Climate change: Republicans and gas industry use preemption to block action

When Regina Romero took office as the Democratic mayor of Tucson, Arizona, in 2019, she wanted her city to take action on climate change. Local building codes might have been a logical place to start: In the US, some 70 million buildings rely on fossil fuels that warm the planet, such as oil and gas, for heating and cooking. They generate a hefty 13 percent of national greenhouse gas emissions.

While many answers to climate change require national and even international action, cities often have the unilateral power to craft local rules like building codes. But before the city of Tucson could even look at possible building reforms, the Republican-led state legislature took away its power to do so — by passing a state law that natural gas utilities are “not subject to further regulation by a municipality.”

Supporters of the Republican bill were trying to beat climate advocates to the punch and “preempt” restrictions on fossil fuels. “We wanted to get ahead of what we viewed as an economically damaging trend, and stop it before it could gain a foothold here,” says Garrick Taylor, a spokesperson for the Arizona Chamber of Commerce and Industry, one of the lobbying groups that supported the bill.

With those few lines of text, Arizona blocked a path for cleaning up a significant source of Tucson’s climate pollution — even as nations around the world are racing to transition to cleaner energy and slow disastrous climate change.

The Arizona law “made it more difficult for local governments to act on climate change,” Mayor Romero said in a statement to Vox. The law is “limiting the pool of potential policy solutions we can enact … tying the hands of local officials in Arizona, inhibiting progress and innovation in our cities and towns,” she added.

Arizona was the first of many US states where “localities are cut off at the knees, because they’re in states where lawmakers are hostile” to these kinds of climate regulations, says Sheila Foster, a Georgetown University professor who specializes in urban environmental law.

Interest groups for the natural gas industry, worried about losing energy customers, have now promoted bills in half the country to strip cities of basic powers to set greener building codes and help phase out fossil fuel pollution. These “preemption” laws have swept through 20 state legislatures; three more states have bills pending this year.

Rebecca Leber/Vox

American government has always involved power-sharing between federal, state, and local governments. When federal and state laws clash, the federal law typically “preempts” the state law, and the state law must give way. Similarly, state governments often have the power to preempt laws passed by local governments.

But legal scholars say that the wave of state laws preventing local climate action and other progressive priorities, which they call “new preemption,” is different. States are increasingly using preemption as a partisan tool that prevents any regulation on a given issue. Foster likens it to a “partisan hit-job,” while University of Virginia law expert Richard Schragger calls it an “attack on American cities.”

Local policies like building codes may seem unimportant in the larger context of the climate crisis, but they turn out to be a hidden linchpin in the fossil-fuel economy. Your home may depend on oil or gas for heating, power, and various appliances. You may pipe gas, for example, directly into your kitchen stove.

Even as President Joe Biden tries to change the country’s course with wide-ranging climate policies at the federal level, Republicans and the fossil fuel industry have been wildly successful at propping up gas on the state level. And because local action is critical to meeting national and international goals, these tactics could pose a threat not only to climate activists’ ambitions, but to the future of the planet. They show that Republicans and their fossil fuel allies can block climate action even without controlling Congress or the White House.

Republicans are using a partisan tactic to quietly deregulate US cities

Americans who may not be familiar with the term “preemption” are still feeling its sweeping effects.

The strategy of state-by-state preemption was pioneered in part by the tobacco industry, which wanted to stem a flood of smoking regulations in the 1990s and 2000s. It has been advanced by the National Rifle Association to restrict gun regulations in cities.

Republicans have also used this strategy during the pandemic. In April 2020, Florida’s Republican governor signed an executive order that said it overrode “any conflicting official action or order issued by local officials in response to COVID-19.” Governors in Georgia, Arkansas, and Mississippi followed suit. Other Republican-controlled states, like Texas, have set policies that stop cities from setting mask and vaccine mandates.

There’s an irony to this emerging conservative playbook: Lawmakers on the right have often argued — on issues as varies as guns, voting, the environment, and public health — that the federal and state government should not overreach by encroaching on local rights to govern. With new preemption, conservative lawmakers are arguably doing what they complain about: stripping local leaders and voters of their autonomy.

Now Democratic lawmakers are complaining about Republican overreach. A pending state preemption bill in the Pennsylvania legislature, for example, would limit Philadelphia’s ability to encourage energy efficiency and electrification. Derek Green, a member of the city council, worries that the bill could create “artificial restrictions” that tie local regulators’ hands.

