Tennessee

Constitutional Provisions

Tenn. Const. art. XI, § 9: “Any municipality may by ordinance submit to its qualified voters in a general or special election the question: ‘Shall this municipality adopt home rule?’ In the event of an affirmative vote by a majority of the qualified voters voting thereon, and until the repeal thereof by the same procedure, such municipality shall be a home rule municipality, and the General Assembly shall act with respect to such home rule municipality only by laws which are general in terms and effect.”

Tenn. Const. art. XI, § 9: The General Assembly retains the sole power to enlarge or increase the taxation power of municipalities through enactment of general laws: “the power of taxation of [a home rule] municipality shall not be enlarged or increased except by general act of the General Assembly.”

Tenn. Const. art. XI, § 9: “[A]ny act of the General Assembly private or local in form or effect applicable to a particular county or municipality either in its governmental or its proprietary capacity shall be void and of no effect unless the act by its terms either requires the approval of a two-thirds vote of the local legislative body of the municipality or county, or requires approval in an election by a majority of those voting in said election in the municipality or county affected.”

The state constitution also gives the General Assembly the power to allow counties to adopt home rule charters. Tenn. Const. art. VII, § 1.

Statutory Provisions

Tennessee has not enshrined municipal home rule authority into statute, but the General Assembly has passed legislation concerning home rule municipalities. See, e.g., Tenn. Code Ann. § 69-10-112(a–b) (permitting home rule cities and counties to regulate certain types of well-drilling).

The General Assembly enacted a statute permitting counties to adopt home rule charters. Tenn. Code Ann. §§ 5-1-201 et seq.

Fourteen cities in Tennessee are incorporated under home rule charters: Chattanooga, Clinton, East Ridge, Etowah, Johnson City, Knoxville, Lenoir City, Memphis, Mt. Juliet, Oak Ridge, Red Bank, Sevierville, Sweetwater, and Whitwell.

Tennessee law also allows for the consolidation of cities and a county to form a unified metropolitan government and those consolidated governments to adopt a charter form of government, under Tenn. Code §§ 7-21-101 et seq. or Tenn. Code Ann. §§ 7-1-101 et seq., and Tenn. Code Ann. §§ 5-1-201 et seq., respectively. Three metropolitan areas in Tennessee have created consolidated city-county governments and adopted charters: Nashville and Davidson County, Lynchburg and Moore County, and Hartsville/Trousdale County. Two counties have adopted home rule charters, Shelby County and Knox County.

While it is constitutionally unclear whether the merged city-counties are considered “home rule” governments under Tenn. Const. art. XI, § 9, metropolitan governments have similar powers under statute. See Tenn. Code Ann. § 7-2-108.Similarly, “[c]ounties organized under charter government . . . are not strictly limited to those powers otherwise granted by the General Assembly, and they possess broad authority for the regulation of their own local affairs.” S. Constructors, Inc. v. Loudon Cty. Bd. of Educ., 58 S.W.3d 706, 713 (Tenn. 2001). 

Generally, the state legislature may pass preemptive legislation of general applicability affecting both home rule and non-home rule municipalities. See Tenn. Const. art. XI, § 9, clause 4. In other words, if the state wishes to preempt local legislation, it must do so through laws that could affect all municipalities in Tennessee. If the state legislature passes a law that can only apply to a single municipality, that law is likely void unless the law requires local ratification and is locally ratified. In general, a local government can enact more stringent laws if not otherwise preempted. See, e.g., Southern Railway Co. v. City of Knoxville, 442 S.W.2d 619, 621 (Tenn. 1968) (“The mere fact that the state, in the exercise of the police power, has made certain regulations does not . . . prohibit a municipality from exacting additional requirements.”). Tennessee law recognizes three types of preemption.

Express Preemption

Express preemption occurs when the General Assembly includes explicit preemptive language in state statutes. For example, the state has expressly preempted wage and employment benefit requirements: “Unless required by state or federal law, all additional wage or employment benefit mandates imposed on private employers by a local government are hereby preempted.” Tenn. Code Ann. § 50-2-112(a)(1).

Field Preemption

Field preemption occurs when the state statutes expressly or impliedly occupy an entire legislative field, leaving no room for local regulation. For example, the state has preempted the field of firearm regulation:

No county, city, town, municipality, or metropolitan government nor any local agency, department, or official shall occupy any part of the field regulation of firearms, ammunition or components of firearms or ammunition, or combinations thereof.

Tenn. Code Ann. § 39-17-1314.

