Preemption Laws

Preemption of local plastic pollution control ordinances is an increasingly concerning effort that is playing out at the state level of government in the United States. These preemption laws prohibit municipalities from adopting local ordinances that further regulate a particular product, namely bans or fees on carryout plastic bags. These laws apply broadly, often banning all local ordinances that regulate “auxiliary containers” (bags, Styrofoam™, etc.). Preemption laws infringe upon municipal Home Rule as well as regulation rights concerning “local” fields, such as the protection of health, safety, and the power to regulate waste.

This issue encompasses not only plastic pollution but also the loss of local power to corporate interests. The American Legislative Exchange Council (ALEC), where corporate lobbyists and state legislators vote as equals on “model bills” that often benefit the corporations' bottom line at public expense, has made preemption part of its playbook to rein in environmental regulation. The plastics industry has found that it has more power at the state level and has focused legislative efforts on preemption bills in order to block progress at regulating plastic pollution at the local level. ALEC developed a model bill specific to banning local regulation of containers, and versions of it have now passed in many states.

This type of preemption is prevalent because plastic bag bans have their roots in grassroots activism. Twenty states have now preempted plastic regulation on all manner of containers (including polluting Styrofoam™) as well as plastic bags, and much of the preemption legislation is identical. The statewide usurpation of Home Rule is not only happening with bags and foam foodware; there have been attempts to preempt local action on building efficiency rules, fracking, pesticide regulation, medicine take-back programs, and environmental conservation efforts.

Six states enacted preemption in recent years: Arkansas, Montana, Nebraska, North Carolina, Ohio, and West Virginia — most through “auxiliary container” provisions attached to budgets or broader bills. Two states moved in the other direction: Colorado repealed its preemption law, and Pennsylvania's expired, clearing the way for Philadelphia, Pittsburgh, and more than thirty other municipalities. Minnesota's law still preempts bans only; local fees operate in Minneapolis and Duluth.

Preemption also comes in narrower forms the map cannot show. New York, for example, passed a 2017 law blocking New York City's five-cent bag fee — a targeted preemption of a single city's law — before reversing course with the 2019 statewide ban, under which localities may now opt into a five-cent paper-bag fee. The map above shows comprehensive "auxiliary container" preemption in force today; the narrower episodes live in the case files.

Preemption has also been tested in court. Ohio sued Athens over its bag ban and prevailed — State ex rel. Yost v. City of Athens became final in 2025. Montana's supreme court upheld that state's preemption law in late 2024, blocking a voter-approved Bozeman initiative. Kansas's governor vetoed preemption three times, and Lawrence's ban took effect in 2024. In Texas, preemption came from the bench: City of Laredo v. Laredo Merchants Association (2018) read an existing waste statute to bar bag ordinances statewide.

The litigation trackerArchived preemption maps

Not only must we keep a strong on-the-ground presence to continue to pass local single-use plastic bag regulations and foam foodware bans, but we also have to ensure that we have a presence and a voice at the statewide level to challenge the industry lobbyists that threaten to silence local voices and action on the topic of marine plastic pollution. To combat preemption, we should oppose statewide legislation that takes away the right of municipalities to improve their environment and continue to push for strong statewide legislation, like California's statewide bag ban. We also need to make sure that the strongest possible local laws continue to be adopted and that we diligently track the efficacy of local bag bans and fees and demonstrate how these policies effectively change consumer behavior and reduce the amount of single-use plastic pollution in local parks, streets, beaches, and waterways.

Discuss the issue with state and local officials who may already be affected or become affected by a preemption attempt.

Commit to speaking out about preemption as a manipulation of the democratic process and an attempt to take power away from everyday people and families trying to protect their local environment.