Does Maine's Article IX, Section 21 require 90% state funding or a 2/3 vote before the Legislature can reduce the State's subsidy for required municipal landfill remediation and closure?

Plain-English summary

The Joint Standing Committee on Appropriations and Financial Affairs asked the AG whether a planned reduction in State funding for the closure and remediation of municipal solid waste landfills would constitute a "state mandate" under Me. Const. art. IX, § 21, requiring either 90% State funding or a 2/3 supermajority vote.

The AG said no, on a clean timing-based analysis. Section 21 became effective on November 23, 1992. Its implementing statute, 30-A M.R.S.A. § 5685 (enacted by P.L. 1993, ch. 351), defines a "mandate" as "any law, rule or executive order of this State enacted, adopted or issued after November 23, 1992." So a mandate is, by definition, a post-1992 action.

The underlying landfill obligation is pre-1992. P.L. 1987, ch. 517, § 25 created the remediation and closure program in 38 M.R.S.A. § 1310-C et seq. The Department of Environmental Protection issued operating rules in 1989. Originally compliance was due by January 1, 1992; the Legislature extended the deadline to December 31, 1992 in P.L. 1991, ch. 622, § X-14. The underlying compliance-or-close requirement was therefore on the books well before § 21's effective date.

The AG also addressed the funding mechanism. P.L. 1987, ch. 517 established a subsidy program in 38 M.R.S.A. § 1310-F: "Subject to the availability of funds, the department shall issue grants to eligible municipalities for 75% of the cost of closure and for 90% of the cost of remediation." A series of bond issues funded this subsidy, beginning with $8 million in P.&S.L. 1987, ch. 70 (voter-approved 1987). The Committee's question was whether reducing this subsidy after 1992 would convert the pre-existing obligation into a mandate.

The AG said it would not. The legislative requirement is the compliance-or-close obligation in § 1310-C, not the subsidy program in § 1310-F. The funding program was established at the same time, but it didn't make the compliance requirement contingent on continued state funding. Even if the Legislature reduced or eliminated the subsidy, the underlying requirement (already in place pre-1992) would not become a post-1992 mandate.

Currency note

This opinion was issued in 1994. 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. Note especially that § 1310-F's percentage subsidy levels (75% closure, 90% remediation) may have changed.

Common questions

What does Me. Const. art. IX, § 21 require?

When the State requires a local unit of government to expand or modify its activities so as to necessitate additional expenditures from local revenues, the State must either fund 90% of those expenditures or enact the requirement by 2/3 vote of all members elected to each House. The provision was approved by voters in 1992 and became effective November 23, 1992.

Why does the timing of § 21 matter?

Because 30-A M.R.S.A. § 5685 (the implementing statute) defines "mandate" as a law, rule, or executive order "enacted, adopted or issued after November 23, 1992." A pre-1992 obligation is not a "mandate" within § 21's scope, even if the State later changes funding for it.

Doesn't reducing the subsidy increase the financial burden on municipalities?

Yes, in practical effect. But the AG's framework distinguishes the substantive obligation from the funding for it. The compliance-or-close obligation existed before 1992. Reducing the subsidy after 1992 doesn't "expand or modify" the municipal activity within the meaning of § 21; the activity (closing a non-compliant landfill) remains the same. The cost of complying may rise, but that is a subsidy issue, not a mandate.

Does this mean the State can withdraw all funding?

Legally, under § 21, yes. The Legislature has full discretion to adjust subsidies for pre-1992 obligations. The constraint § 21 imposes is on creating new burdens on municipalities, not on freeing the State from funding old ones. Whether reducing the subsidy is good policy, or whether it creates other problems (e.g., breach of expectations created by the 1987 voter-approved bond issues), is a different question.

What did the Legislature ultimately do?

The opinion only addresses the constitutional question. Whether the Legislature ultimately reduced § 1310-F's subsidy percentages, or how the closure timetable unfolded after 1994, is outside the scope of this opinion. P.L. 1993, ch. 378, §§ 5 and 6 (codified at 38 M.R.S.A. § 1310-N(6-B)) gave the Commissioner authority to allow continued operation of unlicensed landfills under a closure agreement, suggesting the Legislature was already trying to manage the transition pragmatically.