Conflict Preemption

Conflict preemption occurs when there is outright or actual conflict between state and local law. Municipalities with home rule charters may only pass ordinances that are consistent with state law. “Municipal ordinances in conflict with and repugnant to a State law of a general character and state-wide application are universally held to be invalid.” Southern Railway Co. v. City of Knoxville, 442 S.W.2d 619, 621 (Tenn. 1968). When presented before a court, the test of “whether such county or municipal rule is in ‘conflict with and repugnant to’ a statute is whether the rule takes away a right granted by the state, or conversely grants a right denied by the state.” Crawley v. Hamilton County, 2005 WL 123495, at *2 (Tenn. Ct. App. Jan. 21, 2005). In other words, if a statute permits something prohibited by the state or prohibits something permitted by the state, the local law is preempted.

Greenhouse Gas Emissions. Tenn. Code Ann. § 4-1-422: Preempts local governments from adopting or implementing “policy recommendations that deliberately or inadvertently infringe or restrict private property rights without due process, as may be required by policy recommendations originating in, or traceable to, the United Nations or a subsidiary entity of the United Nations” including Agenda 21, the 2030 Agenda for Sustainable Development, proposals to reach net zero emissions by 2050, and other comparable international goals and agreements. The same section prohibits local governments from providing any financial aid to nongovernmental organizations that assist in implementing those goals and agreements. It further creates a private right of action allowing any individual to sue a local government for violating this section and allowing a prevailing plaintiff to recover fees and punitive damages.

Building Electrification. Tenn. Code Ann. § 7-51-2101: This law prohibits local governments from adopting a “policy that prohibits or has the effect of prohibiting, based upon the type or source of energy to be delivered to or used by an individual customer (1) the connection or reconnection of a utility service or (2) the sale or installation of an appliance used for cooking, space heating, water heating, or another end use.”

Fossil Fuel Development & Pipeline Safety. Tenn. Code Ann. § 7-51-2202: Preempts local governments from banning fossil fuel projects or regulating or enforcing pipeline safety. Under the law’s broad language, local governments may not prohibit oil and gas companies from building new fossil fuel infrastructure in their jurisdiction. Specifically, “a political subdivision of this state shall not, arising from or as a result of a local action, prohibit the development and implementation of the types or sources of energy that may be used, delivered, converted, or supplied by [utilities, transmission corporations, or liquefied petroleum dealers].” Not only are direct prohibitions on new fossil infrastructure prohibited, but so too are “de facto” prohibitions “of the siting, or a prohibition of construction, expansion, or maintenance, of energy, industrial, or related transportation infrastructure within the jurisdictional boundary of a political subdivision.”

Plastic Bags. Tenn. Code Ann. § 7-51-2002: Prohibits local governments from regulating the use, disposition, or sale of an “auxiliary container” (e.g., plastic bags), including prohibitions, restrictions, fees, charges, or taxes. The law does not restrict recycling programs nor apply to auxiliary container use on local government property or regulation at certain events managed by local governments.

Dillon’s Rule remains the basic principle under which courts will consider the validity of local laws in cities without home rule charters. S. Constructors, Inc. v. Loudon Cty. Bd. of Educ., 58 S.W.3d 706, 711–12 (Tenn. 2001) (“[W]ithout some form of constitutional authorization, local governments in Tennessee possess only those powers and authority as the General Assembly has deemed appropriate to confer upon them.”). Still, courts have also recognized that when the General Assembly has demonstrated an intent to delegate broad authority to local governments, courts should respect that delegation and construe the scope of that authority broadly. Id. at 712–13 (“[S]trict construction of local governmental power is only appropriate when legislative intent as to the proper scope of that power is absent or otherwise ambiguous . . . [and] Dillon’s Rule is essentially only a canon of construction used to ascertain the intention of the General Assembly.”).

Cities that have adopted home rule charters are treated in a fundamentally different way:

The effect of the home rule amendments was to fundamentally change the relationship between the General Assembly and these types of municipalities, because such entities now derive their power from sources other than the prerogative of the legislature. Consequently, because the critical assumption underlying application of Dillon’s Rule is no longer valid as to home rule municipalities, Dillon’s Rule simply cannot be applied to limit any authority exercised by them.

Id. at 714.

Across all city types however, express, field, and implied preemption still operate to invalidate certain local laws. Although the state recognizes each of those types of preemption,¹ Tennessee courts often resolve cases without specifically naming those doctrines.

