage. In the last two years, eight Republican-dominated states, most recently Alabama and Oklahoma, have prevented cities from enacting paid sick leave for workers. Already this year, bills introduced in six more states, including Michigan, Missouri and South Carolina, seek to do the same.

At least five states have pre-empted local regulation of e-cigarettes. And in New Mexico, the restaurant industry supports a modest increase to the minimum wage only if the state stops cities from mandating higher minimums.

Often these efforts are driven by industry, which finds it easier to wield influence in 50 capitols than in thousands of city halls, said Mark Pertschuk, the director of Grassroots Change, which opposes the pre-emption of public health measures.

The strategy was pioneered by tobacco companies 30 years ago to override local smoking bans. It was perfected by the National Rifle Association, which has succeeded in preventing local gun regulations in almost every state.

More recently, the restaurant industry is leading the fight to block municipalities from increasing the minimum wage or enacting paid sick leave ordinances in more than a dozen states, including Florida, Oklahoma and Louisiana.

“Businesses are operating in an already challenging regulatory environment,” said Scott DeFife, the head of government affairs for the National Restaurant Association. “The state legislature is the best place to determine wage and hour law. This is not the kind of policy that should be determined jurisdiction by jurisdiction.”

In Texas, many of the bills before the Legislature aim to prevent more cities from following Denton’s lead in banning hydraulic fracturing, or fracking.

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