Wireless Technologies and the National Information Infrastructure.
Chapter 8 - Zoning Regulations and Antenna Siting:
General Court Guidelines On Federal Preemption

Politically, there are few issues that raise the ire of a small but vocal segment of the population more than federal preemption of states' rights and local regulations. The recent Supreme Court decision striking down federal restrictions on gun possession near public schools, (see footnote 17) that reversed decades of Court rulings on use of the interstate commerce clause of the Constitution to accomplish federal goals, underlines the necessity of considering carefully the appropriate and justifiable division of regulatory responsibilities between the states and the federal government. When coupled with continuing concern about the health effects of electromagnetic radiation, the local control of antennas could become a very divisive issue for policymakers.

The issues surrounding federal preemption of local zoning laws regarding antenna siting are part of a larger conflict between federal policy and state laws. In general, the supremacy clause of the Federal Constitution says that federal law overrides, or can prohibit, exercise of state laws. General rules on preemption are impossible to formulate because of the diversity and complexity of circumstances. (see footnote 18) As Supreme Court Justice Black wrote for the majority in Hines v. Davidowitz, the test to be applied in such cases is whether a state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." (see footnote 19)

Thus, congressional intent to preempt state law is the principal element of a preemption claim, and finding congressional intent when it is otherwise not explicitly expressed has been the task of the courts. Where no explicit congressional intent can be found, the courts have labored to balance state and federal interests to avoid conflicting regulation at the different levels of government. In general, the Court has given greater deference to state and municipal regulations that concern traditionally local issues--such as zoning, health, and safety measures--even while attending to the facts of each case considered on its own. (see footnote 20) In other cases, although federal preemption has been granted by the courts with some ease, there seems to be increasing reluctance to allow it. One indication of this reluctance was shown when, in 1987, President Ronald Reagan issued an executive order directing that federal preemption should be sought:

". . . only when a statute contains an express preemption provision or there is some other firm and palpable evidence compelling the conclusion that the Congress intended preemption of the state law, or when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute.... Any regulatory preemption of State law shall be restricted to the minimum level necessary to achieve the objectives of the statute pursuant to which the regulations are promulgated." (see footnote 21)

This order confirmed the trend evident in the Supreme Court, that had, by that time, begun to show increasing reluctance to usurp state and local law. (see footnote 22)