2007 Autumn, Pg. 28. State Preemption of Environmental Regulation.

• Author: By Attorney Jeffrey A. Meyers

New Hampshire Bar Journal

2007.

2007 Autumn, Pg. 28.

State Preemption of Environmental Regulation

New Hampshire Bar JournalAutumn 2007, Volume 48, No. 3Municipal LawState Preemption of Environmental RegulationBy Attorney Jeffrey A. MeyersMunicipalities, now more than ever, are challenged to respond to environmental impacts in their communities. Private developers, businesses, and local residents are increasingly lined up for or against proposed projects, decrying the high stakes of action or inaction. Too often, the debate is framed as a struggle between economic development and the quality of our environment. It is certain that municipal governments must grapple with the environmental consequences of growth.

As development pressure on local governments has increased, the state's role in environmental regulation has also expanded. In a series of decisions issued by the state Supreme Court over the past several years, the Court has limited the municipal role in regulating the control of groundwater and who may seek recovery for its contamination; the expansion of a lawfully permitted solid waste landfill; and the emission of toxic air pollutants by local facilities. Those decisions, in turn, have led to new legislation designed to preserve a continuing role for municipalities in environmental siting and permitting decisions.

This article considers the impact of four decisions - North Country Environmental Services v. Town of Bethlehem(fn1), BioEnergy v. Town of Hopkinton,(fn2) In re Appeal of the Town of Nottingham, et al.(fn3) and State v. City of Dover, et al.,(fn4) - on the future role of municipalities in regulating local impacts to solid waste disposal, emissions of toxic air pollutants, and control of groundwater resources. It also discusses how the legislature has responded to these decisions and to the larger issue of municipal participation in the state environmental regulatory process.

While the Supreme Court has now squarely upheld the preemptive effect of the state's regulatory schemes for groundwater, solid waste and air pollution control, there remains an important, if not fully explored, role for municipalities in local environmental regulation.

Principles of Federal and State Preemption

Federal preemption has its roots in Article VI, cl. 2 of the U.S. Constitution which provides that the Constitution and laws of the United States are the supreme law of the land and shall be binding on the states.(fn5) Whenever the federal government possesses the authority to regulate a given area, Congress may exercise this authority so as to exclude states and local governments from asserting concurrent jurisdiction over the same subject matter.(fn6)

Preemption may occur in several ways. The most obvious is where Congress expressly states that it is preempting state and local authority.(fn7) Alternatively, state and local law are preempted where a statute or regulation directly conflicts with federal law. For example, compliance with both federal and local regulations may in some circumstances be impossible,(fn8) or state and local law may impede the "execution of the full purposes and objectives of Congress."(fn9) Even absent such explicit preemption, Congress' intent to supersede state and local law may be found from "a scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it."(fn10)

State preemption of local regulation, likewise, is not a recent development. New Hampshire has long honored the principle of law that local governments are political subdivisions of the state and exercise their authority at the pleasure of the state.(fn11) Even where a municipality has express authority to legislate in a field also occupied by the state, it may not do so in derogation of the state's powers.(fn12) When a state and a municipality are charged with cooperating with one another and formulating policy, the municipality's participation must be in furtherance, not in derogation of the state's policy.(fn13)

State preemption of municipal ordinances may be express or implied. Express preemption occurs when the legislature adopts a statute explicitly prohibiting local regulation. For example, the state's pesticide control act, RSA 430, contains a provision entitled "Preemption of Local Regulation" which states in part:

This [statute regulating pesticides] is of statewide concern and occupies the whole field of regulation regarding the registration, sale, transportation, or use of pesticides to the exclusion of all local regulation.(fn14)

Like federal preemption, state preemption may also be implied. Implied preemption occurs when the state has established a comprehensive statutory scheme demonstrating the intent of the state to regulate an activity exclusively.(fn15) Implied preemption also occurs when there is an actual conflict between state and local regulation. A conflict exists when a municipal ordinance permits that which the state law prohibits or vice versa.(fn16) Lastly, there may be implied preemption where the municipal ordinance frustrates the purpose of the state statute.(fn17)

Frustration of a state purpose requires more than a mere conflict or inconsistency. For example, a municipal ordinance which specifies a minimum lot size for development exceeding the state requirement for septic approval may be inconsistent, but it does not necessarily frustrate the state policy to ensure adequate acreage for septic installation. (See Doyle v. Town of Gilmanton, 2006-797, July 19, 2007.) On the other hand, a municipal ban on the sale of gasoline containing MtBE within the community may frustrate the state's policy allowing the use of MtBE to reduce air emissions from vehicles.

Early Cases of Preemption of Local Environmental

Regulation

New Hampshire's law on state preemption of environmental regulation is relatively recent given the emergence of modern environmental regulation in the 1970's. The first decisions examining the scope of state preemption of local environmental regulation under modern state environmental statutes appeared in the early 1980's in connection with attempts to locate hazardous waste treatment facilities in Hooksett and Merrimack.(fn18) In Stablex v. Town of Hooksett(fn19) and Applied Chemical Technology, Inc. v. Town of Merrimack,(fn20) the Court rebuffed local efforts to utilize zoning regulation to preclude the siting of hazardous waste treatment facilities.

In Stablex, the Town of Hooksett claimed that municipalities in New Hampshire have long-standing powers of home rule enabling them to enact zoning ordinances and regulations for the protection of the health, safety and welfare of their citizens, including for the disposal of wastes, and that the state law at issue, the Hazardous Waste Management Act(fn21), had not preempted these powers.(fn22) In furtherance of its position, Hooksett had enacted an ordinance prohibiting the use of any land in the town for receiving, processing or disposing of hazardous waste, except by a prior affirmative vote of town residents at an annual or special town meeting.(fn23)

The Court rejected Hooksett's argument.(fn24) It found that the state's Hazardous Waste Management Act arose from the legislature's serious concerns over the absence of a comprehensive statewide program to deal with hazardous wastes and that unlike solid waste disposal, with which every municipality must deal, hazardous wastes were not produced in most communities.(fn25) The decision did leave open local regulation on such matters as traffic and roads, landscaping and building specifications, signage, garbage removal and other local matters, provided that the regulations were "administered in good faith and without exclusionary effect."(fn26)

Later, in Applied Chemical Technology, Inc.("ACT") v. Town of Merrimack, the Town and Anheuser-Busch, an intervenor in the case, tried to limit the application of Stablex by suggesting that the state regulatory process for hazardous waste facilities failed to consider local economic interests, and that local regulation should be allowed in order to protect those interests.(fn27) No such limitation of Stablex, however, was forthcoming. Rather than preclude local interests, the Court found that specific provisions of the Hazardous Waste Management Act required consideration of those interests.(fn28) The Court held that the provisions of RSA 147-C, authorizing the establishment of a local review committee, and the requirement of local public hearings on a draft facility siting permit, warranted affirmation of the broad principle of preemption enunciated in Stablex.

Thus, after Stablex and ACT, the only local actions that would not be construed to have the intent or the effect of frustrating that comprehensive regulatory scheme are those local regulations which are non-exclusionary and which could be applied in good faith to any industrial facility in the community.(fn29)

The remediation and closure of a contaminated privately-owned solid waste landfill in Pelham, N.H. in the mid-1990's provided the Court with its first opportunity to consider the preemptive effect of the state's Solid Waste Management Act, RSA 149-M.

Unlike the Hazardous Waste Management Act, the state's solid waste law provides municipalities with both responsibility and authority over several aspects of solid waste management. For example, municipalities are required to provide access to an approved...