Background and statutory framework

Constitutional clause. Me. Const. art. IX, § 21 (effective November 23, 1992):

For the purpose of more fairly apportioning the cost of government and providing local property tax relief, the State may not require a local unit of government to expand or modify that unit's activities so as to necessitate additional expenditures from local revenues unless the State provides annually 90% of the funding for these expenditures from State funds not previously appropriated to that local unit of government. Legislation implementing this section or requiring a specific expenditure as an exception to this requirement may be enacted upon the vote of 2/3 of all members elected to each House. This section must be liberally construed.

Implementing statute. P.L. 1993, ch. 351 (enacting 30-A M.R.S.A. § 5685). The implementing statute defines a "mandate" as any "law, rule or executive order of this State enacted, adopted or issued after November 23, 1992."

Landfill closure program. P.L. 1987, ch. 517, § 25 (enacted June 29, 1987) created 38 M.R.S.A. § 1310-C et seq., the municipal solid waste landfill remediation and closure program. The DEP issued operating rules in 1989 (Ch. 400, § 4(M)) requiring compliance with operational standards and a permit by January 1, 1992. P.L. 1991, ch. 622, § X-14 extended the deadline to December 31, 1992 (amending 38 M.R.S.A. § 1310-N(6)). P.L. 1993, ch. 378, §§ 5-6 added § 1310-N(6-B), allowing the Commissioner to authorize continued operation of unlicensed landfills under closure agreements.

Subsidy provision. 38 M.R.S.A. § 1310-F: "Subject to the availability of funds, the department shall issue grants to eligible municipalities for 75% of the cost of closure and for 90% of the cost of remediation."

Funding mechanism. A series of bond issues, beginning with $8 million in P.&S.L. 1987, ch. 70 (approved by voters in 1987). Subsequent bond issues followed.

Citations

• Me. Const. art. IX, § 21 (state mandates)
• 30-A M.R.S.A. § 5685 (implementing § 21; "mandate" defined as post-November 23, 1992 action)
• 38 M.R.S.A. § 1310-C et seq. (municipal solid waste landfill remediation and closure program)
• 38 M.R.S.A. § 1310-F (75% closure subsidy, 90% remediation subsidy)
• 38 M.R.S.A. § 1310-N(6), (6-B) (compliance deadline; closure-agreement option)
• P.L. 1987, ch. 517, § 25 (1987 enactment of the closure program)
• P.L. 1991, ch. 622, § X-14 (1991 deadline extension to December 31, 1992)
• P.L. 1993, ch. 351 (implementing § 21)
• P.L. 1993, ch. 378, §§ 5, 6 (closure-agreement option)
• P.&S.L. 1987, ch. 70 ($8 million bond issue)
• Me. Dep't of Environmental Protection Rules, ch. 400, § 4(M) (1989 rules)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1994/ag_19940325.pdf

Original opinion text

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

94-4

MICHAEL E. CARPENTER
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

March 25, 1994

Joint Standing Committee on Appropriations and Financial Affairs
State House Station #115
Augusta, ME 04333

Dear Members of the Committee:

I am writing in response to your inquiry of March 21, 1994, asking whether a reduction in State funding of the costs of the required remediation and closure of municipal landfills would constitute an unfunded State "mandate" within the meaning of Article IX, Section 21 of the Maine Constitution, requiring the Legislature either to fund 90 percent of such costs, or to enact the reduced appropriation by a two-thirds vote. For the reasons which follow, it is the Opinion of this Department that a reduction in funding of this program would not constitute a mandate within the meaning of the constitutional provision.

Article IX, Section 21, which became effective on November 23, 1992, provides:

State mandates. For the purpose of more fairly apportioning the cost of government and providing local property tax relief, the State may not require a local unit of government to expand or modify that unit's activities so as to necessitate additional expenditures from local revenues unless the State provides annually 90% of the funding for these expenditures from State funds not previously appropriated to that local unit of government. Legislation implementing this section or requiring a specific expenditure as an exception to this requirement may be enacted upon the vote of 2/3 of all members elected to each House. This section must be liberally construed.

