Can a Virginia city or county pass a local ordinance that overrides state or federal law, for example one that bans uranium mining or strips corporations of their state-law rights?

Plain-English summary

A Virginia delegate asked whether a locality could adopt an ordinance that overrides state or federal law or diminishes legal rights. The request described model provisions on corporate mining, corporate standing, and a new "bodily trespass" cause of action. The AG answered the general legal question. As the opinion's footnote explains, the office declined to issue a ruling on the supplied local ordinance itself.

The AG concluded that a locality cannot preempt or nullify state or federal law. The Dillon Rule limits localities to powers granted or necessarily implied by the General Assembly, and Virginia Code section 1-248 requires local ordinances to be consistent with state and federal law. A locality cannot forbid activity expressly sanctioned by the General Assembly or impose criminal liability on an entity operating in compliance with state law.

The opinion cited state mining-permit and radiation-control statutes. Because those schemes are comprehensive, the AG said local power to pass ordinances relating to corporate mining and chemical or radioactive activities "is limited" and the state "may be said to 'occupy the entire field.'" It did not say localities have no authority in every aspect of mining. It also said a mining ordinance must be reasonable, clear, and avoid undue burdens on corporate rights or Commerce Clause violations; it did not find a particular provision unconstitutional on that ground.

Currency note

This opinion was issued in 2008 and discusses statutes then codified in Title 45.1. Check current law and the actual text of a proposed ordinance before applying its general analysis.

What the opinion means for you

Local officials and counsel

Test a proposed ordinance against the locality's delegated powers and any conflicting state or federal law. State regulation of mining and radiation limits local authority, but the opinion does not draw a complete boundary for every local mining rule. It offers no separate holding on the "bodily trespass" proposal, which appears only among the examples in the request.

Residents and regulated businesses

The AG concluded a locality cannot impose criminal liability on an entity operating in compliance with state law or prevent state or federal agencies from performing duties prescribed by law. Whether a specific local ordinance does that requires examining its text against the governing laws; this opinion did not adjudicate the supplied model ordinance.

Common questions

Q: Can a Virginia locality nullify a state or federal law by ordinance?
A: No. The AG said such an ordinance would be unconstitutional under Virginia's rule that local ordinances must be consistent with state and federal law.

Q: Did the AG ban all local regulation of mining?
A: No. It said comprehensive state mining and radiation schemes limit local power and the state may occupy the field. The opinion did not identify every local mining measure that would conflict.

Q: Did the AG rule on the model ordinance's bodily-trespass provision?
A: No. The opinion lists that proposed cause of action in the request's background but gives no separate analysis or conclusion about it.

Q: Did the AG find a Commerce Clause violation in the model ordinance?
A: No. It stated that a mining ordinance must not unduly burden corporate rights or violate the Commerce Clause to survive a constitutional challenge.

Background and statutory framework

The opinion applies Virginia's Dillon Rule and Code section 1-248's supremacy language. It cites the state's permit system for mining and uranium exploration, radiation regulation by the Department of Health and State Board of Health, and constitutional rules assigning court jurisdiction to the General Assembly. These authorities support the AG's general conclusion that localities may not negate superior law or legal rights without specific authority. The opinion addresses the supplied model ordinance only as an example and expressly confines itself to general guidance.

Citations and references

Statutes:

• Va. Code Ann. § 1-248
• Va. Code Ann. § 2.2-505
• Va. Code Ann. § 15.2-102 (locality definition)
• Va. Code Ann. § 15.2-1102 (general police powers)
• Va. Code Ann. §§ 32.1-227 through 32.1-238 (radiation control)
• Va. Code Ann. §§ 45.1-180 through 45.1-197.18 (general mining)
• Va. Code Ann. §§ 45.1-272 through 45.1-285.10 (uranium exploration)
• Va. Const. art. VI, § 1

Cases:

