The Supremacy Clause – federal law takes precedence over state law


REVERSE PREEMPTIONSINCE THE CONGRESS AND  FEDERAL LAW CLEARLY SAY SLUDGE
USE OR DISPOSAL IS A LOCAL OPTION, federal law trumps state law and preempts ANY state law
which attempts to prevent  communities  from enacting local ordinances when facing the issue of
being forced to serve as disposal sites for toxic/pathogenic sewage sludge from urban and
industrial sources
http://en.wikipedia.org/wiki/Preemption_(law)

In the legal system of the United States, preemption generally refers to the displacing effect that federal law will
have on a conflicting or inconsistent state law.
The Supremacy Clause (Article VI, section 2) of the United States
Constitution states that The Laws of the United States, (which shall be made in Pursuance to the Constitution), shall be
the supreme Law of the land. Thus,
when there is a conflict between a state law and federal law, the federal
law (subject to the Tenth Amendment and Fifth Amendment and other Constitutional Law) trumps – or
"preempts" – the state law.
The term is also sometimes used to refer to the displacing effect state laws might have
on ordinances enacted by municipalities.

Types of preemption
Two situations where preemption claims might arise: express preemption and implied preemption.
  • Express preemption occurs where Congress says within the statute 'we hereby preempt' or uses words of similar
    import. Here, federal laws are explicitly precluding state and local regulations.

CLEAN WATER ACT EXPRESSLY STATES:   - Federal Clean Water Act - “disposal or use of sludge is a LOCAL
determination”

Title 33, Chapter 26, Subchapter IV, Sec. 1345 – Disposal or use of sewage sludge

(e) Manner of sludge disposal – The determination of the
manner of disposal or use of sludge is a local
determination,
except that it shall be unlawful for any person to dispose of sludge from a publicly owned
treatment works or any other treatment works treating domestic sewage for any use for which regulations
have been established pursuant to subsection (d) of this section, except in accordance with such
regulations.”

Code of Federal Regulations – Part 503 – the federal sludge law:
- 40 CFR Part 503 (federal sludge rules) Sec. 503.5(b) a political subdivision of a state  may impose
requirements for use or disposal of
sewage sludge more stringent than part  503 rule.  
  (“political subdivisions” of a state include cities, towns, counties, townships, etc.)

40 CFR Part 503.6  “(b)
 Selection of a use or disposal practice.   This part does not require the selection of
a sewage sludge use or disposal practice.   The determination of the manner in which sewage sludge is
used or disposed is a local determination.”

– 40CFR Part 501 -- State sludge management program regulations = local law can be more stringent

(i) Nothing in this part precludes a State
or political subdivision
thereof, or interstate agency, from adopting or enforcing requirements
established by State or local law that are more stringent or more
extensive than those required in this part or in any other federal
statute or regulatio
n.

The Commonwealth of Pennsylvania does not have the right to preempt, rescind or repeal rights
specifically granted to localities by the Congress, Federal Clean Water Act and by the Code of Federal
Regulations.


  • Implied preemption has, within itself, three sub-categories: conflicts preemption, preemption because state law
    impedes the achievement of a federal objective, and preemption because federal law occupies the field.

Pennsylvania law prohibiting local control over sludge “impedes the achievement of a federal objective”

And federal law obviously “occupies the field” on the issue of local control.


  •        Conflicts preemption is where it is impossible to comply with both the federal statute and the state or local
    law. In this situation, the federal statute must be followed. It is, however, appropriate to have two laws, one federal
    and one state, that differ. The federal law, in this case, may be a minimum standard, while the state enacts a law
    to be more strict. State law, therefore, would not be preempted. Preemption would only occur if the federal and
    state laws were mutually exclusive.

Federal sludge rules clearly grant authority to localities to enact sludge rules more stringent than federal
or state rules.

Federal law and Pennsylvania law are mutually exclusive where Pennsylvania law attempts to rescind the
local control over sludge which is granted by federal law.

  •       The second type of implied preemption is preemption because state law impedes the achievement of a
    federal objective. This type of preemption occurs when a state or local law interferes with a goal or objective
    Congress was trying to attain with a federal statute. The purpose of each law must be determined and compared
    to each other. If both laws are trying to achieve the same goal, federal law will preempt the state or local
    regulation.

Obviously, Pennsylvania law impedes the achievement of a clearly stated federal objective – local control
over use or disposal of sludge.