As contemplated by its terms, this provision was implemented by legislation enacted by the First Regular Session of the 116th Legislature. P.L. 1993, ch. 351, enacting 30-A M.R.S.A. § 5685. Subsection 1(C) of that enactment introduces the term "mandate" to refer to an action of the State government that requires, in the words of the constitutional amendment, "a local unit of government to expand or modify that unit's activities so as to necessitate to additional expenditures from local revenues," and defines a "mandate" to be any "law, rule or executive order of this State enacted, adopted or issued after November 23, 1992." In order to qualify as a "mandate," therefore, a law, such as the one described in your question, would have to impose an obligation on a local unit of government to spend money after that date.

In the view of this Department, the legislative program for the remediation and closure of municipal solid waste landfills would not qualify as a "mandate," because it was established well before November 23, 1992. The program was enacted, effective June 29, 1987, by the Legislature when it established within the Department of Environmental Protection, a remediation and closure program for solid waste landfills. P.L. 1987, ch. 517, § 25, enacting 38 M.R.S.A. § 1310-C, et seq. The program generally required the Department to issue rules regarding the operation of municipal solid waste landfills, and to require each municipality who was operating a landfill which was not in compliance with the rules to bring its facility into compliance so as to be able to obtain a permit to continue to operate. If the permit was not obtained by a time certain, it would be required to be closed. The Department subsequently issued rules in 1989, specifying that the deadline for compliance with the operational requirements and the obtaining of a permit would be no later than January 1, 1992. Me. Dep't of Environmental Protection Rules, ch. 400, § 4(M). The Legislature subsequently extended this deadline to December 31, 1992. P.L. 1991, ch. 622, § X-14, amending 38 M.R.S.A. § 1310-N(6). The general thrust of the statute and rule, therefore, was to compel the remediation or the closure of municipal solid waste landfills which could not operate in compliance with the rule. This requirement was in place well in advance of the effective date of the constitutional amendment, and cannot be considered a "mandate" under that amendment.

[Footnote in original: In 1993, the Legislature authorized the Commissioner to allow a municipality to continue operating an unlicensed landfill if the municipality enters into an agreement with the Commissioner providing for an alternative method of solid waste disposal and an agreement to cease accepting waste at the unlicensed landfill on a date certain. P.L. 1993, ch. 378, §§ 5, 6, enacting 38 M.R.S.A. § 1310-N(6-B).]

As part of the original statute establishing the remediation and closure program, the Legislature also enacted the following provision concerning the costs of such remediation and closure:

Subject to the availability of funds, the department shall issue grants to eligible municipalities for 75% of the cost of closure and for 90% of the cost of remediation.

38 M.R.S.A. § 1310-F.

To provide funds for this effort, the Legislature authorized, and the voters approved, a series of bond issues, providing money to the Department to distribute to affected municipalities on the basis of priorities established by the Department by rule. The first of these bond issues, for $8 million, became available after its approval by the voters in 1987. P.&S.L. 1987, ch. 70. Apparently, your Committee has been advised that the Department now seeks to submit legislation to reduce the percentage of the State's participation in the closure and remediation of unlicensed municipal solid waste landfills. Your question, therefore, is whether the passage of such legislation would constitute a "mandate" within the meaning of the constitutional provision.

In the view of this Department, the reduction of such funding would not constitute a "mandate." As indicated above, the legislative requirement at issue is the provision of the original statute, passed in 1987, directing that unlicensed municipal solid waste landfills either come into compliance with operating rules so as to obtain licenses or close. The fact that the Legislature chose, at the same time, to establish a funding program to assist municipalities in complying with this mandate does not make the mandate contingent upon the continuing provision of such funds. Thus, if the Legislature were to reduce, or even eliminate, such funding in the future, such action would not alter the status of the original requirement as being one which had been imposed upon the municipalities of the State in advance of November 23, 1992.

I hope the foregoing answers your question. Please feel free to reinquire if further clarification is necessary.

Sincerely,

MICHAEL E. CARPENTER
Attorney General

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