Cities Climate Law

Introduction and Scope

Local governments are well-positioned to lead the fight against climate change by reducing community-wide greenhouse gas emissions, promoting renewable energy resources, and otherwise advancing climate mitigation and adaptation goals. Many local governments have already taken actions, and there is more they can do. In taking action to mitigate and adapt to the climate crisis, local governments must be aware of and act consistently with preemptive state laws that limit their authority. This report provides state-by-state information, resources, and analysis for nineteen states on key state-local preemption issues.

1. CROSS-CUTTING THEMES

The courts, constitutions, and statutes of each state handle the balance of power between the state and its local governments differently. But broadly, all seek to offer local governments some degree of autonomy, usually expressed as a variety of “home rule,” while preserving ultimate authority in the state itself. The specific ways in which the states wield their authority are similarly varied, but they usually include both instances where the state passes laws that withdraw whole fields from local regulatory authority, and ones in which states broadly regulate in an area but allow local governments latitude to regulate so long as there is no conflict between the two. The sections below provide general background on the kinds of considerations that shape the relationship between states and local governments, and the chapters that follow expand on each in the context of particular states. 

2. SCOPE

The states covered in this report are ones within which the authors have ongoing research projects and partnerships. They represent several of the “swing” states that are the most closely politically divided, ones where control of the state is split between political parties, and others—like Texas and Florida—where legislatures have taken particularly noteworthy steps to preempt local climate law. For each state covered, the chapters highlight the sources of local authority to regulate and the limits imposed by the state, including: (1) constitutional and statutory delegations of home rule authority and police powers to local governments; (2) state law governing the nature and content of home rule charters, as well as preemption of local law generally; (3) a catalog of current state laws that may preempt local climate action; (4) leading case law on home rule and preemption of local law; (5) where applicable, information on recent and ongoing litigation; (6) a summary of how the state handles building codes; (7) discussion of legal considerations related to public utilities; (8) helpful secondary sources; and (9) additional relevant information. 

Many of the issues presented in each state’s preemption case law section in this report arise outside the environmental, energy, and climate context. This is intentional, as case law that specifically discusses climate-related preemption measures is too limited to fully illustrate the doctrines through which courts would likely consider those cases. We would not be able to explain state-specific preemption doctrines by only examining cases that are topically relevant.

These resources are intended to help local governments, policymakers, city attorneys, academics, advocates, and other stakeholders craft resilient climate policies, anticipate and respond to preemption challenges, and mobilize public engagement. The information provided is not exhaustive—it is intended instead as a starting point and a guide to the topics most relevant to state-local preemption. Links to publicly available versions of the constitutional provisions, statutes, and cases cited are provided where those are available. 

3. HOME RULE AND THE POLICE POWER

Determining whether a local government may take a particular action involves a two-part inquiry, asking first whether the locality has the authority to legislate on a given issue, and second whether the state has preempted local governments from exercising that authority. The scope of local governments’ authority to legislate is significantly shaped by the extent to which their states have allowed for home rule. 

Home rule is a constitutional or statutory delegation of authority from a state to its local governments, permitting them to govern within their jurisdictions and adopt laws, regulations, and policies across a broad range of subjects.1 In the vast majority of states, this “commitment to local lawmaking capacity [is] codified in [state] constitutions and statutes.”2 The core purpose of home rule is to empower local governments to act independently on local matters, so long as their actions are not inconsistent with state law, the state constitution, or their own home rule charters.3 Today, all but three states provide some level of home rule—forty-one via the state’s constitution and six through statute.4

Local action in states without a home rule system is cabined by an approach that was first described by Iowa Supreme Court Chief Justice John Dillon, and which has come to be known as Dillon’s Rule. Under that approach, courts considering the scope of local governments’ authority recognize only those powers that “are essential to municipal government or that the state has explicitly given to them, including any powers that are necessary for or implied by those explicitly given powers.”5 When Dillon’s Rule applies, local governments’ ability to regulate is more restricted.