• Commonwealth v. County Bd., 217 Va. 558 (1977), Dillon Rule
• Logan v. City Council, 275 Va. 483 (2008), Dillon Rule reaffirmed
• Blanton v. Amelia County, 261 Va. 55 (2001), local ordinances must conform to state law
• King v. County of Arlington, 195 Va. 1084 (1954), conformity requirement
• Klingbeil Mgmt. Group Co. v. Vito, 233 Va. 445 (1987)
• Allen v. Norfolk, 196 Va. 177 (1954), locality cannot forbid what state authorizes
• Wilkins v. West, 264 Va. 447 (2002), standing
• Va. Beach Beautification Comm'n v. Bd. of Zoning Appeals, 231 Va. 415 (1986), aggrievement
• Lynchburg v. Dominion Theatres, 175 Va. 35 (1940), state may occupy entire field
• Hanbury v. Commonwealth, 203 Va. 182 (1961), ordinance conflicting with state law of general application is invalid
• Nat'l Linen Serv. Corp. v. Norfolk, 196 Va. 277 (1954), Commerce Clause and local-ordinance reasonableness
• West Lewinsville Hgts. Citizens Ass'n v. Bd. of Supvrs., 270 Va. 259 (2005)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2008/08-072-Ingram.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Robert F. McDonnell, Attorney General

November 14, 2008

The Honorable Riley E. Ingram
Member, House of Delegates

Dear Delegate Ingram:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask several questions regarding the authority of a Virginia locality to adopt and enforce a local ordinance affecting the rights of corporations within its boundaries. Specifically you inquire[1] whether a locality may enact an ordinance that preempts or nullifies state or federal law or that diminishes, alters, or eliminates legal rights.

Response

It is my opinion that a Virginia locality may not enact an ordinance that preempts or nullifies state or federal law and that such an ordinance would be unconstitutional. Further, it is my opinion that a Virginia locality may not enact an ordinance that diminishes, alters, or eliminates legal rights, particularly where the state or federal government may be said to "occupy the field," unless given specific authority to do so by the General Assembly or the Congress of the United States.

Background

You provide an example of an ordinance promoted by a not-for-profit organization, which is headquartered outside of the Commonwealth. You note that the organization has developed a variety of ordinances ("model ordinances") that it seeks to have adopted by local governments. You relate that the model ordinances include provisions that: (a) prohibit corporations from mining or owning certain mineral estates within a town; (b) create a new strict liability cause of action ("bodily trespass"); and (c) deprive corporations of standing and other rights. You inquire concerning the constitutionality of these model ordinances.

Applicable Law and Discussion

Virginia follows the Dillon rule of strict construction regarding powers of localities.[2] "Under the Dillon Rule, municipal corporations and counties possess and may exercise only those powers expressly granted …, powers necessarily or fairly implied from such express powers, and those powers that are essential and indispensible."[3] The terms "locality" and "local government" include a "county, city, or town as the context may require."[4] Virginia courts consistently have held that "a local government may not 'forbid what the legislature has expressly licensed, authorized or required.'"[5]

Furthermore, § 1-248 expressly provides:

The Constitution and laws of the United States and of the Commonwealth shall be supreme. Any ordinance, resolution, bylaw, rule, regulation, or order of any governing body or any corporation, board, or number of persons shall not be inconsistent with the Constitution and laws of the United States or of the Commonwealth.

Consequently, a Virginia locality may not, by ordinance or otherwise, deny corporations rights specifically afforded to them by the Constitutions and laws of the United States and the Commonwealth of Virginia.

You specifically inquire about a model ordinance that regulates activities regarding certain mining activities. For example, the General Assembly has enacted and codified statutes governing the permitting process and the conduct of certain mining activities,[6] which would include exploratory mining of uranium deposits.[7] Specifically, Chapter 21 of Title 45.1 ("Exploration for Uranium Ore")[8] governs the mining of uranium in the Commonwealth. Section 45.1-274(A) prohibits "any person to commence any exploration activity … without first obtaining a permit to do so from the Chief [of the Division of Mines of the Department of Mines, Minerals and Energy]."