The reason the sludge bullies (waste companies and state regulators) continually get away with forcing
toxic/pathogenic sludge from urban and industrial sources on unwilling rural communities is because no
lawyer has ever stood up in court and argued that Congress, the Clean Water Act and the Code of Federal
Regulations clearly and definitively provide for LOCAL CONTROL over the use or disposal of sewage
sludge.    And states which preempt localities from exercising local control over sludge are IN VIOLATION of
federal law.


Subject: SUPREMACY CLAUSE FEDERAL LAW TRUMPS STATE LAW - SEARCH TERM:   FEDERAL LAWS  
SUPREMACY CLAUSE  STATE LAWS


http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/preemption.htm

http://www.lectlaw.com/def2/s105.htm

http://www.carreonandassociates.com/articles/supremacy-law.htm


According to LectLaw, Under the Supremacy Clause, everyone must follow federal law in the face of conflicting state
law.
It has long been established that "a state statute is void to the extent that it actually conflicts with a
valid federal statute" and that a conflict will be found either where compliance with both federal and state
law is impossible or where the state law stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress.
Edgar v. Mite Corp., 457 U.S. 624, 631 (1982). Similarly, we have held
that "otherwise valid state laws or court orders cannot stand in the way of a federal court's remedial scheme if the
action is essential to enforce the scheme."

Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987). This is critical
because "a federal district court's exercise of discretion to enjoin state political bodies raises serious questions
regarding the legitimacy of its authority." If Congress expressly provides for exclusive federal dominion or if it expressly
provides for concurrent federal-state jurisdiction, the task of the Court is simplified, though, of course, there may still be
doubtful areas in which interpretation will be necessary.

http://www.thebestlinks.com/Preemption_of_state_and_local_laws_in_the_United_States.html

Preemption of state and local laws in the United States
From TheBestLinks.com
In the United States federal statutes can limit the state's powers by invalidating conflicting state and local laws. One way
that this can be achieved is by Congress passing a law, preempting state or local law. State powers can also be limited
by the Supremacy Clause.
Article VI, section 2 of the United States Constitution states: 'This Constitution, and the Laws of the United States which
shall be made in Pursuance there of: and all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary not withstanding.' This clause is commonly referred to as the
'Supremacy Clause.' The Supremacy Clause says that federal law is the 'Supreme Law of the Land.' This means that if
a state or local law is in conflict with a federal statute, the federal statute will preempt the state or local law.
Two situations where preemption claims might arise: express preemption and implied preemption.
Express preemption occurs where Congress says within the statute 'we hereby preempt.' Here, federal laws are
explicitly precluding state and local regulations.
Implied preemption has, within itself, three sub-categories: conflicts preemption, preemption because state law impedes
the achievement of a federal objective, and preemption because federal law occupies the field.
Conflicts preemption is where it is impossible to comply with both the federal statute and the state or local law. In this
situation, the federal statute must be followed. It is, however, appropriate to have two laws, one federal and one state,
that differ. The federal law, in this case, may be a minimum standard, while the state enacts a law to be more strict.
State law, therefore, would not be preempted. Preemption would only occur if the federal and state laws were mutually
exclusive.
The second type of implied preemption is preemption because state law impedes the achievement of a federal
objective. This type of preemption occurs when a state or local law interferes with a goal or objective Congress was
trying to attain with a federal statute. The purpose of each law must be determined and compared to each other. If both
laws are trying to achieve the same goal, federal law will preempt the state or local regulation.
The final type of implied preemption is preemption because federal law occupies the field. In this situation, one must
look at Congress's intent, and whether the federal law was meant to be exclusive in that area. The most common
examples are in areas of foreign policy and immigration.

http://en.wikipedia.org/wiki/Preemption_(law)
Preemption (law)
From Wikipedia, the free encyclopedia
Jump to: navigation, search
This article is about the power of federal law in the United States
In the legal system of the United States, preemption generally refers to the displacing effect that federal law will have on
a conflicting or inconsistent state law. The Supremacy Clause (Article VI, section 2) of the United States Constitution
states that the Constitution and other federal laws are the "supreme Law of the Land". Thus, when there is a conflict
between a state law and federal law, the federal law trumps--or "preempts"--the state law. The term is also sometimes
used to refer to the displacing effect state laws might have on ordinances enacted by municipalities.

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http://www.steefel.com/clients/news/detail.aspx?id=064da945-eb9d-4439-b5b9-05fded467e3e
March 2, 2005
Federal Law Trumps State For Arbitrators

A Panel Sides With Stock Exchanges Over Ethics Rules

By Donna Domino

THE DAILY JOURNAL - Two national stock exchanges scored a significant victory Tuesday in their fight against
California's strict new ethics rules for
arbitrators after a federal appeals panel found the rules are pre-empted
by federal laws.

