New Hampshire is a Dillon Rule State, not a Home Rule one. This means, only the legislature can pass laws, unless they’ve passed a law the ‘enables’ municipalities to create their own. These must be specific enabling statutes, such as the one that enables planning boards. RSA 673:1 – “I. Any local legislative body may establish a planning board, the members of which shall be residents of the municipality.”
There is no enabling statute that allows a municipality or any local legislative body to enact a ban on single-use plastic, styrofoam, paper, carry out bags, etc etc. Portsmouth’s City Council does not care, apparently.
City Councilor Denton has apparently been trying to do this for 5 years, so he’s way ahead of the curb. Call him a hipster, I guess. If that’s how that works?
Denton, who has been working more than five years to convince a majority of the City Council to pass an ordinance regulating single-use disposables, credited students from Portsmouth High School’s Eco Club for getting the citywide ban passed.
The ordinance bans use of single-use bags, carryout containers, cups, straws, and other things on City property and at City sponsored events. That part is fine. Whether or not the City should own property that it rents out to businesses is a conversation for another day (hint: it shouldn’t.) But, as things go, the City does have a legally allowed ability to control what happens on “its” property. What is not fine, is the City wide ban on polystyrene. The City Attorney knows this, and tried to warn the Council.
City Attorney Robert Sullivan earlier this year issued an opinion stating the council didn’t have the legal authority to ban single-use disposables citywide. Portsmouth, or any other municipality in the state, can’t regulate single-use disposables because “there is insufficient state enabling legislation to provide the city with that power,” he said.
Portsmouth simply can NOT ban single-use disposables citywide. Not allowed, against New Hampshire Law, and rightfully so. Councilor Denton doesn’t care though. He acknowledges the City is put at risk by passing such an ordinance. What risk? Lawsuits.
Lawsuits cost money, but since Councilors can’t be held personally liable, who cares, right? The taxpayers will foot the bill like they always do. Just spend spend spend and then tax some more to fill the gap!
Denton acknowledged Tuesday by approving the Styrofoam ban, “the city is taking a risk.”
“We’re protecting the environment,” he said. “It’s a risk worth taking.”
It’s a risk worth taking to protect the environment, all on the Taxpayer’s Dime.
Maybe we need legislation to allow rogue government officials to be held accountable when they knowingly and willfully violate New Hampshire Statute.
Dillon’s Rule is the cornerstone of American municipal law. Under Dillon’s Rule, a municipal government has authority to act only when :
(1) the power is granted in the express words of the statute, private act, or charter creating the municipal corporation;
(2) the power is necessarily or fairly implied in, or incident to the powers expressly granted; or
(3) the power is one that is neither expressly granted nor fairly implied from the express grants of power, but is otherwise implied as essential to the declared objects and purposes of the corporation.