Federalism: how the principle works on state and local levels. (Legal Briefs).

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.

The court recognized that the county board of health regulations were more stringent than the North Carolina Environmental Management Commission's regulations. The county regulations were invalid, however, because they were not "required to protect the public health" and directly conflicted with state law.

Case #2: License for Septic-Tank Installers Not Valid (4)

The Indiana State Board of Health has rules on the design, construction, installation, maintenance, and operation of residential onsite sewage disposal systems. The rules require installation permits and inspections. Those rules are to be administered by local boards of health. A local board may adopt its own rules on these matters "only after the commissioner has confirmed in writing that the ordinance does not violate this rule or state sewage disposal statutes."

Indiana also has a Home Rule Act that allows counties to exercise all powers necessary or desirable in the conduct of their affairs. That act specifically prohibits local regulation of activities regulated by a state agency, however.

In 1986, the Tipton County, Indiana, board of health adopted rules requiring all septic-tank installers to be licensed. A license would last one year. In addition, an installer had to have and maintain a certificate of insurance. If an installer violated the ordinance, the license could be revoked. The county rules were not submitted to the Indiana State Board of Health.

One installer had his license suspended for one year for repeated failure to obtain installation permits, to have his work inspected, and to comply with minimum installation specifications. A trial court upheld the suspension. The Indiana Court of Appeals, however, reversed it.

The court of appeals found county regulation of septic-tank design and installation invalid because the state board of health already regulated those processes. The county had had the opportunity to have its program reviewed and approved in writing by the state board, but it had not done so. The remaining issue in the case was whether the entire county ordinance was invalid because part of its program intruded into an area regulated by a state agency, or whether the licensing provision was valid because there were no state regulations on licensing septic-tank installers.

The county ordinance required compliance only with the county ordinance in order for a person to keep an installer's license. Therefore, the court invalidated the entire ordinance and licensing program from its inception:

Since the licensing provision is dependent upon the other invalid provisions of the county ordinance, we find that the licensing provision is also invalid. It is not in itself complete, sensible, and capable of execution.... Moreover, because the county ordinance's licensing provision is invalid, Hopkins could not have been legitimately licensed under that ordinance in the first place.

The court said that state law would not, however, prevent a local ordinance from regulating the licensing of septic-system installers if the issuance and revocation of a license were based on state regulations or on a local ordinance approved by the state board of health.

Editor's note: Readers who have questions about cases discussed in Legal Briefs may contact Mr. Sikora by e-mail at <[e-mail]>.

References

(1.) Frank P. Grad, Public Health Law Manual, 21-23 (2nd ed., American Public Health Association, 1990).

(2.) Vincent A. Sikora, "Public Agencies-- Authority and Responsibilities," Journal of Environmental Health, July/Aug. 2001, at 39-40 ("Case #2: Municipality May Ban Smoking in All Food Service Establishments"); "More on Retaliation and on the Public-Health Authority of State and Local Governments," Journal of Environmental Health, Sept. 2001, at 39, 59 ("Case #3: State Law Preempts County Swine Ordinance"); "Case Not Closed-- Issues of Police Authority, Municipal Smoking Bans, and First Amendment Rights," Journal of Environmental Health, Nov. 2001, at 32 ("Case #4: Local Smoking Ban Unconstitutional").

(3.) Craig v. County of Chatham, #270PA01 (N.C. Sup. Ct. 2002) http://www.loislaw.com (7 July 2002).

(4.) Hopkins v. Tipton County Health Depart., #80A02-0106-CV-359 (Ind. Ct. App. 2002) http://www.loislaw.com (7/7/02).