“It does not help constituents in this city,” Green said. “It creates an inaccurate market, because it doesn’t allow you to continue to be creative and innovative in local ideas and opportunities.”

The US can’t afford to cut cities out of the fight against global warming

Some US cities responded to the Trump presidency by becoming leaders in local climate action. In 2019, environmentalists heralded Berkeley, California, as the first city to pass an ordinance requiring all new construction to be powered by electricity instead of gas. Berkeley helped prove that despite President Trump’s rollback of national climate policies, progress on climate goals could accelerate locally.

As of September 2021, at least 50 other cities have followed suit, passing variations on new building codes that would help to phase out fossil fuels in their building sectors.

Together, this kind of local action can make a monumental difference in addressing climate change. Policies that cities, states, and businesses already have on the books are expected to lower the country’s greenhouse gas emissions by almost a fifth in the next five years. More ambitious policies could achieve 37 percent cuts by 2030, according to a 2020 report from the climate advocacy group America’s All In.

Without help from local governments, even the ambitious climate proposals in Biden’s $3.5 trillion reconciliation package won’t be enough to cut US emissions by half in the next decade.

One powerful way to shrink these emissions would be to embed clean technologies in new construction. For example, it’s cheaper to outfit buildings from the outset with electric heaters and stoves than replace them later on. The world’s top climate science organization, the Intergovernmental Panel on Climate Change, wrote in 2018 that the “buildings sector is characterized by very long-living infrastructure,” so “immediate steps are hence important to avoid lock-in of inefficient carbon and energy-intensive buildings.”

Robert Nickelsberg/Getty Images

In other words, it often takes many years for anyone to upgrade dirty technology or remodel an older home or office. Gas-powered buildings will always pollute, while electrified buildings will become cleaner as the power sector switches to renewables.

Local climate policies can only make progress if state laws don’t get in the way — and Republicans have been very effective at winning control of state governments. “You’ve got these blue islands — cities and urban areas — getting bluer, and wanting more progressive policy in red states, where the state leaders don’t agree,” Foster says.

The natural gas industry sees preemption as key to its survival

Republicans who support preemption bills throughout the country say they’re not preempting local governance, but fighting for “energy choice,” arguing that a city shouldn’t pick and choose what energy sources customers rely on. They say they’re preventing extreme environmental priorities from engulfing states and raising energy bills for consumers.

“We have been able to observe what happens in cities like Berkeley, California, that take these radical steps to tell people: ‘This is what you will use, whether you like it or not,’” said Mark Finchem, an Arizona state representative, in a 2020 floor debate, NPR reported.

“Activists across the nation, even right here in Florida, are pursuing bans on natural gas as an energy source,” said Josie Tomkow, a Florida state representative who introduced a 2021 preemption bill that is complicating city campaigns for clean energy.

Their stance closely mirrors arguments that seem to have originated in the natural gas industry. In 2019, the chair of the nation’s top natural gas trade group, the American Gas Association, suggested that the industry was under siege from environmental regulation.

“The current narrative has shifted from attacking production and transmission of natural gas, e.g., anti-fracking and anti-pipelines, to removing energy choice for communities and limiting or prohibiting customer access to natural gas,” the chair said, according to meeting minutes that the watchdog Climate Investigations Center obtained by public records requests.

The map below, from a 2020 briefing for an American Gas Association board meeting, shows where members of the trade group campaigned for preemption laws. According to the map, gas utilities in states highlighted in turquoise — Arizona, Louisiana, Tennessee, and Oklahoma — worked to pass “legislation to protect consumers’ energy choice.” The association was directly involved in at least one state, Tennessee, asking a utility over email to support the bill, the Guardian reported.

Climate Investigations Center public records request

A spokesperson for the American Gas Association told Vox that the trade group was “supportive of the effort in states to produce a choice of utilities for their constituents.”

“We’re not actively involved in any of the efforts,” the spokesperson added, though the group’s documents listed them as a priority in 2020. One of the association’s top goals that year was to “expand efforts at the federal, state, and local levels to ensure policies, regulations and other initiatives include the option of natural gas for consumers and preserve customer choice of energy,” the briefing says.

Richard Meyer, an energy markets and standards analyst for the American Gas Association, told Vox that states should be “keeping all options on the table,” arguing that they would not necessarily reduce their greenhouse gas emissions by eliminating gas in buildings.