Home rule’s “primary purpose and [] principal effect . . . has been to undo Dillon’s Rule” and empower local governments to legislate proactively, without prior state approval.6 However, even in states with expansive home rule systems, local authority is limited by the almost absolute power of state preemption.7

4. PREEMPTION

Broadly speaking, preemption is a legal doctrine that allows the federal or a state government to restrict or eliminate the authority of lower levels of government in a specific policy area.8 There are three ways a state can preempt local action: (1) expressly through clear statutory language (known as “express preemption”); (2) by demonstrating the state’s legislative intent to occupy a whole field of regulation (known as “field preemption”); or (3) by enacting state laws that conflict with local ones (known as “conflict preemption”).9 State governments can employ all or a mixture of preemption methods, depending on the state.

While related, home rule and preemption are distinct legal doctrines. Strong home rule increases baseline local authority but it does not limit a state’s power to preempt particular laws or fields of regulation. Further, a municipality is generally only affected by preemption to the extent that its actions cross into areas of state concern. Home rule should be viewed as a source of local initiative, while preemption as a legal boundary.

Many state courts liberally construe home rule authority and avoid finding preemption under certain conditions. A few states, like Ohio, have even reined in state power in order to protect local lawmaking.10 In City of Canton v. State, the Supreme Court of Ohio held that “a state law preempting local regulation cannot merely block local action but must include some substantive replacement regulation.”11 Home rule has developed differently in each state, resulting in a patchwork of fifty distinct and nuanced systems of local power.

5. KEY ENVIRONMENTAL, ENERGY, AND CLIMATE CASES

In most states, there is relatively little preemption case law specific to environmental issues. Where there are cases, they are not broadly applicable because of each state’s unique home rule and preemption frameworks. As a result, many of the issues discussed in each state’s preemption case law section fall outside the environmental, energy, and climate context. That said, some state courts have decided significant preemption disputes in the environmental, energy, and climate sectors. Even though each state’s decisions are not binding on other states, courts in states in which there is little applicable case law may find these examples persuasive: 

  • Buildings: Glen Oaks Village Owners, Inc. v. City of New York, No. 42, 2025 WL 1458090 (N.Y. May 22, 2025) (holding that New York State’s climate law, the Climate Leadership and Community Protection Act (CLCPA), does not field preempt Local Law 97, New York City’s building performance standards);
  • Oil & Gas: Wallach v. Town of Dryden, 23 N.Y.3d 728 (2014) (holding that New York’s Oil, Gas and Solution Mining Law does not preempt local zoning laws that ban oil and gas production activities, including hydrofracking);
  • Renewable Energy: Town of Copake v. New York State Off. of Renewable Energy Siting, 191 N.Y.S.3d 181 (N.Y. App. Div. 3d Dept. 2023) (upholding the discretionary authority of New York State’s Office of Renewable Energy Siting to override local restrictions on major renewable energy facilities when such a restriction is “unreasonably burdensome in view of the CLCPA targets and the environmental benefits” of the facility); and 
  • Utilities: StopAquila.Org v. Aquila, 180 S.W.3d 24 (Mo. Ct. App. 2005) (holding that state public utilities law does not preempt local zoning law); PPL Electric Utilities v. City of Lancaster, 214 A.3d 639 (Pa. 2019) (state public service law field preempted a municipal ordinance that imposed additional controls on state-regulated public utilities for the use of the municipality’s rights-of-ways); Boston Edison Co. v. City of Boston, 459 N.E.2d 1231, 1234 (Mass. 1984) (holding that local ordinances that regulate utilities are broadly preempted by comprehensive state legislation that occupies the field of utility regulation); Boston Gas Co. v. City of Somerville, 652 N.E.2d 132 (Mass. 1995) (holding a local ordinance was preempted by state law governing the sale of gas and electricity by public utilities because the ordinance imposed additional requirements on gas companies that were inconsistent with the state law).

