Could a 1996 Idaho ballot initiative require legislative and voter approval of any agreement to receive additional radioactive waste in Idaho, and could it retroactively invalidate the October 1995 INEL settlement agreement among the Governor, Attorney General, the Department of Energy, and the Navy?
Plain-English summary
Diane Jones filed an initiative on February 20, 1996 with two main goals. Section 1 (proposed Idaho Code § 39-3031) would forbid the Governor or Attorney General from entering into any agreement with a federal agency providing for the receipt and storage of additional radioactive waste in Idaho unless and until (a) the legislature passed a bill approving the agreement, (b) the bill was referred to the people under the referendum procedure in Idaho Code §§ 34-1801 to 34-1822, and (c) a majority of the votes cast approved the measure. Section 2 (proposed Idaho Code § 39-3032) attempted to subject the October 16, 1995 settlement agreement signed by Governor Phil Batt and Attorney General Alan Lance with the Department of Energy and the Navy to the same legislative and referendum approval process.
Deputies Thomas F. Gratton and Kathleen Trever, writing for AG Lance, raised four serious issues.
First, the initiative cannot give Idaho the power to prohibit the federal government from shipping radioactive waste into the state. Federal law on this question is preemptive. Jersey Central Power & Light v. Lacey, 772 F.2d 1103 (3d Cir. 1985) struck down a township ordinance prohibiting the importation of nuclear waste; Public Service Company of Colorado v. Andrus, 1991 WL 87528 (D. Idaho 1991) prohibited Idaho itself from physically blocking shipments of spent fuel into the state. Only federal courts (in equity), Congress (by waiving sovereign immunity), and federal executive agencies (primarily DOE, by accord) can limit federal radioactive-waste activities.
Second, the initiative's voter-approval mechanism inverts the referendum process. The Idaho Constitution's Article 3, section 1 uses the word "demand" to describe how the people exercise the referendum, framing it as a veto power that delays effectiveness pending a popular vote. The initiative would instead require voter affirmation by referendum (which only becomes a referendum if signatures are collected within strict timeframes) before the legislative bill could take effect. If the required ~41,000 signatures (10% of votes cast for governor at the last election) were not gathered, the bill would never reach the ballot and could never become effective. The South Dakota Supreme Court in Wyatt v. Kundert, 375 N.W.2d 186 (S.D. 1985) struck down an analogous "automatic referral" of nuclear-waste compacts as inconsistent with the South Dakota Constitution's allocation of legislative and referendum power, and the AG warned Idaho courts would likely follow that reasoning.
Third, section 2 was ineffective. The October 1995 settlement agreement was signed by the Governor (replacing his predecessor in the existing federal lawsuits under the Federal Rules of Civil Procedure) and the Attorney General (under Idaho Code § 67-1401) and was incorporated into a court order by U.S. District Judge Edward Lodge on October 17, 1995. It became effective that day. Even if Idaho voters subsequently rejected the agreement under the initiative's mechanism, the agreement and the court order would remain effective and enforceable.
Fourth, definitional and savings-clause issues created additional ambiguity. The term "waste" might be interpreted to exclude spent nuclear fuel brought to Idaho for research or weapons-usable plutonium that was not technically waste, contrary to the apparent intent. The savings clause's effect on the Department of Health and Welfare's authority to issue mixed-waste permits under the state Hazardous Waste Management Act (Idaho Code § 39-4401 et seq.) was unclear, and the inherent delay of legislative-and-referendum approval could jeopardize Idaho's primacy over hazardous waste regulation that EPA had ceded to the state in 1990 (55 Fed. Reg. 11,015).
Currency note
This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Why did the AG say this initiative could not stop federal radioactive-waste shipments?
Because federal law on radioactive materials is preemptive. The Atomic Energy Act of 1954 and the Hazardous Materials Transportation Uniform Safety Act establish a federal regulatory regime for nuclear materials and their transportation. State or local laws that would prohibit shipments or receipts the federal government has authorized are preempted under the Supremacy Clause. Jersey Central Power & Light v. Lacey held a township ordinance attempting just that unconstitutional, and Public Service Company of Colorado v. Andrus enjoined Idaho itself from physically blocking spent-fuel shipments under similar reasoning.
