Last year, Texas’s state legislature passed a measure known not so affectionately by opponents as the “Death Star” bill. The Texas Regulatory Consistency Act, House Bill 2127, preempts cities and counties from passing measures that are stronger than those passed at the state level across a broad range of policy areas. It’s an attack on Texas’s “home rule” cities, many of which (unlike the legislature) are controlled by Democrats. These cities—including Austin and Houston—have adopted their own charters allowing them to pass and enforce local ordinances so long as they aren’t specifically prohibited or preempted by state or federal law.
When House Bill 2127 passed last summer, much of the press coverage of the bill focused on the fact that it could eliminate the kinds of measures passed in Austin and Dallas to mandate that employers provide workers with rest and water breaks. As the Lone Star State settles into another blazing summer, the future of H.B. 2127 remains up in the air amid legal challenges. But advocates worry it’s already influencing what kinds of policies get proposed.
Shortly after the bill passed last May, and was signed into law by Governor Greg Abbott the following month, Houston—joined by several other home rule cities—initiated a lawsuit aimed at stopping it. At the end of last August, the Texas District Court for Travis County sided with the cities and ruled that the bill was unconstitutional “in its entirety,” blocking its passage just before it was due to be implemented on September 1. The Texas Attorney General’s Office promptly filed an appeal, staying the effect of the lower court’s ruling, and the law went into effect on schedule. The case is set to be heard in Texas’s Third Court of Appeals, but no date has been set for oral arguments.
Ana Gonzalez, deputy director of policy and politics for the Texas AFL-CIO, explains that the bill is novel in scope but not in form. “Preemption is not something new to Texas,” she told me. “In 2003, the legislature prohibited cities from raising the minimum wage. We’ve seen this around fracking, and in city policies requiring additional safety measures for Uber and Lyft that have been overturned by the legislature.” Texas’s “Death Star” bill is also not alone, Gonzalez points out. Florida passed a similar law last June.
Awash in fossil fuel cash, Texas Republicans have latched onto preemption as a core means of defanging more liberal cities’ efforts to fight climate change and mitigate its effects. In the same session last year, the Texas legislature also passed a bill establishing that only the state can regulate greenhouse gas emissions, expressly preempting cities from doing so. On the heels of an ultimately unsuccessful push by climate activists in El Paso to have climate targets written into the city’s charter, the legislature also passed another measure, S.B. 1860, requiring cities to get approval from Austin in order to do the same.
Structured similarly to some of the country’s harshest anti-abortion measures, H.B. 2127 empowers just about anyone aggrieved by local policies to sue governments on the grounds that they’ve overreached their authority. Lobby groups that had long pushed for the passage of a bill like H.B. 2127, such as the National Federation of Independent Business, have encouraged their members to make use of the measure to “fight back against local officials governing with a heavy hand.” Those tracking the bill weren’t aware that any such lawsuits had been brought, including on heat protections.
Advocates who’ve opposed H.B. 2127, from city government officials to labor groups, fear the bill has already had a chilling effect. The San Antonio City Council, for instance, watered down a proposed water break ordinance to only include city contractors, not private job sites like in Austin and Dallas’s rules. Councilwoman Adriana Rocha Garcia suggested just after passage that any expansion of heat protections in San Antonio would depend on the outcome of lawsuits against H.B. 2127. “I think that we’re probably going to have to wait and see what happens (with the H.B. 2127 lawsuit), right, because it’s just one step,” she said following the vote, per local ABC affiliate KSAT. There are no federal rules protecting workers against extreme heat, specifically, although the Occupational Safety and Health Administration does mandate that employers protect employees more generally against serious physical harm or death.
The potential consequences of H.B. 2127 could be sweeping, but aren’t yet obvious given how broad the language of the bill is and the fact that, while technically in effect, it’s still in something of a legal limbo. Dallas stands to face obstacles in reforming its predominantly single-family zoning, making it difficult to build more housing and increase density in the sprawling, fast-growing city. Among those pushing hardest for H.B. 2127’s passage were also lenders, like TitleMax, that issue payday and auto title loans, a relatively new practice that allows borrowers to take out typically small loans in exchange for the title on their fully paid-off vehicles. Payday and auto title lenders are notorious for charging exorbitant interest rates of up to 600 percent to predominantly low-income customers, and nearly 50 municipalities across Texas have implemented local rules imposing stricter rules on them. Municipal protections for tenants against evictions, and potentially those mandating landlords keep units at safe temperatures, could also be under threat, along with nondiscrimination protections in housing for queer Texans.
Somewhat ironically, the bill has had a chilling effect on right-wing efforts too. When Franklin County sought guidance from the attorney general’s office on a proposed moratorium on commercial solar projects, Paxton’s office said that the policy probably wouldn’t survive a legal challenge and was likely invalid and unenforceable.
Texas has in recent years emerged as a testing ground for some of Republicans’ most extreme governance proposals, many aimed at concentrating power in the hands of state officials and taking it away from more progressive municipalities. It makes a certain amount of sense that Texas’s GOP has been at the forefront of that trend: While Texas is romanticized as the land of cowboys and tumbleweeds, and is still home to the country’s largest rural population, more than 83 percent of its population lives in urban areas. That includes fast-growing, diverse cities that tend to elect Democrats. In H.B. 2127, Texas Republicans have created one of the country’s clearest articulations of the GOP’s opposition to the concept of representative democracy. As elsewhere, it stands to make Texans’ lives hotter, costlier, and more dangerous.