Relatedly, one of the main sources of conflict between cities and states in Tennessee concerns whether a state law is one of “general applicability” or is “private and local in form or effect.” Under Tenn. Const. art. XI, § 9, laws that are local in effect must be approved by a local referendum. But courts have affirmed that statutes are valid even where the statute may only apply to one municipality at the time of the law’s passage, provided it is possible for the law to later apply to other municipalities. See, e.g., Civ. Serv. Merit Bd. v. Burson, 816 S.W.2d 725 (Tenn. 1991).

Several cases provide examples of Tennessee courts balancing local and state control:

• S. Constructors, Inc. v. Loudon Cty. Bd. of Educ., 58 S.W.3d 706 (Tenn. 2001): After a county school board and its contractor arbitrated a contract dispute, the contractor challenged the arbitration award by arguing that the General Assembly had never expressly granted a county the authority to enter into an arbitration agreement. Id. at 708–09. This case reaffirms that Dillon’s Rule is the default canon of construction used to construe local governmental power, but notes that courts have taken a liberal view of local government power when “the General Assembly has conferred general welfare authority to protect the citizens’ health, convenience, and safety.” Id. at 713.

• Southern Railway Co. v. City of Knoxville, 442 S.W.2d 619 (Tenn. 1968): In this case a railway challenged a local ordinance requiring active signals like crossing gates or staff waving flags at intersections where its tracks crossed roadways. Id. at 620. The railroad argued that the local law was in conflict with a state law only requiring “at each crossing a sign, marked” in a way prescribed by the state statute. Id. at 621. The court upheld the local law, concluding that there was no preemptive conflict where the local “ordinance does not authorize anything the statute forbids nor does it forbid anything the statute requires. Both the statute and the ordinance can co-exist and be effective.” Id. at 623.

• Farris v. Blanton, 528 S.W.2d 549 (Tenn. 1975): This case involved a challenge to a state law designed to provide for run-off elections in counties with a mayor as head of the executive or administrative branch. At the time, only Shelby County met that criterion. The issue before the court was whether the law was private and local in effect. Id. at 551. Recognizing that the state can only pass laws affecting home rule cities through laws of general applicability, the court created the legal test for determining when a state statute is private or local in form or effect, explaining that the “sole constitutional test must be whether the legislative enactment, irrespective of its form, is local in effect and application.” Id. Using this framework, the court voided the state law for being private and local in effect.

• Bd. of Educ. v. Memphis City Bd. of Educ., 911 F. Supp. 2d 631 (W.D. Tenn. 2012): This case involved a challenge that a state statute creating criteria for creating municipal school districts was ostensibly general but in fact applied only to one particular county. The plaintiffs brought multiple claims, including that Public Chapter 905 was unconstitutional. Id. at 640. The court reasoned that, although a law was written in generic terms, upon a pragmatic consideration of how it was designed and how it operates in fact, the court can find that the law in fact unconstitutionally applies to a single local government. That standard was met in this case and the court invalidated the law after applying the test set out in Farris. The court concluded that the General Assembly intended the statute to apply only to the county where Knoxville is located, ruling it general in form but local in effect. Id. at 660.

• Shelby County v. McWherter, 936 S.W.2d 923 (Tenn. App. 1996): Shelby County brought a declaratory judgment action challenging a state statute that dictated which residents were eligible to serve on certain school boards. Id. at 924–25. The county tested an argument that its own charter should supersede state laws where the charter concerns a governmental or political function internal to the county. Id. at 932. The court disagreed, broadly announcing that “there is no constitutional provision that prohibits the Legislature from enacting laws which in some form or fashion are contrary to a local law set forth in a county’s home rule charter” and that the holding applies even as to local laws that “relate to matters in which the county acts in a governmental or political capacity.” Id. at 933–34.

Recent and Ongoing Litigation

Three recent challenges brought by the consolidated government of Nashville and Davidson County (“Metro Nashville”) against the state have challenged state laws as violative of the city’s home rule authority:²

• Metro Nashville challenged a law that would have prevented the city and county from enforcing its charter rules concerning procedures for making changes to a local fairground. The case, Metropolitan Government of Nashville and Davidson County v. Lee, Case No. 23-0670-I (Davidson Cty. Chancery Ct.), argued that the state law improperly targeted a single local government. On September 21, 2023, the trial court ruled for the city and county. The state did not appeal the decision.³

• Metro Nashville challenged a law giving the state the power to appoint the majority of the city’s airport authority board. On October 31, 2023, the trial court found for Metro Nashville, concluding that the state law violated Tenn. Const. art. XI, § 9.⁴ The intermediate appellate court upheld that portion of the trial court’s ruling.⁵ The state appealed that decision to the Tennessee Supreme Court, where the matter is now pending.⁶

