Don’t Be Tempted to Be Preempted

Think you have local authority to regulate in a policy area because state law is silent on the issue? Think again because a court may find you have no authority under the legal doctrine of “implied preemption.”

At this year’s MACo Summer Conference, a panel of experts discussed the implied preemption doctrine, detailed specific examples where county authority has been challenged — including two recent high profile court decisions on solar siting and pesticide regulation, and explained how the results of those court cases affect counties across Maryland.

State Delegate and former Prince George’s County Council Member, Andrea Fletcher Harrison, led the well-attended discussion.

The panel speakers included:

  • Christopher Drummond, Attorney at Law
  • Edward Lattner, Division of Government Operations Chief, Montgomery County Attorney’s Office
  • Kim Haddow, Executive Director, Local Solutions Support Center

The panel explained that the State can pass laws to preempt local authority – sometimes without public debate. Even when it is not explicit in law, Maryland courts have developed a test called “implied preemption” to determine when local governments are prohibited from passing regulations or laws in a subject area.

Given that implied preemption can only be established through litigation, this creates an unnecessary level of uncertainty and expenses for local governments. Challenges to county authority include the right to site solar facilities and gravel pits, regulate tobacco products, and limit pesticide usage in areas frequented by children.

Learn more about conference happenings by using the Twitter hashtag #MACoCon.