The issue of preemption has loomed large in the willingness of local government to impose restrictions on local sources of excessive noise and pollution. Rick Reibstein, co-chair of Quiet Communities’ Legal Advisory Council, sheds light upon the issue. 

A case in New Jersey , New Jersey Landscape Contractors versus Maplewood,  illustrates the situation a city may face if it tries to restrict the use of gas leaf blowers.  The landscape contractors argue in a brief filed October 20 in US District Court that the town, in applying restrictions only to commercial entities, unfairly discriminates under the US and NJ constitutions and violates the principle of preemption.

Discrimination against a class must have a rational basis or it can be struck down.  In NJ as in other communities, there is a sound rational argument for regulating commercial entities only. The machines they use are “commercial grade,” more powerful than residential grade counterparts. Commercial service providers may spend all day, every day, emitting noise and pollutants, and are responsible for the bulk of noise and pollution attributed to these types of machines. The industry has stated that the noise levels for most of its equipment exceeds occupational safety standards. Machines are frequently used out of compliance with manufacturer and industry recommendations, multiplying noise and emission levels.  As such, the routine use of these machines has the potential – indeed the likelihood – of far greater impacts on the community than occasional use by residents.  In addition, there is ample precedent for laws that only apply to commercial entities. These include hazardous waste laws and the requirement to work in a lead-safe manner when disturbing paint in residential or child-occupied facilities.

The complaint also claims that Maplewood is preempted from regulating emissions from leaf blowers because of the federal Clean Air Act.  The complaint points out that during the town’s deliberations on the ordinance, reducing emissions was cited as the rationale. But that does not mean the ordinance is  preempted.  The courts require that Congress’s intent to preempt be clear.  Although the Clean Air Act gives the authority to regulate the manufacturing of engines, (so engine manufacturers would not have to deal with a patchwork quilt of requirements defined different in each state), the general strategy of the act is for the EPA to set a minimum floor for clean air for every citizen, while states can go further, and do more to protect the air their citizens breathe.

When Maplewood restricts the time, place and use of leaf blowers, it is not regulating how engines are made.  Everyone is familiar with the fact that states regulate the operation of cars on their roads, but not how the cars are made.  The Clean Air Act contains language (at 42 US Code, Section 7416) to make sure the preemption that it does include is not interpreted more broadly than intended, specifically providing for the retention of state authority, (where not specifically preempted), “to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution.”  The main purpose of the Clean Air Act was not to prevent state action, but to bring about clean air, and the law is regarded as a primary example of “cooperative federalism”, in which both the state and federal authorities are in play.

In the 2013 case Association of Taxicab Operators USA v City of Dallas, Dallas, taxi cabs powered by compressed natural gas were given the privilege of going to the head of the line at the municipal airport. The Association claimed that this was an attempt to “enforce [a] standard relating to the control of emissions”, and was thus preempted by the Clean Air Act.  The appeals court referred to Supreme Court precedent that  preemption applies to mandatory pollution control standards relating to the “emission characteristics of a vehicle or engine;”  such as, “the vehicle or engine must not emit more than a certain amount of a given pollutant, must be equipped with a certain type of pollution-control device, or must have some other design feature related to the control of emissions.” Municipal ordinances that pertain to time, place and use of nonroad engines do not interfere with those standards.  The court also affirmed the long-standing principle that traditional police powers, such as local ordinances, are not to be superseded except by the “clear and manifest purpose of Congress.”  The Association counter-argued that the ordinance was coercive and, in effect, a way to make companies use cleaner engines – something only the EPA had the authority to do.  But the court also examined precedent that “a local law is not preempted when it only indirectly regulates parties within a preempted field and presents regulated parties with viable, non-preempted options.”

The parallel for landscape companies is that when  faced with restrictions on leaf blower use, this does not prevent them from pursuing all viable means of doing their work.

Quiet Communities would be interested to hear from communities proposing or instituting regulations pertaining to leaf blowers, whether they have been sued, or received communications warning of legal action.

By Rick Reibstein, Co-chair, Quiet Communities Legal Advisory Committee

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