Federalism: How the Principle Works on State and Local Levels. (Legal Briefs)

Article excerpt

Federalism is the horizontal division of governmental power between the federal government and state governments. There is, however, a supremacy clause in the U.S. Constitution, Article VI, which provides that the Constitution and properly enacted federal laws and treaties are superior to all state and local laws. State and local laws are preempted if they conflict with federal law. (1)

Occasionally, conflicts arise between a state and its local governments. At one time, environmental health personnel believed that a local government could have any ordinance as long as it was as stringent as or more stringent than state law. That belief is incorrect in many situations.

This column has looked at preemption of local ordinances by state law on several previous occasions. (2) Both cases in this month's column address preemption. Case #1 returns to Chatham County North Carolina, and its swine ordinances and rules. Case #2 is about a licensing ordinance for septic-tank installers in Hopkins County, Indiana.

Case #1: North Carolina Counties May Not Regulate Swine Farms (3)

North Carolina has a Swine Farm Sitting Act and an Animal Waste Management Systems Act, and has regulations promulgated thereunder. Those acts are administered by the state Environmental Management Commission.

Nonetheless, the Chatham County Board of Commissioners and its board of health decided that the county wanted additional, local control over swine farming and enacted an ordinance to regulate swine farming and a zoning ordinance to regulate the location of swine farms. The goal was to regulate the operation, construction, and expansion of swine farms. A swine farmer had to obtain a permit and comply with all federal, North Carolina, and local laws and regulations. Local regulations established setback distances and buffer zones more stringent than state requirements. The county also set financial-assurance requirements and prescribed semiannual well tests. Thereafter, the county board of health established swine farm operation rules virtually identical to those of the ordinance.

Initially, a trial court upheld the ordinances and rules. Then, the court of appeals held the swine ordinances and board of health rules invalid because they were preempted by state statute, but upheld the zoning ordinance. On a second appeal, the North Carolina Supreme Court invalidated all the county ordinances and rules regulating swine farming.

Generally, a county may regulate activities and facilities even where a general, statewide law exists unless there is a direct or implied conflict with state law. If such a conflict arises, state law prevails regardless of whether the local ordinance is more stringent. One type of conflict arises when the state law either expressly states that it preempts local law or when the statute implicitly shows that the legislature intended to implement statewide regulation on a subject and exclude local regulation.

Counties are creatures of the state and have only those powers granted them by the state legislature. They have no inherent powers. One power given by the North Carolina legislature to local boards of health is to adopt rules more stringent than those of the Environmental Management Commission if "a more stringent rule is required to protect the public health."

The North Carolina Supreme Court held that the state Swine Farm Sitting and Animal Waste Management Systems Acts showed "a clear legislative intent to provide a 'complete and integrated regulatory scheme.'" The court reached this conclusion after reviewing statements of "purpose" and "intent" in the statutes. For example, one statement of purpose was that pork production was important to the economic stability of the state but that the statute recognized the rights and interests of adjoining landowners. The court was concerned that if each North Carolina county adopted its own regulations, it might unbalance the plan established by the statutes for encouraging economic development while protecting the environment, might elevate neighboring landowners' concerns over swine farmers' needs, and might create unreasonable impediments to swine farming. …