If You Can’t Stand the Heat, Don’t Live in a Red State

The temperature in Dallas is forecast to reach 104 degrees fahrenheit this Friday, a level that sends most people hiding wherever they can find air conditioning. Now imagine you had to not only stay outside in that heat, but you had to work on a rooftop for hours, with no shade as the sun beats down on you.

The obvious threat to life and health posed to workers by that kind of heat has led some cities and counties to pass ordinances requiring employers to give workers regularly scheduled water breaks or time in the shade. This doesn’t sit right with some state-level Republicans, who have moved to prevent local governments from offering that protection. It’s called “preemption,” when a state government tells local governments what kinds of measures they’re forbidden from passing. And we’re probably going to see more of it, even as increasing temperatures and climate effects of all kinds become more of a problem local governments try to address.

There’s nothing inherently conservative about preemption, and it can even be used as a tool to reduce emissions (for instance, by overruling problematic local zoning laws). But these days, preemption laws are usually driven by a geographic tension: In nearly every red state where Republicans control the legislature and governorship, there are blue cities run by Democrats who will try to create rules that reflect their own values and priorities. In the coming years, the conflict between states and municipalities is going to be the locus of some intense battles as we struggle to deal with climate change — or, depending on who’s making the rules, not deal with it at all.

In Florida, perhaps the state more affected by climate change than any other, Governor Ron DeSantis and the GOP-run legislature have made clear their position on the issue of workers’ exposure to heat. Last summer, Miami-Dade County — where an estimated 300,000 people work outside — experienced a record 46 straight days of heat indexes topping 100 degrees. So members of the county commission proposed an ordinance that would have required 10-minute breaks in the shade for construction and farm workers when the heat index topped 90.

In response, the legislature passed a bill, which DeSantis signed, prohibiting local governments from requiring employers “to meet or provide heat exposure requirements not otherwise required under state or federal law.” In other words, no city or county in Florida will be allowed to have more comprehensive requirements protecting workers from heat exposure than the state or federal government does. But the state has no such requirements, and federal law has only general language instructing employers to provide workplaces “free from recognized hazards that are causing or likely to cause death or serious harm to employees.” The result is that Florida municipalities are effectively barred from regulating heat exposure in any way.

DeSantis may have taken his cue from Texas, where last year Governor Greg Abbott signed a sweeping preemption law that came to be known as the “Death Star bill.” It targeted local laws on a variety of issues, including ordinances in Austin and Houston that required water breaks for outdoor workers. While a judge declared the law unconstitutional, it remains in effect while under appeal.

The Biden administration is looking to move into the void created by laws like the ones in Texas and Florida. In early July, it announced a proposed Occupational Safety and Health Administration rule that would require employers to develop plans to protect workers from heat and provide rest and water breaks. A poll taken by a progressive group showed the proposal to be almost absurdly popular, with 9 out of 10 respondents supporting it. Even Republicans were in agreement.

Unfortunately, such a rule faces a couple of key hurdles. First, a loophole in the half-century-old law that established OSHA exempted public employees from its protections unless states opted in, and 23 states haven’t (including Texas, Florida, and the entire Deep South).

More importantly, since the Supreme Court recently declared that executive agencies don’t enjoy the benefit of the doubt when deciding how ambiguous laws should be put into practice, if this regulation does go into effect, we can expect a lawsuit challenging OSHA’s right to regulate heat at all. Ultimately the decision will lie with the court’s six conservative justices, who have granted themselves the power to decide almost any policy question they choose. And given their general hostility to worker’s rights, it isn’t hard to predict how they’ll come down.

Which means that when it comes to workers and heat, along with other issues related to climate change, the real action may continue to be at the state and local level.

Preemption laws were already more likely to be passed in red states; while there are conservative rural areas in blue states, their self-governance hasn’t aroused the same ire among Democratic state legislators that Republicans feel toward their blue cities. Now consider what will happen after November. Whoever wins the presidential election, the red states/blue cities divide will remain in place, while national politics will almost certainly become even more angry and polarized.

Republican-run states will continue to move aggressively to flex their policymaking muscles, seeing how far they can move the law to the right where they have the power to do so. Elected officials in liberal cities may respond to their constituents’ dismay at state policy by pushing back against interference from state capitals, setting the stage for more conflict. As climate effects grow more pronounced, those cities will be looking for every way possible to both reduce their own emissions and mitigate the effects climate change is having on them.

That could mean an intensifying cycle of conflict over local climate laws, pitting mayors and county councils against governors and state legislators. While that goes on, the people forced to work outside will in all likelihood continue to suffer in the heat.