What was the procedural problem with the voter-approval mechanism?
The initiative tried to use the referendum process backwards. Idaho's referendum, like most state referendums, is a "veto power": the people can demand a referendum on a legislative enactment, delaying its effect until a popular vote. The initiative instead conditioned the effectiveness of legislation on receiving voter approval after running through the referendum signature-gathering process. If the proponents of the legislation could not gather ~41,000 signatures in 60 days, the bill would never reach the ballot, so the referendum-as-affirmation could never occur and the legislation would die. The Idaho Constitution's Article 3, section 1 was designed for the opposite situation.
Why did Wyatt v. Kundert matter?
Wyatt v. Kundert addressed an almost identical South Dakota initiative (Chapter 240) requiring voter approval of any compact between South Dakota and any other state regarding nuclear waste disposal. The South Dakota Supreme Court struck down both the automatic-referendum mechanism and the requirement that future legislatures be bound to refer nuclear-waste enactments. The AG quoted at length from Wyatt's holding that one initiative cannot bind future legislatures' "inherent power to refer" measures, and predicted Idaho courts would follow the same logic.
Was the October 1995 INEL settlement actually safe from voter rejection?
Yes, for two reasons. First, it had already been signed by officials with the authority to bind the state (the Governor as a party to the litigation under Federal Rules of Civil Procedure, and the AG under Idaho Code § 67-1401). Second, and more importantly, U.S. District Judge Edward Lodge incorporated the settlement into a federal court order on October 17, 1995. Once a federal court order takes effect, it cannot be undone by a state initiative; the order is enforceable in federal court regardless of subsequent state-law action. The initiative's section 2 was therefore both untimely and legally inconsequential.
What's the mixed-waste permit issue?
The state had assumed primacy over mixed-waste regulation from EPA in 1990. Mixed waste is hazardous waste that is also radioactive, regulated under the federal Resource Conservation and Recovery Act with state-level implementation. If the initiative were read to require legislative and voter approval before DEQ could issue mixed-waste permits authorizing receipt of out-of-state mixed waste, the inherent delay would slow permit decisions to the point where EPA might reassume primacy on the ground that Idaho's program no longer met federal standards. The AG flagged this as a likely unintended consequence the petitioner should clarify.
Background and statutory framework
The Idaho radioactive-waste politics of the mid-1990s revolved around the Idaho National Engineering Laboratory (INEL), the federal Department of Energy facility in eastern Idaho that had become a primary destination for spent nuclear fuel from federal Navy and DOE operations. Litigation between the state and federal government over storage and shipment milestones culminated in the October 1995 settlement agreement signed by Governor Phil Batt and AG Alan Lance.
The initiative was an attempt by anti-storage advocates to lock in popular control over future federal-state agreements about INEL waste handling. The drafting flaws the AG identified, particularly the inverted referendum mechanism, suggest the petitioners were not working from a careful constitutional template; the structure they used would have made voter approval of any future agreement nearly impossible to obtain.
The federal preemption framework that constrained the initiative's reach has not become any easier for states to navigate since 1996. Subsequent litigation over Yucca Mountain, interim storage facilities, and other federal nuclear-waste decisions has confirmed the basic preemption analysis: states have voice in federal radioactive-waste decisions through political channels and federal-court litigation, but not through unilateral state-law prohibitions.