• Finally, Metro Nashville challenged a state law limiting city and metropolitan councils to no more than 20 members.⁷ Prior to that law’s passage Nashville’s metro council had 40 members. The case is Metro Government of Nashville and Davidson County v. Lee, Case Nos. 23-0336-I, 23-0395-III(I) (Davidson Cty. Chancery Ct.). On July 29, 2024, the trial court ruled for Nashville, finding the law singularly targeted Nashville,⁸ but the intermediate appellate court partially reversed that decision. Metro Nashville appealed that decision to the Tennessee Supreme Court, where the matter is now pending.⁹ The state has appealed that decision. The appeal is M2024-01182-COA-R3-CV (Tenn. Ct. App.), available here.

Tennessee’s code authorizes the state fire marshal to adopt the minimum statewide building construction safety standards and associated rules and regulations. Tenn. Code Ann. § 68-120-101. Under Section 0780-02-02.01 of the Rules of Tennessee’s Department of Commerce and Insurance, Division of Fire Prevention, the state fire marshal has adopted by reference the codes published by the International Code Council, including the 2012 editions of the International Building Code and the International Energy Conservation Code. 

Counties and cities in Tennessee may adopt their own building codes. Tenn. Code Ann. § 6-54-502. Municipalities may be classified as exempt from state enforcement if they have an approved code enforcement department with certified inspectors.¹⁰ An exempt jurisdiction can adopt any code if it is at least as strong as the state code and gets approval from the State Fire Marshal’s Office.¹¹

For counties that adopt their own building codes, such codes only apply to the unincorporated areas of the county and to the incorporated cities and towns within the county that have not adopted their own building codes. Tenn. Code Ann. § 5-20-106. 

The Tennessee Valley Authority (TVA) plays a central role in electricity generation and in the regulation of distribution utility entities in Tennessee. TVA is a federally owned corporation created by the Tennessee Valley Authority Act of 1933 (TVA Act) and overseen by a board of directors appointed by the President of the United States. TVA is governed by the TVA Act itself and regulations promulgated thereunder. As a result, TVA is largely immune from state regulation, even though TVA serves “virtually all of the 95 counties in Tennessee”¹² and operates over 90% of Tennessee’s electric generating capacity, including the ten largest power plants in the state.¹³

What is the relevant utility regulatory body in the state? Who and what does it regulate? The Tennessee Public Utility Commission (TPUC) is responsible for regulating and setting rates for investor-owned electric utilities. See Tenn. Code Ann. § 65-5-101. However, TVA’s unique authority in the state means that the TPUC does not regulate the rates of municipal electric or rural electric cooperatives. See Tenn. Code Ann. §§ 65-4-101(6); 65-5-101(a).

The TPUC has very little authority in matters that implicate TVA. For example, the TPUC has no authority over what generation assets TVA chooses to build. The TPUC does have jurisdiction over wastewater, gas, and telecommunications utilities.¹⁴ 

What authority, if any, do municipalities have over utilities? TVA has broad authority to set resale rate schedules at the consumer level. See 16 U.S.C. § 831i; Ferguson v. Elec. Power Bd., 378 F. Supp. 787, 789–90 (E.D. Tenn. 1974). Municipalities can create their own electric distribution utilities, but because TVA is a federally created monopoly and controls the state’s transmission lines, local power companies buy power from TVA at a rate unilaterally set by TVA. See Tenn. Code Ann. § 7-52-103. A local power company that wants to end its contract with TVA must build its own transmission lines. See Tennessee Valley Authority, 177 F.E.R.C. ¶ 61,021 (2021).

While the TVA Act does not expressly preempt state regulation, the Attorney General has suggested that the TVA Act may create implied preemption, as it confers broad discretion on the TVA Board of Directors “in the exercise of their authority to sell surplus power in accordance with the Act’s established policies.” Additionally, in McCarthy v. Middle Tenn. Elec. Membership Corp., the Sixth Circuit found that state law provisions that invade the area of control over distributors granted to TVA are preempted. See 466 F.3d 399, 406 (6th Cir. 2006). TVA primarily exercises that control through its contracts for the sale of power with local power companies.

Can cities enter into franchise agreements with utilities? Yes, but any such franchise must be approved by the TPUC, which can impose “such conditions as to construction, equipment, maintenance, service or operation as the public convenience and interest may reasonably require.” Tenn. Code Ann. § 65-4-107. Additionally, TVA has the power to acquire real estate by eminent domain and, for real estate located along the Tennessee River or any of its tributaries, TVA can acquire such property “at a price deemed fair and reasonable” by the TVA board, or in the alternative, through eminent domain. TVA Act, § 4(h)–(i).