In § 32.1-228.1(A), the General Assembly has designated the Department of Health as the state radiation control agency. Section 32.1-229, which governs the powers and duties of the State Board of Health (the "Health Board"), authorizes the Health Board, in part, to:

1. Establish a program of effective regulation of sources of radiation for the protection of the public health and safety, including a program of education and technical assistance relating to radon that is targeted to those areas of the Commonwealth known to have high radon levels.
2. Establish a program to promote the orderly regulation of radiation within the Commonwealth, among the states and between the federal government and the Commonwealth and to facilitate intergovernmental cooperation with respect to use and regulation of sources of radiation to the end that duplication of regulation may be minimized.
3. Establish a program to permit maximum utilization of sources of radiation consistent with the public health and safety.
4. Promulgate regulations providing for (i) general or specific licenses to use, manufacture, produce, transfer, receive, acquire, own or possess quantities of, or devices or equipment utilizing, by-product, source, special nuclear materials, or other radioactive material occurring naturally or produced artificially, (ii) registration of the possession of a source of radiation and of information with respect thereto, and (iii) regulation of by-product, source and special nuclear material.

Pursuant to § 32.1-227(7), "source material" means "uranium or thorium, or any combination thereof, in any physical or chemical form; or ores that contain by weight one-twentieth of one percent (0.05 percent) or more of uranium, thorium, or any combination thereof."

Article VI of the Constitution of Virginia establishes the rights and powers of the judiciary. Specifically, Article VI, § 1 grants to the General Assembly the "power to determine the original and appellate jurisdiction of the courts of the Commonwealth." Standing may be established either by statute or by the courts in interpreting and applying those statutes.[9]

You ask whether a Virginia locality may impose criminal liability on an entity operating in compliance with federal and state laws or limit the authority of the state or the federal government employees to issue permits. Section 15.2-1102 confers general police powers on cities and towns which are not "expressly prohibited by the Constitution and the general laws of the Commonwealth, and which are necessary or desirable to secure and promote the general welfare of the inhabitants of the municipality and the safety, health, peace, good order, comfort, convenience, morals, trade, commerce and industry of the municipality and the inhabitants thereof[.]"

County and municipal ordinances must be consistent with the laws of the Commonwealth.[10] Such ordinances are inconsistent with state law when they cannot coexist with a statute.[11] "[A] local government may 'not forbid what the legislature has expressly licensed, authorized, or required.'"[12] While a local legislative body, in the exercise of its police powers, may have the authority to forbid an act where state law is silent on the subject, it cannot limit or forbid activities that expressly are sanctioned by the General Assembly.[13] Thus, if an entity operates in compliance with state law, a Virginia locality cannot impose a criminal liability on that entity. Likewise, a locality may not prohibit or limit the authority of state or federal agencies to carry out their duties as prescribed by law.

Article 8, Chapter 6 of Title 32.1, §§ 32.1-227 through 32.1-238, governs radiation control and is administered by the Health Board.[14] Due to the comprehensive nature of Article 8 and Chapter 21 of Title 45.1, the power of a Virginia locality to pass ordinances relating to corporate mining and chemical and radioactive activities is limited as the state may be said to "occupy the entire field."[15] Further, to survive a constitutional challenge, any ordinance regulating corporate mining must be reasonable in scope, clearly define prohibited conduct, and not unduly burden a corporation's rights or violate the Commerce Clause of the United States Constitution.[16]

Conclusion

Accordingly, it is my opinion that a Virginia locality may not enact an ordinance that preempts or nullifies state or federal law and that such an ordinance would be unconstitutional. Further, it is my opinion that a Virginia locality may not enact an ordinance that diminishes, alters, or eliminates legal rights, particularly where the state or federal government may be said to "occupy the field," unless given specific authority to do so by the General Assembly or the Congress of the United States.

Thank you for letting me be of service to you.

