Preemption of Municipal Regulation: 'Who's in Charge Here, Anyway?'
Municipal regulations and ordinances in New Hampshire must pass two familiar tests to be enforceable. First, they must be authorized by a state law. Second, they have to be constitutional, meaning they don't violate either the United States Constitution or our New Hampshire Constitution. These two requirements get a lot of attention, but there is a third test. Even when it appears that one state statute has generally authorized municipal regulation of a subject, another state statute or federal law may "preempt" municipal regulation. The idea that the state or federal government prohibits towns and cities from regulating certain areas in this fashion comes as a surprise to many local officials.
Q. There is always a lot of talk about the "home rule" issue. Isn't that the main thing to worry about?
A. Well, no, although it is always the starting point for municipalities. The fundamental rule of municipal government in New Hampshire is that towns and cities get all of their authority to act from the state legislature. Girard v. Allenstown, 121 N.H. 268 (1981). This means that municipalities cannot rely on the absence of a prohibition, but, instead, must find a statute that specifically permits it (an "enabling statute").
Q. So if I find an enabling statute, and if I'm confident that the ordinance is constitutional, I'm set, right?
A. Not yet, because that subject area may be preempted to some extent by the state or federal government. Preemption occurs when one level of government claims regulation of a given field as its own and prohibits lower levels of government from regulating that field. Article VI of the United States Constitution says the federal constitution, laws and treaties are the "supreme law of the land" and are superior to conflicting provisions of state laws or constitutions. This is commonly known as the "supremacy clause" and it means that, if state law conflicts with federal law, the federal law wins.
Most preemption issues involving municipal ordinances, however, involve state law. State law preempts local law when there is an actual conflict between the local and state regulation. The statute may expressly prohibit municipal regulation of the same subject matter. For example, RSA 159:26, I states that, "[e]xcept as otherwise specifically provided by statute, no ordinance or regulation of a political subdivision may regulate the sale, purchase, ownership, use, possession, transportation, licensing, permitting, taxation, or other matter pertaining to firearms, firearms components, ammunition, or firearms supplies in the state." Even without an express statement of preemption, a conflict also exists when a local ordinance frustrates the state's purpose. Blagbrough Family Trust v. Wilton, 153 N.H. 234 (2006). When the state has regulated an area of the law in such a detailed and comprehensive manner that it implicitly intends to exclude municipal regulation entirely, courts will infer that the entire subject matter is preempted. In those cases, a municipality cannot also regulate that subject. Lyndeborough v. Boisvert Properties, 150 N.H. 824 (2004).
For example, in the past 20 years, the New Hampshire Supreme Court has found that the state has completely preempted local regulation in the areas of renewable energy facilities with a capacity greater than 30 megawatts, election law, liquor licensing and indoor smoking.
Q. Are you saying that any time the state regulates something, municipalities can't?
A. No; quite often, the same subject area can be regulated by both the state and local governments. A great example is wetlands regulation. The state regulates dredge and fill in wetlands under RSA Chapter 482-A, but towns and cities are allowed to regulate wetlands more restrictively than the state. Anderson v. Motorsports Holdings, LLC, 155 N.H. 491 (2007); Cherry v. Hampton Falls, 150 N.H. 720 (2004). In those cases, the applicant may be required to obtain approvals from not only the state, but also from the municipality, and the municipality may apply more stringent requirements than the state does. It is possible that a project could receive a state permit but not qualify for a local permit.
Q. When there is preemption, does it mean municipalities cannot adopt any regulations in those areas at all?
A. It depends on the subject matter. In some cases, state laws comprehensively regulate a particular field but also authorize additional municipal regulation.
For example, although the state comprehensively regulates excavation through RSA Chapter 155-E, municipalities are specifically authorized to enact their own, more stringent regulations for excavation activities that are not covered by the state-mandated permitting process. See Guildhall Sand & Gravel, LLC v. Goshen, 155 N.H. 762 (2007). Similarly, although the state has a complete program of regulating individual sewage systems, RSA 485-A:32, I clarifies that towns and cities may enact more stringent regulations of those systems. The state also extensively regulates solid waste facilities through RSA Chapter 149-M, but RSA 149-M:9, VII specifically allows municipalities to enact "lawful" local ordinances, regulations and codes which are not inconsistent with the rest of the statute. This authority extends far enough that municipalities actually may prohibit solid waste facilities in all districts except those owned and operated by the municipality itself, so long as they provide their citizens with access to a state-approved facility somewhere. North Country Environmental Services, Inc. v. Bethlehem, 146 N.H. 348 (2001); North Country Environmental Services, Inc. v. Bethlehem, 150 N.H. 606 (2004).
