PREEMPTION OF LOCAL GOVERNMENT POWERS
| Jurisdiction | Colorado |
Local land use regulations sometimes must yield to state or federal laws under the doctrine of preemption. The purpose of the preemption doctrine is to establish a priority between conflicting laws enacted by various levels of government.29 In Colorado, the contours of the preemption doctrine are shifting rapidly, in large part because residential growth and tourism are expanding into more isolated areas of the state where mineral resource development and large-scale water diversion projects have historically occurred. Likewise, the use and regulation of federal lands has become the focus of greater concern as the recreation industry grows. Finally, the degree to which local land use regulations apply to oil and gas operations continues to be a hot issue as horizontal drilling and hydraulic fracturing have moved into areas planned or zoned for residential development along the Front Range. Legislation enacted in 2019 to address this phenomenon is being implemented at the state and local level at the time of this writing. Although land use practitioners should be alert to the possibility of preemption whenever state and federal laws overlap with local regulations, preemption is never presumed and remains essentially a question of legislative intent.
1. Preemption of Local Regulation by Federal Law
Federal preemption is a "somewhat Byzantine area of the law."30 The question of federal preemption of local land use regulations typically arises when a local government attempts to regulate either (1) an activity occurring on federal land, or (2) an activity that is subject to extensive federal regulation. The Supremacy Clause — Article VI of the U.S. Constitution — provides that the U.S. Constitution, and federal laws enacted pursuant to constitutional authority, is the supreme law of the land.31
It is critical to remember that preemption of state law (or local government regulation) by federal statute will not be presumed "in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained."32 The courts "'start with the assumption that the historic police powers of the states were not to be superseded . . . unless that was the clear and manifest purpose of Congress.'"33 Legislative intent is the touchstone of any preemption analysis.34 Thus, the land use practitioner faced with a preemption argument should always begin the analysis by asking, "What provisions of federal law allegedly preempt local land use authority?" Because zoning is the most prominent police power restriction on land use, essential to the public health, safety, and welfare of communities,35 this section should be read in conjunction with the discussion in § 2.6.1, "Preemption."
Types of Federal Preemption
Federal preemption can occur in at least three situations: (1) express preemption, which occurs when the language of the federal statute reveals an express congressional intent to preempt state law, (2) field preemption, which occurs when the federal scheme leaves no room for the state to supplement it, and (3) conflict preemption, which occurs either when compliance with both the federal and state laws is a physical impossibility, or when the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.36 Even when federal laws or regulations expressly preempt certain aspects of local authority, courts will narrowly construe their preemptive effect to avoid preempting all local land use authority.37 "Invoking some brooding federal interest or appealing to a judicial policy preference should never be enough to win preemption of a state law."38 Local government enactments and state laws stand on equal footing in the preemption analysis.39
Land Use Regulation of Private Activities on Federal Land
Although states retain jurisdiction over federal lands within their territory, the Property Clause of the U.S. Constitution gives Congress the authority to enact legislation that overrides conflicting state laws.40 But since "[t]he Property Clause itself does not automatically conflict with all state regulation of federal land, the federal law may not prevent local regulation"41
The key case addressing the scope of local regulation over private activities on federal land is California Coastal Commission v. Granite Rock Co.,42 in which the U.S. Supreme Court ruled that federal mining and land management statutes do not expressly or impliedly preempt the California Coastal Commission's authority to require a permit for mining on federal land within its jurisdiction. In reaching this conclusion, the Court drew an important distinction between local "land use planning," which, like zoning regulations, would dictate the uses of federal land, and local "environmental regulations," which address the environmental impacts of the use of federal lands.
It is safe to assume that after Granite Rock, local land use regulations on federal lands will be preempted if they prohibit activities allowed by federal laws, or allow activities prohibited by federal laws, but local regulations that address the environmental impacts of private activities on federal land will be allowed in the absence of a conflict with federal laws. Consistent with that analysis, counties are not prohibited from regulating the impacts of oil and gas development on federal lands.43 In the same vein, local governments may apply regulations adopted under the Colorado Areas and Activities of State Interest Act44 to regulate the impacts of municipal and industrial water projects on federal lands.45 Because land use regulation is a feature of local government authority and an area where the tenets of federalism are particularly strong, county subdivision regulations are not preempted by the Federal Land Planning Management Act.46 Local government land use regulations that address the impacts of development on federal lands through performance standards will more likely survive a preemption challenge...
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