Did the Idaho AG approve a 2008 ballot initiative banning new coal and nuclear power plants in Idaho without statewide voter approval?

Plain-English summary

A petitioner filed a 2008 Idaho ballot initiative titled "Initiative to Protect Idaho Family's Safety in Our Energy Future, and Adopt Laws Other States Use to Protect Themselves from Unwanted Coal and Nuclear Plants." The proposal had three operative parts: (1) prohibit construction of new nuclear power plants in Idaho until a "final waste repository" with certified room for spent nuclear fuel was open, (2) require statewide voter approval before any final permit for a new coal or nuclear plant could issue, and (3) leave county commission permitting decisions in place but add the statewide voter overlay.

The AG's Certificate of Review pointed out that the coal-plant ban was already largely redundant under existing Idaho law. In 2007 the State of Idaho had opted out of the federal Cap and Trade Program for mercury emissions and adopted IDAPA 58.01.01.199, which says "no owner or operator shall construct or operate an electric generating unit (EGU) ... with a potential to emit mercury (Hg) emissions." Because coal-fired plants cannot capture all mercury, that rule already effectively prohibited new coal-fired generation in Idaho.

The nuclear provisions raised federal preemption concerns under the Atomic Energy Act of 1954 (42 U.S.C. § 2011 et seq.). The AEA gives the Nuclear Regulatory Commission exclusive authority over the radiological safety aspects of nuclear plant construction and operation, while reserving to the states their traditional authority over questions of need, reliability, cost, and other economic concerns (42 U.S.C. § 2021(c)(1) and (k)). The U.S. Supreme Court in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission (1983) upheld a similar California waste-disposal-tied moratorium because California convinced the Court the rule was based on economic concerns about uncertain costs and possible shutdowns, not safety. Oregon has a comparable statute.

But, the AG warned, the regulatory landscape had changed substantially in the 25 years since PG&E. Several states (including California) had partially deregulated their electric utility industries, and the nuclear power industry now included "merchant" or "exempt wholesale generator" plants that sell power into wholesale markets rather than to utility ratepayers. Idaho's circumstances also differed. The Initiative's stated purpose talked about "the risks to our families and our water," language that would invite a court to characterize the rule as a safety regulation, which the AEA preempts. English v. General Electric Co. (1990) reinforced the point: state regulation of matters directly affecting radiological safety, even if enacted out of nonsafety concerns, infringes on the NRC's exclusive authority.

Beyond preemption, the Initiative had drafting issues, including ambiguity about how the statewide voter veto would interact with existing county permitting authority and the existing voter-advisory provision in Idaho Code § 39-3027 (a 1982 voter-enacted statute requiring an advisory vote before any law prohibiting nuclear power generation).

Currency note

This opinion was issued in 2008. 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 coal-plant ban already redundant?

Because of Idaho's existing zero-mercury emissions rule. In 2007, Idaho opted out of the federal Cap and Trade Program for mercury and adopted IDAPA 58.01.01.199, which prohibits the construction or operation of any new electric generating unit "with a potential to emit mercury (Hg) emissions." Because coal-fired plants cannot capture all mercury emissions, the rule effectively prohibits new coal-fired generation. So as long as that rule stays in place and Idaho doesn't rejoin the federal program, no new coal plant can be built.

Why might the nuclear-plant ban be preempted?

Because the federal Atomic Energy Act of 1954 gives the Nuclear Regulatory Commission exclusive authority over radiological safety in nuclear plant construction and operation. The 1959 amendments at 42 U.S.C. § 2021(c)(1) and (k) preserve state authority over non-safety regulation, including need, reliability, cost, and similar economic concerns. The U.S. Supreme Court in PG&E (1983) upheld California's waste-tied moratorium because the Court accepted California's argument that the rule was about economic uncertainty (potential shutdowns and replacement-power costs), not safety. The Idaho Initiative's preamble talked about safety concerns ("risks to our families and our water"), which a court could read as a safety regulation that the AEA preempts.

What is § 39-3027?

A 1982 Idaho statute, enacted by initiative, that requires any law prohibiting nuclear power generation to first be submitted to the electorate at the next general election. The vote is advisory only; the legislature can still act in any manner. The 2008 Initiative would have created a separate, binding voter-veto requirement on top of this earlier advisory mechanism, raising drafting questions about how the two would interact.

What is a "merchant" power plant?

A power plant that sells electricity into wholesale markets rather than to a regulated utility's ratepayer base. After partial electric-utility deregulation in the 1990s and 2000s, many new generating facilities operated as "exempt wholesale generators" or "merchant plants." Because they sell to whoever bids highest, the economic-need analysis a state would normally do in the regulated-utility context becomes more complicated, and that complicates the PG&E (1983) economic-concerns analysis.

Did this initiative pass?

The Certificate of Review only addresses legal form. Whether the petitioner gathered enough signatures and the measure made the ballot would need to be confirmed against Idaho election records.

Background and statutory framework

Idaho Code § 34-1809 sends every initiative petition to the Attorney General for advisory legal review. The AG covers form, style, and substantive legal problems including any constitutional defects.

The Atomic Energy Act of 1954 at 42 U.S.C. § 2011 et seq. is the federal statute governing civilian nuclear power. The 1959 amendments at 42 U.S.C. § 2021 divided regulatory authority between the NRC (radiological safety) and the states (need, cost, reliability, and other non-safety concerns). Section 2018 protects state and local authority over the generation, sale, or transmission of electric power produced by NRC-licensed facilities.

The U.S. Supreme Court applied this framework in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983). California had a statute requiring the state Energy Commission to find that the federal government had approved a means for high-level waste disposal before new nuclear plants could be approved. The Court upheld it as an economic regulation about uncertain costs, not a safety regulation.

