What is preemption? (Part 1)

Preemption is well studied and cited in case law in the United States, but this terminology or area of study has not carried over into Canada to the same degree. Preemption is a tool that allows a higher level of government to supersede the authority of a lower level of government. This often takes the form of a state or provincial government amending legislation to prevent, narrow, or limit the ability for a municipality to act or regulate in a certain area, but can also include referendums or executive branch orders. The tool itself is neither positive or negative, as principles of multi-level governance, and even the doctrine of paramountcy in Canada show that clearly defined roles and responsibilities for each order of government are often necessary for effective governance. However, the way the tool is used, and the intention behind its use can lead to positive or negative outcomes. My research focuses on the broader pattern of intentions and impacts behind climate preemption, as an emerging pattern of recent preemptions.

I argue that rather than supporting or clarifying the multilevel governance structure needed to successfully combat climate change issues,

these new and emerging legal barriers overly narrow the role and authority of municipalities in dealing with climate change, while still leaving them with a large proportion of the responsibility for the impacts. There are many possible explanations for this pattern, but much of the research in the United States focuses on political ideologies of state governments, and to push partisan goals. I will explore these potential drivers in Part 2.

Legislative preemption can come in many forms, grouped under express or implied categories. The description of these forms arises through the analysis of the conflict, similar to how there are different types of paramountcy in Canada. The definition of these different forms is heavily researched and debated in the United States, with numerous categories, types, and connections. However, in applying these to a Canadian context, I chose to simplify this research, but understanding the typology of preemption is valuable in learning how to identify examples. A summary of my categorization is below

Express preemption types are any clear contradiction or conflict based on what is expressly written in the statute, that does not require the court to enter an intellectual exercise to construct the legislature’s presumed intent.

• express: state law expressly prohibits local laws on a certain subject
• impossibility: the conflict arises from the impossibility of a person to comply with both laws
• vacuum: expressly prevents municipalities from regulating in an area that also lacks state regulation, which acts to deny regulation in the area entirely
• floor:  imposes a regulatory baseline or minimum standard, and municipalities are only permitted to regulate where they impose higher requirements
• ceiling:  imposes a regulatory maximum and does not allow municipalities to regulate to exceed the state standard

Implied preemption types arise where the state’s intentions are less clear, and the conflict must be analyzed through the effects of the legislation or the intentions of the drafters.

• material impediment or obstacle preemption: local laws functionally create material impediments or obstacles for the implementation of state policy
• occupied field: "where state regulation is so extensive that “state law has occupied the field leaving no room for local legislation”

Lawyers will notice that many of these types of preemption appear to map onto the Canadian paramountcy test, and they would be correct. My paper compares each type of preemption to the paramountcy test over its development to identify whether we already discuss preemption in Canada under another name. This will be explored in Part 2.   

Notes:

1. For other research on preemption in Canada, see Benoît Frate & David Robitaille, Between Expansion and Preemption: Canadian Municipal Powers in an Age of Infrastructure Deficit (Ottawa: University of Toronto’s School of Cities, the Canadian Urban Institute, 2024); & Scott Pasternack, “Local climate change law and multi-level governance in North America” in Benjamin J Richardson, ed, Local Climate Change Law: Environmental Regulation in Cities and Other Localities, The IUCN Academy of Environmental Law Series (Cheltenham, UK: Edward Elgar Publishing Limited, 2012).
2. Christopher B Goodman, Megan E Hatch & Bruce D McDonald III, “State Preemption of Local Laws: Origins and Modern Trends” (2021) 4:2 Perspect Public Manag Gov 146–158, provides a valuable framing of different eras of preemption, identifying patterns in different waves and subject matters, including new climate preemptions.
3. Preemption types defined in the US literature do not perfectly match onto my own typology as there does not appear to be a consensus. For example, much of the literature includes occupied field preemption as a type of implied conflict, while others distinguish it, and some researchers include floor and ceiling preemptions as types of implied preemption instead of a type of express preemption. Complicating this attempt at typology, Courts have applied legal analyses of implied conflict preemption inconsistently, creating legal uncertainty for municipalities regarding their local authorities.