State Preemption vs the Right of Local Governments to Protect Our Health & Welfare: Colorado Makes History

Paul Cienfuegos’ September 1st, 2015 Commentary on KBOO Evening News


(His weekly commentaries are broadcast every Tuesday evening. You can view or listen to them all at,, or subscribe via ITunes. Listen to this one HERE.)


Greetings! You are listening to the weekly commentary by yours truly, Paul Cienfuegos.


Today, I’m going to share some extraordinary news about what’s happening in Colorado, where the Community Rights movement has launched its first-ever statewide ballot initiative campaign to amend their state constitution. I’m going to tell you this story through the words of Simon Davis-Cohen, a wonderful New York City based journalist who has been doing a lot of reporting on our movement over the past few years. On August 19, he wrote a piece titled “In Colorado, A Revolutionary New Coalition Stands for Community Rights”. Here’s an excerpt:


In Colorado, local governments cannot raise the minimum wage, pass rent control laws, or ban fracking. A system of state “preemption” - a favorite tool of the fossil fuel industry - stands in their way.


Local activists have long been outspoken about this legal barrier to keeping fossil fuels in the ground. Now, a coalition embodying a range of economic and environmental justice fights is coming together to directly challenge the basis for state preemption: On August 17, a statewide initiative was launched by Coloradans for Community Rights to do just that. It may be the first time that anti-extraction and workers’ rights movements have allied behind a concrete political tactic in modern US history.


The “Colorado Community Rights Amendment,” which needs some 99,000 signatures to qualify for the 2016 ballot, disrupts preemption by granting local governments a constitutional right to raise state standards - empowering them to boost the minimum wage, bolster environmental protections, and strengthen tenant rights, for example. It would recognize the authority of local governments “to enact local laws that protect health, safety and welfare by recognizing or establishing rights of natural persons, their local communities and nature.” …


Crucially, the proposed amendment also elevates local lawmaking above “competing rights, powers, privileges, immunities, or duties of corporations.” This means that if a local law conflicts with a corporations’ constitutional “right,” the local law would prevail - in direct contradiction to our current legal structure, which allows corporations to sue local, state, and federal governments that restrict property rights. The amendment doesn’t read like a manifesto, but it could be revolutionary.


The initiative is part of a multi-state “Community Rights Movement” working to introduce the right to local self-government, and to elevate that right above corporate legal privileges and the state governments that act to protect them. The movement’s work … takes legal council from the Pennsylvania-based Community Environmental Legal Defense Fund. …


In Colorado, the Community Rights Amendment would also undermine the bedrock “private law exception,” which has historically limited local governments’ authority to regulate private relationships between employer and employee or landlord and tenant, for example. It’s this “exception” that provides the ideological basis for preventing cities from raising the minimum wage or passing sick leave ordinances. …


Simon Davis-Cohen continues his article with an interview with Andrea Mérida of 15 Now Colorado, a group supporting the effort to qualify the initiative for the 2016 ballot and fighting to raise the state minimum wage. Andrea explains why a group focusing on a living wage as a human right would choose to partner with a statewide Community Rights campaign challenging state preemption. Here’s a brief excerpt of Andrea’s thoughts:


Rents in the Denver metro area are skyrocketing, and ultimately local governments also need the flexibility to consider further actions such as rent control and breaking up utility monopolies to help workers make ends meet. If we don’t strengthen local rights now, we will be back at the ballot box again soon, because the cost of living could quickly outpace any minimum wage increase.


15 Now Colorado believes that it’s time to recalibrate the way we see ourselves in society. Government exists to serve the interests of workers first, but unfortunately, this is not the reality. Too often the requirements of excessive profit trump the right to live in dignity, and by using our state constitution to change that paradigm, we believe that we can finally create a Colorado that serves everyone.


Again, I’ve been reading excerpts from an article written by Simon Davis-Cohen, a wonderful writer covering our Community Rights movement. You can read more of his stories at


Here in Oregon as in many other states, we also have serious problems with state preemption laws that violate our rights. Portlanders are currently trying to get the local government to raise the minimum wage as Seattle did recently, but they’re barred from doing so because the restaurant lobby convinced the state legislature to pass a minimum wage preemption law in 2001. The Oregon Homebuilders Association is responsible for the state legislature passing an inclusionary zoning preemption ban in the late 1990’s that would have prevented gentrification. And local rent control law-making is also preempted by the state. Perhaps it’s time here in Oregon for our living wage and tenants rights campaigns to pay closer attention to the Colorado Community Rights Amendment that would end this state preemption outrage.


You’ve been listening to the weekly commentary by yours truly, Paul Cienfuegos. You can hear future commentaries every Tuesday on the KBOO Evening News in Portland, Oregon, and on a growing number of other radio stations. I welcome your feedback.


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