Does case law address whether the state public service law preempts local authority over utilities? As to ratemaking for electric utilities, a significant body of federal case law confirms that TVA’s ratemaking authority, established in federal law and primarily exercised through provisions in the contracts TVA enters into with its distributors, is not reviewable by courts. See Holbrook v. Tennessee Valley Auth., 48 F.4th 282, 291 (4th Cir. 2022) (“[F]ederal courts in the Tennessee Valley region have a long history of declining to review TVA ratemaking. This trend reaches back at least 84 years to a case decided just a few years after the TVA Act was passed.”) (citations omitted). As to other types of utilities, case law is limited but generally indicates that state public service law only preempts local regulations that would affect whether a utility can exist, but does not preempt local regulation over access to municipal streets and rights-of-way. See, e.g., Briley v. Cumberland Water Co., 389 S.W.2d 278, 282 (1965) (“[T]he elemental powers of a public utility must be obtained from the State Public Service Commission [but] . . . the privilege of occupying the streets, roads and public ways of cities or counties with its facilities must be obtained from the local political subdivision in which the utility operates.”) (quoting Franklin Light & Power Co. v. S. Cities Power Co., 47 S.W.2d 86, 91–92 (Tenn. 1932)).

How can cities intervene in Public Utility Commission proceedings? Under the state regulations governing the practice and procedure of contested cases before the TPUC, petitions for intervention shall be granted in accordance with Tenn. Code Ann. § 4-5-310 and Tenn. Code Ann. § 65-2-107. See also Tenn. Comp. R. & Regs. § 1220-01-02-.08. Further, a petition for intervention must “set forth with particularity those facts that demonstrate that the petitioner’s legal rights, duties, privileges, immunities or other legal interests may be determined in the proceeding or that the petitioner qualifies as an intervenor under any provision of law.” Id.

As a federal entity, some of TVA’s activities are regulated by the Federal Energy Regulatory Commission (FERC). FERC provides a step by step guide on how a party, including a municipality, may file for intervention in its proceedings.¹⁵ All motions to intervene are to be submitted to FERC in accordance with 18 C.F.R. § 385.214.

Does the state have an obligation to serve statute? Yes, but it does not apply to TVA. As provided by Tenn. Code Ann. § 65-4-114, “[t]he commission has the power, after hearing, upon notice, by order in writing, to require every public utility, as defined in § 65-4-101, to: (1) Furnish safe, adequate, and proper service and to keep and maintain its property and equipment in such condition as to enable it to do so; and (2) Establish, construct, maintain, and operate any reasonable extension of its existing facilities where, in the judgment of the commission, such extension is reasonable and practicable, and will furnish sufficient business to justify the construction, operation, and maintenance of the same, and when the financial condition of the public utility affected reasonably warrants the original expenditure required in making such extension.”

Has the state passed enabling legislation for community choice aggregation (CCA)? No, Tennessee currently lacks enabling legislation for community choice aggregation programs.¹⁶

Elijah Swiney, John Forrest Dillon Goes to School: Dillon’s Rule in Tennessee Ten Years After Southern Constructors, 79 Tenn. L. Rev. 103 (2011) (providing, among other things, an in-depth discussion of the history of Dillon’s Rule in Tennessee).

Caroline Cox & Madeline Flynn, The TVA Effect: Clean Energy Goals & Public Power, Vanderbilt Law Research Paper No. 23-54 (Sept. 29, 2023), https://perma.cc/75MQ-DF93 (examining “the TVA’s effect on clean energy goals within the TVA ‘fence’ and how interpretation of the TVA Act and other federal laws have given TVA control over the energy transition in the region”) (cleaned up).

In 2018, Tennessee adopted a law that makes any local government entity that has adopted or enacted “a sanctuary policy” ineligible for grants from the state department of economic and community development so long as the policy remains in place.¹⁷

Tennessee does not allow for citizen-initiated ballot measures that would uphold, repeal, or amend a state statute or the state constitution. Ballot initiatives or constitutional amendments can only come through the state legislature or state constitutional convention. See Tenn. Const. art. XI, § 3.

In 2025, Tennessee adopted a law allowing any member of the legislature to request that the state’s attorney general investigate a local law that “violates, or that would violate if enacted or enforced, state law or the Constitution of Tennessee.” Tenn. H.B. 1097 (2025). Upon concluding that the local law might violate state law, the state can withhold funds, including state-shared taxes.