The unanimous ruling by a panel of the 9th U.S. Circuit Court of Appeals upheld a decision by U.S. District Judge
Saundra B. Armstrong of Oakland regarding the pre-emption issue. While the 9th Circuit's ruling derailed the ethics
rules in securities cases, the rules remain intact for other kinds of disputes. Credit Suisse First Boston Corp. v.
Grunwald, 03-15695.
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http://www.law.com/jsp/article.jsp?id=1147856730768
2nd Circuit: Federal Statute Trumps State on Peer Review Records
Mark Hamblett
New York Law Journal
May 18, 2006
Printer-friendly  Email this Article  Reprints & Permissions
A federal statute requires the release of a medical facility's peer review records despite state law shielding their
confidentiality, the 2nd U.S. Circuit Court of Appeals has ruled.
Clearing the way for the release of peer review records sought for investigations into the deaths of two mentally ill
patients at state-administered hospitals, the circuit said the plain language of the Protection and Advocacy for
Individuals with Mental Illness Act, 42 U.S.C. §§10801-10851, trumps state law.
http://www.graydon.com/index.cfm/fuseaction/news_events.newsletter_detail/object_id/b919ddfb-3a3c-
42ea-ae4a-8a1d08ad976f
E-Commerce News

Downloader Pays $750 Per Song;
Federal Law Trumps Minnesota Wireless Statute
January 31, 2006
FEDERAL LAW TRUMPS MINNESOTA WIRELESS STATUTE
A state law designed to protect consumers from changes in wireless contracts is preempted by the 1934 Federal
Communications Act (ironic considering that in 1934 no one could have even imagined the concept of "wireless"),
according to a federal appellate court sitting in Minnesota.  The court determined that the state law was preempted
because it had a direct impact on the rates that providers may charge subscribers.

Under the Supremacy Clause, everyone must follow federal law in the face of conflicting state law. It has
long been established that "a state statute is void to the extent that it actually conflicts with a valid federal
statute".    Federal law clearly gives localities the right to regulate the use or disposal of sewage sludge in
their communities.  By what authority do states enact laws which usurp and preempt the ‘local control’
rights granted by Congress to local communities?



http://www.carreonandassociates.com/articles/supremacy-law.htm
"The Supremacy Clause and Federal Preemption
State Law versus Federal- Which rules?

[THE SUPREMACY CLAUSE Article. VI. This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws
of any State to the Contrary notwithstanding.]

Any federal law does trump any conflicting state law  Issues like credit reporting and debt collector abuse are
researched by millions of consumers each and every day. Commonly, there is confusion as to whether the
law to consider is a state or federal law and which one will finally rule. The Supremacy Clause in the
Constitution explains that federal law always trumps state law which means federal always wins if there is a
conflict between the two. If there is no conflict then the state law will be used but if there is any question
or conflict of the two reading as the same, then the federal rule would win. "

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http://blog.washingtonpost.com/rawfisher/2008/01/preservation_police_keep_infir.html
"As for Ms. Kendrick's statement that "the city must follow federal law," it should also be reminded that per the US
Constitution "powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people." Granted, there are a lot of laws at all levels that may be in conflict
that often get worked out before going to court, but it is in fact the state/local laws that should trump Federal laws
(granted, DC is not a state)."

"THAT is the most ridiculous piece of nonsense I've ever read. We fought a civil war to determine that
federal law is supreme, and any student of government can recite Dillon's Rule. Federal law trumps state
law, which trumps local law. Period.
And DC can't even pass a parking ordinance without the tacit approval of Congress.

And all of the above examples trump the Office of Historic Preservation, which is cruisin' for a bruisin'."


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CELDF - ON DILLON'S RULE AND LOCAL CONTROL:

http://www.celdf.org/HomeRule/WhatisHomeRule/tabid/114/Default.aspx

The first part of Dillon’s Rule states that local governments have only three types of powers:

those granted in express words,
  [the Federal Clean Water Act  expressly STATES "disposal or use of
sludge is a
LOCAL determination" ] those necessarily or fairly implied in or incident to the powers
expressly granted, and those essential to the declared objects and purposes of the corporation, not simply
convenient, but indispensable.

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VIRGINIA - COURT CASE 2001 - FEDERAL LAW TRUMPS STATE LAW
http://www.baller.com/pdfs/bristol-dct.pdf

145 F.Supp.2d 741
(Cite as: 145 F.Supp.2d 741)
United States District Court,
W.D. Virginia,
Abingdon Division.
CITY OF BRISTOL, VIRGINIA,
Plaintiff,
v.
Mark L. EARLEY, Attorney General,
Defendants.
No. 1:00CV00173.
May 16, 2001.