Sincerely,

Robert F. McDonnell
Attorney General

1. You provide a copy of an ordinance enacted by a locality in Virginia. Attorneys General consistently have declined to issue official opinions on local ordinances or matters purely of local concern. See, e.g., Op. Va. Att'y Gen.: 2007 at 105, 107 n.2; id. at 84, 88 n.1; 2004 at 159, 160; 1976-1977 at 17, 17. However, I will provide guidance and address your questions in a general manner.

2. See Commonwealth v. County Bd., 217 Va. 558, 573, 232 S.E.2d 30, 40 (1977).

3. Logan v. City Council, 275 Va. 483, 494, 659 S.E.2d 296, 302 (2008).

4. See VA. CODE ANN. § 15.2-102 (2008) (applying definition to Title 15.2).

5. Blanton v. Amelia County, 261 Va. 55, 64, 540 S.E.2d 869, 874 (2001) (quotation not identified); see also Klingbeil Mgmt. Group Co. v. Vito, 233 Va. 445, 449, 357 S.E.2d 200, 202 (1987); King v. County of Arlington, 195 Va. 1084, 1090, 81 S.E.2d 587, 591 (1954) (noting fundamental rule that local ordinances must conform to and not be inconsistent with state's public policy and statutes).

6. See VA. CODE ANN. tit. 45.1, ch. 16, §§ 45.1-180 to 45.1-197.18 (2002 & Supp. 2008) (codified in scattered sections).

7. See § 45.1-181 (Supp. 2008) (providing that "[i]t shall be unlawful for any operator to engage in any mining operation in Virginia, without having first obtained from the Department [of Mines, Minerals and Energy] a permit to engage in such operation and paying a fee …. A permit shall be obtained prior to the start of any mining operation").

8. See § 45.1-272 (not set out), §§ 45.1-273 to 45.1-285, §§ 45.1-285.1 to 45.1-285.10 (not set out) (2002).

9. See Wilkins v. West, 264 Va. 447, 458, 571 S.E.2d 100, 106 (2002) ("Merely advancing a public right or redressing a public injury cannot confer standing on a complainant."); see also Va. Beach Beautification Comm'n v. Bd. of Zoning Appeals, 231 Va. 415, 419, 344 S.E.2d 899, 902 (1986) (holding that for party to be "aggrieved," "it must affirmatively appear that such person had some direct interest in the subject matter of the proceeding that he seeks to attack").

10. See Blanton, 261 Va. at 63, 540 S.E.2d at 873-74; Klingbeil, 233 Va. at 449, 357 S.E.2d at 202; King, 195 Va. at 1090, 81 S.E.2d at 591.

11. See Blanton, 261 Va. at 64, 540 S.E.2d at 874; King, 195 Va. at 1091, 81 S.E.2d at 591; West Lewinsville Hgts. Citizens Ass'n. v. Bd. of Supvrs., 270 Va. 259, 265-66, 618 S.E.2d 311, 314 (2005).

12. Blanton, 261 Va. at 64, 540 S.E.2d at 874 (quotation not identified).

13. See Allen v. Norfolk, 196 Va. 177, 180, 83 S.E.2d 397, 399-400 (1954).

14. See VA. CODE ANN. § 32.1-229 (Supp. 2008) (listing powers and duties of Health Board, including establishment of program to regulate sources of radiation).

15. See Lynchburg v. Dominion Theatres, Inc., 175 Va. 35, 40, 7 S.E.2d 157, 159 (1940); Va. Op. Att'y Gen.: 2007 at 59, 60; 2001 at 141, 142; 1983-1984 at 86, 87; c.f. King, 195 Va. at 1087-88, 81 S.E.2d at 590 (noting that where state did not occupy entire field, locality could govern by ordinance); see also Hanbury v. Commonwealth, 203 Va. 182, 185, 122 S.E.2d 911, 913 (1961) (noting that ordinance conflicting with state law of general character and state-wide application is invalid).

16. See Nat'l Linen Serv. Corp. v. Norfolk, 196 Va. 277, 280, 83 S.E.2d 401, 403 (1954).