Could a 1997 Idaho ballot initiative ban the 'reburial' of plutonium and require written accident analyses for state air-quality permits, when the proposal lacked the basic structure of operative legislation?
Plain-English summary
Peter Rickards filed an initiative petition on June 6, 1997 trying to address the handling of plutonium in Idaho, in the political context of ongoing concern about the Idaho National Engineering and Environmental Laboratory and federal Department of Energy plutonium storage decisions. The proposal had four substantive ideas: (1) a ban on state employees, including the governor, signing any agreement allowing the "reburial of this plutonium in Idaho"; (2) a requirement for "written accident analysis" for every air quality permit, calculating "the doses of radiation they inflict on Idahoans"; (3) a sweeping rule that "all state laws and regulations will be corrected to comply with the spirit and letter of this initiative"; and (4) a saving clause that "no federal laws will be broken."
Deputy AG Matthew J. McKeown, writing for AG Alan G. Lance, found the proposal unimplementable as written, with both format and substance problems running deep enough that it would be impossible even to draft accurate ballot titles. The drafting issues included no codification location, no division into sections, and no separation between explanatory language and operative language. The substantive issues were worse: pivotal terms went undefined ("reburial," "this plutonium"), no agency was designated to perform any of the prescribed tasks, and the relationship between the initiative and existing state and federal law was muddled.
The federal preemption problem was the most serious. States only have regulatory authority over plutonium when they have first signed a management agreement with the federal Nuclear Regulatory Commission for "special nuclear materials" under 42 U.S.C. § 2021(b)(4). Idaho had no such agreement in 1997. Without the NRC agreement, any state-law ban on "reburial" of plutonium that conflicted with the NRC program would be preempted under the supremacy analysis of Boundary Backpackers v. Boundary County, 128 Idaho 371, 913 P.2d 1141 (1996).
The certificate did not say what the petitioners should do politically. It told them, in detail, what a legal text aimed at the same goal would have to look like to function: a designated agency, defined terms, a "notwithstanding any other provision of law" precedence clause, separation of legislative findings from operative provisions, and acknowledgment that federal law would control if the state had no NRC management agreement.
Currency note
This opinion was issued in 1997. 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 was the lack of a designated agency fatal?
Because someone has to actually do what the law commands. The initiative said "no state employee" could sign certain agreements, but it did not say which agency was responsible for monitoring such agreements, declining them, or taking enforcement action when one was attempted. Similarly, the "written accident analysis" requirement did not say which agency had to perform it. Without designating a responsible entity, the initiative was a wish rather than a law: there was no one to obligate, no one to sue for non-performance, and no one to defend against a challenge to performance.
What did the AG mean by "reburial" being undefined?
The initiative said no state employee could sign an agreement allowing "reburial" of plutonium in Idaho, but never defined the term or distinguished it from "burial." If the petitioners meant to ban initial burial of plutonium, the chosen term ("reburial") would not accomplish that. If they meant something more specific, the text needed to spell out the distinction. The AG suggested the petitioners include findings explaining what they were trying to capture.
Why is federal preemption the biggest problem here?
Federal law treats nuclear materials regulation as a matter of national concern. Under the Atomic Energy Act, states can step into nuclear materials regulation only after entering a formal management agreement with the Nuclear Regulatory Commission under 42 U.S.C. § 2021(b)(4). Idaho had no such agreement. The Idaho Supreme Court applied basic preemption principles in Boundary Backpackers v. Boundary County, 128 Idaho 371, 913 P.2d 1141 (1996): a state or local law that specifically conflicts with federal law is invalid. So a state-law ban on plutonium "reburial" that crossed federal NRC programs would simply not be enforceable, no matter how clearly drafted.
What was the AG's suggestion about the "notwithstanding" clause?
When a legislature wants a new statute to control over older conflicting statutes, it typically begins the new statute with the phrase "notwithstanding any other provision of law" or similar. That kind of express precedence language tells courts how to handle the conflict, instead of forcing them to guess at the "spirit and letter" of the new law. The AG suggested the petitioners use that standard formulation if they wanted the initiative to override existing Idaho statutes. The "no federal laws will be broken" clause, meanwhile, would be read as a rule of statutory construction (read the initiative consistently with federal law where possible) rather than as a substantive override of federal supremacy.
Why couldn't the AG even draft ballot titles?
Idaho Code § 34-1804 requires the AG to prepare short and long ballot titles giving "a true and impartial statement of the purpose of the measure." When the measure does not actually have a clear purpose, that becomes impossible. The AG cannot summarize an initiative as committing the state to a specific action when the initiative does not designate who must take that action or what action exactly must be taken. Without revisions, the initiative would have stalled at the title-drafting step.
Background and statutory framework
Idaho's certificate-of-review process under Idaho Code § 34-1809 directs the AG to review every proposed initiative for form, style, and matters of substantive import. The recommendations are advisory; the petitioner can accept or reject them. The certificate is then transmitted to the Secretary of State and made part of the initiative's public record.
The political backdrop in 1997 was the long-running controversy over the federal Department of Energy's plutonium storage and management decisions involving the Idaho National Engineering and Environmental Laboratory. State and federal officials had been negotiating waste-shipment milestones and storage limits for years, and several Idaho ballot proposals in this period sought to constrain state participation in those decisions. The "reburial" framing in this initiative likely refers to specific federal proposals to consolidate plutonium pits or other special nuclear material at the Idaho site.
