ASHVILLE — When a new energy infrastructure bill was introduced in the Tennessee General Assembly earlier this month, people could be forgiven for paying little attention. Compared to the legislature’s recent follies — an abortion bill that would out-Texas Texas, or a book-banning bill that would override the recommendations of school librarians, or a handgun bill that would let 18-year-olds carry a gun without a permit — an energy-infrastructure bill seems like a big yawn.
Thing is, almost nothing undertaken by the Tennessee General Assembly can be safely overlooked. That boring energy infrastructure bill, which passed the Tennessee Senate last Thursday, would let the state override local laws blocking fossil-fuel projects in their communities. In other words, if this bill becomes law, the state could allow an oil company to run a pipeline through a city over the objections of the city itself.
This may seem like a picayune matter with no relevance outside the state of Tennessee, but it’s exactly the kind of bill that ought to attract national attention — not because it’s happening in Tennessee but because it’s happening, or is poised to happen, in red- state legislatures across the country, according to the Climate Reality Project. Republicans are using rising gas prices as an opportunity to give the fossil-fuel industry whatever it wants in their states, even when their own cities have been trying to protect the environment and their people from that very industry.
Legislative pre-emption is part of a political ground war down here. These routine bills rarely rise to the level of national attention, but their presence explains as much about our national politics — and about what shapes our national elections — as any newly restrictive abortion law or newly lax gun bill does.
Derived from the supremacy clause of the US Constitution, the doctrine of pre-emption allows a higher legal authority to override a law passed by a lower legal authority when the two are in conflict. It is deployed by both Republican and Democratic legislatures, though far more frequently by Republicans in the South, sometimes in unprecedented ways. Tennessee’s legislature uses pre-emption with abandon, even in cases where the state has no reasonable interest in the question. It’s the opposite of the Not In My Back Yard principle. Call it the To Hell With All Y’all Who Didn’t Vote For Me principle.
The infrastructure bill passed by the Tennessee Senate last week was expressly designed to respond to a grass-roots environmental effort that defeated a crude-oil pipeline in Memphis last year, as a report by WPLN News makes clear: “The Memphis situation alerted those folks in this industry to what could happen if planned projects … can be interrupted by municipalities somewhere along the way,” Kevin Vaughan, a Republican representative from Collierville, said during a subcommittee meeting.
That effort, led by Black activists and reported on extensively by the nonprofit news organization MLK50, blocked an oil company with an abysmal safety record from building a pipeline through the historic Black community of Boxtown. The Byhalia Connection pipeline was both a classic example of environmental racism and a dangerous threat to a fragile sand aquifer that provides drinking water to a million people.
In red states, here is what happens when blue cities pass regulations that Republican legislators disagree with: If Nashville passes a law designed to protect neighborhood homes from being turned into short-term rentals occupied by rotating hordes of drunk bridesmaids, the Tennessee General Assembly will introduces a bill that would make the city ordinance impossible to enforce. If the residents of Decatur, Ga., are considering a ban on gasoline-powered leaf blowers, the Georgia General Assembly will consider a bill that bans the banning of leaf blowers.
Not all such bills are voted into law — the leaf blower bill in Georgia is currently in limbo, and we can only hope that public pressure will kill the energy infrastructure bill in the Tennessee House this week, too — but the very existence of such bills has a chilling effect on county and municipal governments.
If blue-city leaders in a red state want to regulate gun use, or prevent fracking, or raise the minimum wage, or welcome labor unions, or establish a sanctuary for undocumented immigrants, or encourage green energy, or decriminalize marijuana, or subject their police force to community oversight, or protect LGBTQ businesses from discrimination, or pass any number of other laws that would enhance the quality of life in their own communities, they have to craft legislation in a way that doesn’t provoke statehouse members in the pockets of powerful industry lobbyists. (Tennessee’s pipeline bill, for example, was introduced at the request of the Tennessee Chamber of Commerce and the Tennessee Fuel & Convenience Store Association.) Potentially transformative legislation must be watered down, lest the state legislature pass a pre-emptive law tying city leaders ‘hands in perpetuity.
This particular energy infrastructure bill has ramifications that go far beyond the siting of pipelines. It is part of a last-gasp effort by the fossil fuel industry to override what everybody knows, even here in Tennessee, is our green energy future. “This is a seriously big thumb on the scale in favor of the fossil fuels,” George Nolan, a senior attorney with the Southern Environmental Law Center told The Tennessean. “It says if you’re a local government, you can’t touch fossil fuels.”
Justin J. Pearson, founder and president of the Memphis Community Against Pollution, which led the effort to defeat the Byhalia Connection pipeline, goes even further. “This legislation is making county commissions and county mayors toothless against these fossil fuel giants, which is why the fossil fuel industry is bringing this bill to our legislature,” he wrote in an email. “This bill has used our successful fight against the Byhalia Pipeline as a catalyst to silence any community’s ability to protect their drinking water source from pipelines, their homes from oil tank farms, and their neighborhoods from a proliferation of gas stations.”
The irony, as Mr. Pearson often points out in interviews, is that Republicans are supposed to be the party of small government, the party of local control, the party — as we have heard ad nauseam during the pandemic — of freedom. But as pre-emptive legislation in red states demonstrates again and again, Republicans are about freedom and small government only when they’re not the ones in control of the government.
Fortunately, a coalition of local environmentalist groups — which, in addition to Memphis Community Against Pollution, includes Protect Our Aquifer, the Sierra Club, the Tennessee Environmental Council and the Southern Alliance for Clean Energy, among others — isn’t giving up on stopping this bill, or any other thumb-on-the-scale bill taken up by the Tennessee General Assembly.
“Communities across the state are rising up to find ways to protect their communities,” Mr. Pearson said. “We’re in the fight and always will be.”