THE BLOG
06/28/2016 09:56 am ET Updated Jun 29, 2017

Colorado Preemptions of Local Government: The Need for the Colorado Community Rights Amendment

In Colorado as in other states, it has been observed that very often "Corporations write laws, legislators enact them, and the courts enforce them."

Since the American Legislative Exchange Council (ALEC) began writing state preemption laws to override local bans on tobacco in the 1970's, the group has worked with every kind of industry to draft model state preemption laws to override local governments in the service of the corporate bottom line.

The trend has escalated, said Mark Pertschuk, director of the watchdog group Preemption Watch: "2015 saw more efforts to undermine local control on more issues than any year in history," He noted "....just a few weeks into 2016 state legislative sessions [it became} clear that ending local authority will continue to be the go-to strategy for state legislators and their special interest allies, as a means of blocking earned sick days, minimum wage hikes, tobacco and fracking bans, pro-worker policies, or anti-discrimination laws."

The proposed Colorado Community Rights Amendment is a response to decades-long efforts to suppress local government. The initiative would secure the right of cities and counties to protect their health, safety and welfare without corporate preemption, so long as "local laws do not restrict fundamental rights or weaken existing legal protections for natural persons, their communities, or nature."

The Colorado Community Rights Amendment reinforces the people's basic right to self-government as stated in the Colorado Constitution, Article II Bill of Rights:

"All political power is vested in and derived from the people; all government, of right, originates from the people, is founded upon their will only, and is instituted solely for the good of the whole."

Following is a list of some legislative and judicial preemptions of local government in Colorado.

Colorado Legislative & Judicial Preemptions of Local Government

State Preemption of Community Broadband
Telecommunications companies, i.e., Qwest and Comcast, lobbied the 2005 Colorado legislature to pass state preemption of municipal broadband, pending success of a restricted voter referendum process.

State Preemption of Local Gun Safety Laws
In 2003, an ALEC-NRA model bill for state retroactive preemption of local gun safety laws (SB-03-25) was signed by Colorado Governor Bill Owens, rendering local gun ordinances unenforceable. Denver challenged the preemption law in court, keeping its bans on assault weapons and open firearms carry only after a tie vote in 2006 when a Colorado Supreme Court justice recused herself.

AgGag Laws - Factory Farming
The ALEC model bill, "The Animal and Ecological Terrorism Act" seeks to criminalize as "terrorists" whistle blowers who reveal abusive/dangerous conditions at animal facilities. The Colorado Agricultural Protection Act of 1981 C.R.S. 35-3.5-102 voids any local ordinance "that makes operation of any agricultural operation a nuisance," with narrow exceptions.

Minimum Wage Preemption
A Colorado law SB99-014 passed in 1999 prohibits enactment of a minimum wage by any local governing body, initiative, referendum, or any other process.

Preemption of Bans on Mining with Acidic Chemicals, e.g., Cyanide
Acidic wastewater from cyanide heap leach gold mining at the Summitville Mine in the San Juan Mountains killed off aquatic life in 17 miles of the Alamosa River by 1990. Bans of toxic chemical/canide for mining in five counties - Conejos, Costilla, Gilpin, Gunnison and Summit - the latter challenged by the Colorado Mining Association - were overturned by the Colorado Supreme Court in 2009 on the basis of state preemption of local law.

Preemption of Ban on Fracking
A Greeley ban on oil and gas extraction enacted as a local ordinance in 1985, both by ballot initiative in a home rule city, and by city council action, was overturned by two 1992 Colorado Supreme Court cases, Voss v. Lundvall Bros. Inc and Bowen/Edwards Assoc. Inc. v. Board of County Commissioners of La Plata County, holding that the Colorado Oil and Gas Conservation Act (O&GCA) preempts any outright ban as well as any local regulation that creates an "operational conflict" with O&GCA. Fracking bans and moratoriums in Longmont, Lafayette, Fort Collins and Broomfield have all been challenged in court by the Oil & Gas industry.

Preemption of Rent Control
A 1981 Colorado law prohibiting control of rents by counties and municipalities was enacted as a reaction to a Boulder citizen initiative to enact rent controls. A 2000 Colorado Supreme Court decision held that the state statute prohibiting local communities from enacting rent control preempted a local ordinance enacted by the City Council of the home rule city of Telluride that would have required the building of a percentage of affordable housing in a new development.

Preemption of Plastic Bag Ban
A 1989 Colorado state law, HB 89-1300, prohibits the ban of use or sale of plastic materials or products in Colorado. A bill to overturn that law in 2014 failed. To work around the prohibition of a ban on plastic bags and to reduce waste, a number of communities have imposed fees on plastic and paper bags. Mayor Michael Hancock has said he would veto such an effort in Denver.