State Preemption of Local Government: The Philadelphia Story

• Date: 01 August 2019

49 ELR 10772 ENVIRONMENTAL LAW REPORTER 8-2019

COMMENT

State Preemption of Local

Government: The Philadelphia Story

by Richie Feder and Lewis Rosman

Richie Feder is Chief Deputy City Solicitor for Legislation, City of Philadelphia Law Department.

Lewis Rosman is Senior Attorney in the Legislation Unit, City of Philadelphia Law Department.

I. Introduction

We are practitioners for the City of Philadelphia with

extensive experience in cases a nd analysis regarding the

extent to which the Commonwealth of Pennsylvania has,

or has not, preempted local regulation in various subjects

of concern to the City. As City attorneys, our perspective

is based in our role as advocates for the preservation and

defense of the City’s exercise of its home rule powers.

In considering the city-state relationship, many of the

practical, political and cultural issues addressed in Prof.

Richard C. Sch ragger’s article, e Attack on American Cit-

ies, resonate with us. In a number of instances, t he city

has seemingly been under “attack ” from outside forces that

appear mistrustful and hostile to the city’s exercise of its

regulatory authority. Because we are the quintessentia l “big

city” in a state with an other wise very large suburban a nd

rural population, the commonly cited historical tension

between urban life a nd non-urban interests has played out

in ways that we recognize in Schragger’s description of the

national experience.

Frequent preemption of local eorts to regulate mat-

ters of “local concern” is a common theme of our work in

advising city ocials on our ability to legislate in signi-

cant areas of city life.  is comes up in connection with

matters of core interest to the City (for example preemp-

tion of the regulation of handgun ownership, a literally li fe

or death problem in the City) as well as matters of perhaps

limited interest (such as preemption of local authority to

regulate the processing of scrap meta l).

We are not wholly convinced, however, that state law

preemption that impacts the city’s powers is the outcome of

a particular hostility to urban interests in general a s much

as it is the outcome of the ability of “special interests,” often

corporate but also often “interest-group” or culturally-

based, to exert outsized inuence on the state legislature.

As one of the largest cities in the countr y, with a pro-

gressive and full-time legislat ive body, many active local

interest groups, and a population with a high degree of

poverty, we are often on the cutting edge of progressive

legislative work and tend to legislate more than most, if not

all, other local government jurisdictions in Pennsylvania.1

As just one example, we were one of the rst jurisdictions

in the country to establish protections in employment,

housing and public accommodations for its LGBTQ com-

mu nit y. 2 We have a progressive sick leave law.3 And, if le ft

to our own devices, we would very likely adopt a worker-

friendly minimum wage law.4 Because we often are at the

cutting edge of progressive legislation, we are likely to draw

the ire of groups with interests opposed to such legislation;

preemption law often impacts us more than others.

We therefore are not convinced that the extensive (but

heterogeneous) body of preemption law in Pennsylvania is

the result of a particular animus toward cities. Rather, we

are where the action is; therefore, when the special interests

that oppose regulation are able to get the state to enact

preemption laws, such laws often mean more for us than

for other jurisdictions that just do not regulate as much.

is is not to say that anti-city bias does not exist; unfair

and false stereotyping is, without a doubt, abundant in the

state. But we think the corpus of preemption law in Penn-

sylvania reects the expression of interests that oppose our

regulatory interests, more so than it reect s opposition to

our (extraordinarily diverse) way of life, per se.

II. The City of Philadelphia’s

Home Rule Powers

To start with, it’s clear that, absent preemption, the City

has very broad home rule powers under the state constitu-

1. See The Philadelphia Code, generally (consisting of close to 2,000 print-

ed pages).

2. See 1982 Ordinances of the Council of the City of Philadelphia, at 1476 (add-

ing “sexual orientation” to the classes of protected status under the City’s

Fair Practices Ordinance (P, P., C §9-1100)).

3. P, P., C §9-4100 (“Promoting Healthy Families and

Workplaces”).

4. See Part III.A., infra.

Authors’ Note: e views expressed in this Comment are solely those of the authors and

do not represent the formal opinion or position of the City of Philadelphia.

Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.