It is important to check the law carefully, however, because the carve-out for municipal regulation may be rather limited. One illustration of this is found in RSA Chapter 485-C, the Groundwater Protection Act. It says that "[n]othing in this chapter shall be deemed to preempt the authority of municipalities, under other statutes, to enact local ordinances or regulations affecting groundwater, other than groundwater withdrawals; provided, however, that requirements imposed under this chapter shall be considered as minimum." RSA 485-C:20. In other words, municipalities may still protect the quality of groundwater sources under any authority they may have from other statutes, and can enact ordinances and regulations, so long as they are as stringent or more stringent than RSA Chapter 485-C. What they may not do is regulate groundwater withdrawals.
Q. If we can't regulate in certain fields, or if our regulation is limited, are there other ways we can have some effect on land use or other projects in our community?
A. Yes. Many statutes provide for municipal comment, recommendation or other input into the state permitting process.
For example, the Groundwater Protection Act permits municipalities in which a groundwater withdrawal project has been proposed to intervene in the permitting process as an interested party. The Department of Environmental Services is required to receive comments from municipalities who wish to submit them, and to issue written findings with respect to each issue raised by a municipality that is contrary to the department's decision about the matter.
Q. We've heard a lot about the Northern Pass project lately. Does this preemption business apply to that?
A. Yes; local regulation of energy projects such as Northern Pass is preempted.
The Northern Pass project involves a proposed power line that will run from the Canadian border through Pittsburg, down through the North Country and the White Mountain National Forest. Under RSA Chapter 162-H (Energy Facility Evaluation), the state Site Evaluation Committee regulates "energy projects," which include electric transmission lines such as those proposed in the Northern Pass project. RSA 162-H:2, VII. That means that municipalities are preempted from regulating these projects. PSNH v. Hampton, 120 N.H. 68 (1980).
However, municipalities do have a role in the process. All of the communities in which a part of the transmission line would be located have been notified of the application. RSA 162-H:7, V(f). Those municipalities may require the applicant to provide informational hearings to inform the public of the proposed project. RSA 162-H:15. Further, the state may only approve an energy facility application if it finds, among other things, that the project "will not unduly interfere with the orderly development of the region with due consideration having been given to the views of municipal and regional planning commissions and municipal governing bodies." RSA 162-H:16, IV. The applicant, other parties and any person directly affected by the state's decision on an application may move for a rehearing within 30 days, and may further appeal a denial of rehearing or a rehearing decision within 30 days to the New Hampshire Supreme Court. RSA 162-H:11; RSA 541:3; RSA 541:6. Any party able to demonstrate that they have suffered, or will suffer, an injury in fact, may have standing to bring an appeal. See In re Londonderry Neighborhood Coalition, 145 N.H. 201 (2000).
Projects involving international electric transmission lines such as Northern Pass also require a federal Presidential Permit. As part of that permitting process, the federal Department of Energy (DOE) is required to prepare an "environmental impact statement" (EIS) that describes the environmental impacts associated with the project and mitigation required to address it. To prepare the EIS, public "scoping" meetings have been held by DOE around the state to identify the scope of the issues to be addressed in the EIS and to identify the significant issues related to the proposed project. 10 C.F.R. §1021.104; 40 C.F.R. 1501.7. Municipalities and the public have had an opportunity to participate in that process by testifying at the scoping meetings or submitting comments directly to DOE. Going forward, when the draft EIS is prepared, municipalities and the public will have an opportunity to comment on it, and at least one public hearing will be held. The federal government is required to consider the comments submitted, and in the final EIS it must respond to those comments. 10 C.F.R. §1021.313.
Local officials in NHMA-member municipalities may contact LGC's legal services attorneys for more information on this and other topics of interest Monday through Friday, 8:30 a.m. to 4:30 p.m., by calling 800.852.3358, ext. 384. School officials should contact the New Hampshire School Boards Association attorney at 800.272.0653.