Climate advocates told Vox that arguments like Meyer’s seem deliberately short-sighted. Right now, it’s true that some buildings might switch from natural gas to electricity and wind up drawing energy from coal or gas power plants. But in the decades or even centuries that these buildings are around, the grid will get cleaner, and so will electrified buildings.

Calling these bills “energy choice” legislation is also misleading, says David Pomerantz, director of the environmental group Energy and Policy Institute. A building’s energy source is not usually an individual’s decision to start with, because the infrastructure that’s available depends on policies in their zip code. “No one person is drilling for gas in their backyard and piping it into their kitchen,” he says.

The bottom line is that the more new buildings that pipe in fossil fuels like natural gas, the slower the transition to alternative sources of energy, and the less time the world has to stave off climate catastrophe.

The history of preemption shows how dangerous this tactic could be

Before it empowered state Republicans and the gas industry, “preemption was a critically important part” of shielding the tobacco industry from regulators, according to Allan M. Brandt, a Harvard historian of medicine who wrote “The Cigarette Century.” Big Tobacco helped block many cities from banning smoking in public spaces during the 1990s and 2000s, for example, as part of a strategy that’s now known as the “tobacco playbook.”

“Other incredibly harmful industries have followed this idea of preempting other forms of regulation, through agreements that looked like they were positive, but what they really did was restrict future regulatory legislation and action,” Brandt says.

The tactic gained steam in the 2010s, starting when the Tea Party helped Republicans win state legislatures across the country. As governors and legislatures have gone red, preemption has helped them achieve “deregulation without replacement,” says Richard Briffault, a Columbia Law School professor who studies local governance.

Lobbying interests use this tactic to block the will of voters, Briffault says, and tend to focus on state politics instead of launching individual fights in hundreds of cities across the country. By concentrating on the states, where they have more power, lobbyists can concentrate their considerable resources on the politicians already listening, instead of trying to gain influence locally.

“This is a pretty tried-and-true playbook,” says Carroll Muffett, president of the Center for International Environmental Law. American Legislative Exchange Council, a lobbying group that advances corporate legislation at the state level, has pushed preemption bills in dozens of states.

Over the years, lawmakers have used state preemption to target local bans on plastic bags, straws, and fracking, as well as local efforts to increase the minimum wage. “We have certain cities across the states trying to implement their own community-level minimum wage policies,” said Taylor, the Arizona Chamber of Commerce and Industry spokesperson. He said his organization supports preemption of laws and regulations that, in their view, causes state-wide “disruption” and “bureaucracy.”

When you understand the playbook, you begin to see variations on it everywhere. In Berkeley, the gas utility SoCalGas has argued in a state lawsuit — along with the National Restaurant Association — that Berkley’s codes conflict with federal law and should be thrown out. In Spokane, Washington, local gas utilities backed a local referendum to stop the city from pursuing cleaner building codes (a Washington state court recently threw out the referendum).

Federal lawmakers have also attempted to attach preemption to national legislation: Sen/ John Barrasso (R-Wyo.) offered an amendment to the infrastructure bill that would have prevented cities from using federal funds that limit natural gas, S&P Global reported. So far, these efforts have been unsuccessful.

Erik McGregor/LightRocket via Getty Images

The state-by-state trend has continued, however. Texas passed a preemption law earlier this year, and the city of Austin has been feeling its effects. A council member in Austin, Greg Casar, says that the Texas preemption law has hurt the city’s efforts to ensure new building projects don’t hook up to gas pipelines. The preemption law “does reduce the tools that we have to require new buildings to be hooked up to electricity, rather than to gas,” Casar told Vox.

Austin still has some tools, like using tax benefits to encourage electric hookups, but the city can’t penalize builders for hooking up to gas. It’s difficult to change a city with incentives alone, Casar says. “It’s always harder to reach goals, not having both carrots and sticks,” he says.

Short of changing the political makeup of state legislatures, cities don’t have much recourse to preemption. In most cases, it’s not clear Republicans are breaking any laws with preemption bills, even as their tactics get bolder and bolder. As the gas industry runs out of thoroughly red states to advance preemption in, more have popped up in states like Pennsylvania and Colorado.

“What’s most worrying is the continued trend of the legislature favoring oil and gas interests over taking any form of action on climate change,” Casar says. “It’s one thing for them not to do much — it’s another for them to actually get in the way of what cities are able to do.”