The Atomic Energy Act framework cited in the certificate (42 U.S.C. § 2021(b)(4)) defines the structure of state-federal regulatory cooperation on nuclear materials. The NRC may enter into agreements ceding certain regulatory authority to states that demonstrate adequate programs, but absent such an agreement, the NRC's authority is exclusive. Idaho's lack of an NRC management agreement in 1997 meant the state had no basis for unilateral regulation of plutonium reburial in conflict with federal directives.
Citations
- Idaho Code §§ 34-1804, 34-1809
- 42 U.S.C. § 2021(b)(4)
- Boundary Backpackers v. Boundary County, 128 Idaho 371, 913 P.2d 1141 (1996)
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C070197.pdf
Original opinion text
July 1, 1997
The Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED
Re: Certificate of Review Initiative Regarding Radioactive Material
Dear Mr. Cenarrusa:
An initiative petition was filed with your office on June 6, 1997, concerning the handling of plutonium. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments.
MATTERS OF SUBSTANTIVE IMPORT
Enforcement Problems
As it is currently written, the proposed initiative contains a number of format problems that will make the initiative very difficult to either codify or implement. Without extensive revision, a court will probably rule that the proposed initiative is unenforceable and does not constitute valid law. As it is presently written, the proposed initiative does not so much propose a law as it does express the wishes of the sponsors.
The proposed initiative does not state where in the Idaho Code it will be contained upon codification. The proposed initiative is not divided into separate sections, despite the fact that it proposes to mandate a number of different things. Much of the text of the proposed initiative does not consist of operative language requiring specific action or conduct.
Substantive Problems
There are a number of substantive problems with the proposed legislation. The fundamental problem that the entire proposed initiative suffers from is a lack of clarity. Basic elements of legislation, such as designating the entity or individual responsible for certain tasks, are not included.
- Ban on Entering Plutonium-Related Agreements
The proposed initiative states that "no state employee, including the governor, is allowed to sign or agree to anything that allows the reburial of this plutonium in Idaho." This requirement appears to refer to a number of matters that are not specifically incorporated into the proposed initiative. For example, the proposed initiative refers to the "reburial" of plutonium, not the burial of plutonium. Likewise, the proposed initiative refers to "this plutonium" without specifying what plutonium is subject to regulation.
Another problem that may stem from the proposed ban on entering into any plutonium-related agreement is that states only have regulatory authority over plutonium when those states have first entered into a management agreement with the United States Nuclear Regulatory Commission (NRC) for the management of "special nuclear materials," pursuant to 42 U.S.C. § 2021(b)(4). Currently, there is no agreement in place between the State of Idaho and the NRC. Therefore, a reviewing court is likely to rule that the proposed initiative is preempted to the extent it attempts to address "reburial" of plutonium in a manner that differs from the NRC's program. See Boundary Backpackers v. Boundary County, 128 Idaho 371, 913 P.2d 1141 (1996) (state and local laws that specifically conflict with federal laws are invalid).
- Written Accident Analysis
The proposed initiative next purports to require "written accident analysis" for every air quality permit issued by the state. The "written accident analysis" anticipated by the proposed initiative requires an unidentified state entity to "calculate the doses of radiation they inflict on Idahoans." The proposed initiative does not designate a state agency to carry out this requirement.
The proposed initiative identifies a number of specific scenarios that must be incorporated into the "written accident analysis." The analysis must consider the effects of radiation doses to pregnant women and their babies, worst weather and geological conditions (particularly earthquakes). This analysis must be conducted to consider the "lifetime of project and the lifetime of nuclear waste created." Without greater detail, it will be very difficult for a state agency to implement this provision.
- Construction With Other Laws
The proposed initiative contains a sentence describing how it should be interpreted with other existing laws. The last paragraph states that "[a]ll state laws and regulations will be corrected to comply with the spirit and letter of this initiative and no federal laws will be broken." When the legislature intends for a bill to control against other potentially conflicting legislation, the bill will frequently begin with the phrase, "notwithstanding any other provision of law," or a similar phrase. The use of this standard statutory language will eliminate the need for a court to engage in the difficult, and uncertain, task of determining both the "spirit and letter" of the proposed initiative.
The last clause of the final paragraph states that "no federal laws will be broken." As a matter of federal supremacy, federal law will control over state law when the two are in direct conflict. This is particularly true in cases involving the management of plutonium where, absent a specific agreement, federal jurisdiction is exclusive.
CONCLUSION
The proposed initiative's apparent intent is to direct some entity of state government to take some specified action when a decision involving plutonium is before that state agency. However, there is no language in the proposed initiative that specifies exactly what must be done or which agency is expected to do it. When these substantive problems are combined with the enforcement flaws identified above, this office must conclude that the proposed initiative cannot be implemented as it is currently written. Indeed, without substantial revision of the proposed initiative, this office will be unable to develop accurate long and short ballot titles, as is required by Idaho Code § 34-1804.
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 Peter Rickards by mailing him a copy of this certificate of review.
Sincerely,
ALAN G. LANCE
Attorney General
Analysis by:
MATTHEW J. MCKEOWN
Deputy Attorney General