6. THE POLITICS OF PREEMPTION

Preemption exists in every state and, as a legal concept, is content neutral. States have used their preemptive powers across diverse subject matters including, for example, laws that restrict local taxation authority,12 ones that regulate alcohol ordinances,13 and others that occupy the field of firework regulation.14 Historically, preemption “consisted of a judicial determination of whether a local law conflicted with preexisting state law.”15 Over the past two decades, though, state legislatures have aggressively and frequently used preemption to enact sweeping statutes barring “local efforts to address a host of local actions.”16 This trend, sometimes referred to as “New Preemption,” is characterized deregulatory action against larger, often progressive cities—either to prevent the enactment of certain ordinances or to retaliate against those already passed.17 A quintessential example of this style of preemption occurred in 2016, when Alabama enacted legislation preempting local minimum wage regulation just two weeks after Birmingham passed an increase.18 On the climate front, one of the most replicated state preemption laws has been the so called “ban on natural gas bans,” which swept through conservative states after Berkeley, California enacted an ordinance prohibiting natural gas piping in new construction in 2019.19 Recent preemption of local climate-related laws fits squarely within the framework of New Preemption, with conservative-led states increasingly targeting climate-related initiatives led by progressive city governments. 

* * *

There is an observable trend towards state governments seeking to preempt local climate-related actions, but how and to what extent states will succeed in that effort depends on specific circumstances and varies significantly by state. The following chapters offer a state-by-state primer on state preemption of local action in nineteen states, with particular attention to climate considerations.

Notes

  1. See Paul Diller, Intrastate Preemption, 87 B.U. L. Rev. 1113, 1124 (2007) (describing home rule as “a system of state and local relations that gives some degree of permanent substantive lawmaking authority to localities beyond that which was provided by the traditional Dillon’s Rule regime.”); Nat’l League of Cities, Principles of Home Rule for the 21st Century (2020), https://perma.cc/A3VP-NXZZ.  ↩︎
  2. Richard Briffault, The Challenge of the New Preemption, 70 Stan. L. Rev. 1995, 2011 (2018), https://perma.cc/3B53-S66J. ↩︎
  3. See Nat’l League of Cities, supra note 1.  ↩︎
  4. See Briffault, supra note 2.  ↩︎
  5. See City of Clinton v. Cedar Rapids & Missouri Railroad Co., 24 Iowa 455 (1868). ↩︎
  6. See Briffault, supra note 2, at 2012. ↩︎
  7. Id.; Diller, supra note 1, at 1126–27.  ↩︎
  8. See Arizona v. United States, 567 U.S. 387, 398–99 (2012) (explaining the principle of supremacy). ↩︎
  9. See Holt’s Cigar Co. v. City of Philadelphia, 608 Pa. 146, 153 (2011). ↩︎
  10. See, e.g., City of Canton v. State, 95 Ohio St. 3d 149, 151–52 (Ohio 2002).  ↩︎
  11. See Briffault, supra note 2, at 2013; City of Canton, 95 Ohio St. 3d at 152–53.  ↩︎
  12. See, e.g., Mayor and Bd. of Aldermen v. Homebuilders Ass’n of Mississippi, 932 So. 2d 44 (Miss. 2006). ↩︎
  13. See, e.g., State v. Williams, 283 N.C. 550 (1973). ↩︎
  14. See, e.g., People v. Bahnke, 2024 WL 647931 (Mich. App. Feb. 15, 2024). ↩︎
  15. See Briffault, supra note 2, at 1997. ↩︎
  16. Id. ↩︎
  17. See generally Briffault, supra note 2. ↩︎
  18. See Yuki Noguchi, In Battle Pitting Cities Vs. States Over Minimum Wage, Birmingham Scores A Win, Nat. Pub. Radio (July 27, 2018), https://perma.cc/82SY-KUXS. ↩︎
  19. Berkeley’s ordinance was later repealed after losing a federal preemption challenge in federal court. See Cal. Restaurant Ass’n v. City of Berkeley, 89 F.4th 1094 (9th Cir. 2024); Berkeley, Cal., City Code § 12.80 (repealed by Ord. No. 7907-NS (2024)). ↩︎