English v. General Electric Co., 496 U.S. 72 (1990), reinforced that state regulation of matters directly affecting radiological safety, even if enacted out of non-safety concerns, infringes on the NRC's exclusive authority.

Idaho's mercury rule at IDAPA 58.01.01.199 implements Idaho's 2007 decision to opt out of the federal Cap and Trade Program for mercury, effectively prohibiting new coal-fired generation in Idaho.

Citations

U.S. Constitution: art. VI, cl. 2.

Federal statutes: 42 U.S.C. §§ 2011 et seq. (Atomic Energy Act); 42 U.S.C. § 2018; 42 U.S.C. § 2021.

Idaho Code: §§ 34-1809; 39-3027.

Idaho Administrative Rules: IDAPA 58.01.01.199.

U.S. Supreme Court: Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983); Louisiana Public Service Comm'n v. FCC, 476 U.S. 355 (1986); English v. General Electric Company, 496 U.S. 72 (1990).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/c012908.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

January 29, 2008

The Honorable Ben Ysursa
Idaho Secretary of State
STATEHOUSE MAIL

RE: Certificate of Review
Initiative Relating to Coal and Nuclear Power Plants in Idaho

Dear Secretary of State Ysursa:

An Initiative Petition was filed with your office on December 28, 2007, and received by this Office the same day. Pursuant to Idaho Code § 34-1809, this Office has reviewed the Petition and prepared the following advisory comments. Given the strict statutory timeframe in which this Office must respond and the complexity of the legal issues raised in this Initiative Petition, this Office's review can only address major areas of concern and cannot provide an in-depth analysis of each issue that may present concerns. Further, under the review statute, the Attorney General's recommendations are "advisory only," and the petitioner is free to "accept or reject them in whole or in part." The opinions expressed in this review are only those that may affect the legality of the Initiative. This Office offers no opinion with regard to the policy issues raised by this proposed Initiative.

MATTERS OF SUBSTANTIVE IMPORT

Introduction

The proposed Initiative is entitled "Initiative to Protect Idaho Family's Safety in Our Energy Future, and Adopt Laws Other States Use to Protect Themselves from Unwanted Coal and Nuclear Plants." The Initiative Petition (or the "Initiative") submitted to our Office for review contains a general preamble or "Statement of Purpose" and three paragraphs of "legal text" to be codified into law. The Statement of Purpose describes the first legal paragraph as intending "to prohibit building any nuclear power plants, until a final waste repository is open, with certified room for the spent nuclear fuel rods and high-level radioactive waste . . ."

A. The Construction of Coal Plants is Prohibited in Idaho

In 2007, the State of Idaho "opted out" of the federal Cap and Trade Program for Mercury emissions under the Clean Air Mercury Rule. To comply with the State's zero-budget emission standard, the Rules for the Control of Air Pollution in Idaho provide that "no owner or operator shall construct or operate an electric generating unit (EGU), as defined in 40 C.F.R. 60.24, with a potential to emit mercury (Hg) emissions." Rules 199, IDAPA 58.01.01.199. This rule prohibits any coal-fired power plant from being constructed in Idaho because coal power plants cannot capture all mercury emissions. As long as this rule remains in effect and Idaho does not participate in the federal Cap and Trade Program for Mercury, a coal-fired power plant cannot be constructed in Idaho.

B. As Written, the Nuclear Portion of the Initiative May be Preempted by Federal Law

The Supremacy Clause of the United States Constitution declares that the federal Constitution and the law of the United States "shall be the supreme law of the land." Art. VI, cl. 2.

The Atomic Energy Act of 1954 (the "AEA") established the Atomic Energy Commission (now the Nuclear Regulatory Commission (NRC)) and authorizes the Commission to regulate the private uses of nuclear materials in power generating facilities. 42 U.S.C. § 2011 et seq. In 1959, the AEA was amended to clarify the regulatory responsibilities between the NRC and the States. In pertinent part, subsections 2021(c)(1) and (k) provide that the NRC will retain regulatory authority over "the construction and operation of any [electric generating] facility," while the states or local agencies may "regulate activities for purposes other than protection against radiation hazards."

The text of the Initiative's first paragraph is similar to a provision in California law that requires the California Energy Commission to determine whether the federal government "has approved and there exists a demonstrated technology or means for the disposal of high-level nuclear waste." Cal.Pub.Res.Code § 25524.2. In 1983, the United States Supreme Court ruled that this California statute was not preempted by the AEA. Pacific Gas & Electric Company v. State Energy Resources Conservation & Development Commission ("PG&E"), 461 U.S. 190, 103 S.Ct. 1713 (1983). The Court first determined that the 1959 amendments to the AEA indicated "that the federal government should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant, but that the States retain their traditional responsibility in the field of regulating electric utilities for determining questions of need, reliability, cost and other related state concerns."

However, the Court declared that a "state moratorium on nuclear construction grounded in safety concerns" or "a state judgment that nuclear power is not safe enough to be furthered developed would conflict directly" with both the AEA and NRC regulations. PG&E, 461 U.S. at 213. English v. General Electric Company, 496 U.S. 72, 84-85, 110 S.Ct. 2270, 2278 (1990) ("State regulation of matters directly affecting the radiological safety of nuclear-plant construction and operation, 'even if enacted out of nonsafety concerns, would nevertheless infringe upon the NRC's exclusive authority.").

Although the Supreme Court found language similar to the Initiative's first paragraph was not preempted by the AEA, there are at least three significant differences between the California statute and the proposed Initiative. First, the regulatory scheme pertaining to electric utilities 25 years ago is quite different from the regulation of such utilities today. Today's electric power may be produced by alternative power suppliers such as cogenerators, small power producers and independent power producers ("merchant" plants).

LAWRENCE G. WASDEN
Attorney General