Virginia city asserted federal preemption of state law prohibiting it from providing fiber
optic telecommunications services to public. On city's motion for summary judgment, the
District Court, Jones, J., held that:
(1) state attorney general was proper party defendant,
and (2)
statute was preempted by federal Telecommunications Act of 1996 provision which
proscribes any state law that effectively prohibits "any entity" from providing telecommunications
services. Motion granted.
*************************************************
http://law.wustl.edu/landuselaw/tdr_boul.html


Statutory authority is always the first question for a county, at least in Colorado. Colorado is a Dillon-rule state,
requiring express, or necessarily-implied, statutory authority for all actions taken by non-home rule governments. .
.  
(  the federal Clean Water Act expressly states sludge use or disposal is a local determination . . . )

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The Supremacy Clause and Federal Preemption This means of course, that any federal law--even a regulation
of a
federal agency--trumps any conflicting state law. Preemption can be either express or ...
www.law.umkc.edu/faculty/projects/ftrials/conlaw/preemption.htm - 12k - Cached - Similar pages - Note this

Congress made a decision to "occupy the field" when it stated sludge use or disposal is a local
determination . . .

"The Court has to look beyond the express language of federal statutes to
determine whether Congress has "occupied the field" in which the state is
attempting to regulate, or whether a state law directly conflicts with federal
law, or whether enforcement of the state law might frustrate federal purposes.
Federal "occupation of the field" occurs, according to the Court in

Pennsylvania v Nelson (1956), when there is "no room" left for state

regulation.  Courts are to look to the pervasiveness of the federal

scheme of regulation, the federal interest at stake, and the danger

of frustration of federal goals in making the determination as to

whether a challenged state law can stand. "

************************************************************************

http://www.law.com/jsp/article.jsp?id=1147856730768

"The definition of "records" in §10806(b)(3)(A), she said, "is not limited in the way the department suggests and

includes both reports prepared by staff of a facility and reports prepared by an investigative agency describing
incidents of abuse."

The circuit then agreed with Squatrito that the federal law pre-empts the state law. The court said it did not
see an actual conflict in this case but the department insisted there was a conflict anyway.

"To the extent that there is a conflict," Sotomayor said, the federal law governs.

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http://www.cnn.com/2005/LAW/06/06/scotus.medical.marijuana/index.html

Supreme Court allows prosecution of medical marijuana
By Bill Mears
CNN Washington Bureau

The decision means that federal anti-drug laws trump state laws that allow the use of medical marijuana, said CNN
senior legal analyst Jeffrey Toobin. Ten states have such laws.

"If medical marijuana advocates want to get their views successfully presented, they have to go to Congress; they can't
go to the states, because it's really the federal government that's in charge here," Toobin said.

At issue was the power of federal government to override state laws on use of "patient pot."

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http://goliath.ecnext.com/coms2/gi_0199-508736/Federal-court-rules-FIRREA-trumps.html

Publication: Valuation Insights & Perspectives
Publication Date: 22-MAR-04
Delivery: Immediate Online Access
Author:

Article Excerpt
States cannot require the use of a certified appraiser for transactions below the de minimis level.
So ruled a federal
district court in a March 31, 2004, decision that found that to the extent the Financial Institutions Reform,
Recovery and Enforcement Act conflicts with Pennsylvania state law, FIRREA supercedes....
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http://www.nytimes.com/2008/02/20/business/apee-scotus-smoke.html?partner=rssnyt&emc=rss


By THE ASSOCIATED PRESS
Published: February 20, 2008
WASHINGTON (AP) — The
Supreme Court has invalidated parts of Maine’s law barring Internet tobacco sales to minors.

In a unanimous decision, the court said Wednesday
that Maine cannot impose a regulatory scheme on
transportation companies
delivering tobacco products directly to consumers. The justices said federal
transportation law blocks the states from doing so.

The state of Maine argued that federal law does not pre-empt state regulation for public health and safety.
The 1st United States Circuit Court of Appeals in Boston disagreed, rejecting Maine’s argument that the
federal law trumps state law only when it comes to traditional economic regulation of carriers.

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http://cannabisnews.com/news/19/thread19913.shtml



Posted by CN Staff on November 29, 2004 at 21:05:24 PT
By David G. Savage, Times Staff Writer
Source: Los Angeles Times  

Washington -- The Supreme Court on Monday confronted a dispute between California's medical marijuana law and
federal anti-drug policy, with a Bush administration lawyer arguing that the
government's zero-tolerance law
trumps the state measure.
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It's State Law vs. Federal Law in MMJ Case