Citations
- Idaho Const. art. 3, § 1; art. 4, § 1
- U.S. Const. art. I, § 8 (Commerce Clause); Supremacy Clause
- Idaho Code §§ 34-1801 et seq. (referendum), 34-1809 (certificate of review)
- Idaho Code § 39-3031 (proposed); § 39-3032 (proposed)
- Idaho Code § 39-4401 et seq. (Hazardous Waste Management Act)
- Idaho Code §§ 67-429A, 67-1401
- Atomic Energy Act of 1954, 42 U.S.C. § 2021; Hazardous Materials Transportation Uniform Safety Act
- 55 Fed. Reg. 11,015 (March 26, 1990) (Idaho assumes mixed-waste primacy)
- Jersey Central Power & Light v. Lacey, 772 F.2d 1103 (3d Cir. 1985)
- Public Service Company of Colorado v. Andrus, 1991 WL 87528 (D. Idaho 1991)
- Wyatt v. Kundert, 375 N.W.2d 186 (S.D. 1985)
- Idaho Water Resource Board v. Kramer, 97 Idaho 535, 548 P.2d 35 (1976)
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C031996.pdf
Original opinion text
March 19, 1996
Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED
Re: Certificate of Review; Initiative Regarding Radioactive Waste
MATTERS OF SUBSTANTIVE IMPORT
The proposed initiative concerns the authority of the State of Idaho and its executive and representatives to enter into agreements regarding the receipt and storage of additional radioactive waste in the State of Idaho. This initiative cannot give the legislature or the people of Idaho, through the initiative or referendum process, an independent ability to prohibit or otherwise limit the federal government's shipment of radioactive waste into Idaho.
Federal courts have uniformly interpreted federal statutes and the U.S. Constitution as preventing state legislatures or citizen initiatives from enacting legislation to prohibit the shipment of radioactive waste into a particular state. See, e.g., Jersey Central Power & Light v. Lacey, 772 F.2d 1103 (3d Cir. 1985); Public Service Company of Colorado v. Andrus, 1991 WL 87528 (D. Idaho 1991).
Section 1 requires legislative and voter approval of any agreement entered into by the Governor or Attorney General relating to the receipt and storage of additional radioactive waste. From a legal standpoint, the most troubling aspect of section 1 is the voter approval requirement; specifically, the incorporation of the referendum statutes codified at Idaho Code §§ 34-1801 through 34-1822. The referendum has generally been referred to as the "veto power" of the public over legislative enactments. Idaho Water Resource Board v. Kramer, 97 Idaho 535, 548 P.2d 35 (1976).
The proposed initiative requires voter approval of the legislative enactment, which itself must approve the agreement while incorporating the petition requirements contained in Idaho Code § 34-1801 et seq. This creates a situation which is opposite to the general use of the referendum process.
The South Dakota Supreme Court, in Wyatt v. Kundert, 375 N.W.2d 186 (S.D. 1985), addressed such an issue in a similar context. South Dakota voters had approved an initiative which required voter approval of any proposed compact between South Dakota and any other state regarding the disposal of nuclear waste. The South Dakota Supreme Court struck down this automatic referral. The court held: "Each South Dakota Legislature, in the future, can and must exercise its own independent inherent power to refer acts or questions to a vote of the people. Chapter 240 cannot bind future legislatures/legislative assemblies to an automatic exercise of its inherent power to refer." 375 N.W.2d at 192-93.
If the Wyatt decision is followed in Idaho, an automatic legislative or electorate referral provision contained in the initiative would probably be declared unconstitutional by Idaho courts.
Section 2 purports to condition the effectiveness of the recent settlement agreement regarding receipt and storage of radioactive waste on legislative and voter approval. The agreement signed by Governor Batt, Attorney General Lance, the Department of Energy and the Navy and incorporated into a court order by U.S. District Judge Edward Lodge on October 17, 1995, became effective on that date. Consequently, approval by either the legislature or a majority vote in a referendum is not necessary to make the agreement effective.
Both the governor and the attorney general had authority to enter into the above settlement agreement. When Governor Batt took office, he replaced his predecessor in relation to the existing federal lawsuits, pursuant to the Federal Rules of Civil Procedure. Under constitutional and statutory authority, the attorney general is the legal representative of the State of Idaho and has the ability to negotiate and enter into a settlement agreement of any lawsuit against the State of Idaho. Idaho Code § 67-1401.
In conclusion, the proposed initiative, as presently worded, is very likely to be ruled unconstitutional. Section 2 of the proposed initiative is ineffective.
I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style and matters of substantive import and that the recommendations set forth above have been communicated to petitioner Diane Jones.
Sincerely,
ALAN G. LANCE
Attorney General
Analysis by:
THOMAS F. GRATTON
KATHLEEN TREVER
Deputy Attorneys General