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

Delegate Riley Ingram asked the Attorney General about a wave of "model ordinances" being marketed to Virginia localities by an out-of-state nonprofit. The model ordinances tried to do three things at once: ban corporate mining of certain minerals within a town's boundaries, create a brand-new strict-liability cause of action (called "bodily trespass") against corporations, and strip corporations of standing and other state-law rights. Could a Virginia locality enact any of those?

Attorney General Bob McDonnell said no, in two layers. First, every Virginia locality is bound by the Dillon Rule, it can exercise only those powers expressly granted by the General Assembly, necessarily implied from those, or essential and indispensable. Second, on top of the Dillon Rule, Va. Code § 1-248 spells out that any local ordinance must be consistent with the Constitution and laws of the United States and the Commonwealth. A local ordinance that tries to forbid what the General Assembly has expressly licensed, like uranium mining, or that tries to override federally created corporate rights or constitutional state-law standing rules, exceeds local authority and would be unconstitutional.

The opinion then walks through the uranium-mining example specifically. Virginia has a comprehensive uranium exploration regime under §§ 45.1-272 through 45.1-285.10 and a radiation control regime under §§ 32.1-227 through 32.1-238. The Health Board oversees radiation; the Department of Mines, Minerals and Energy issues the actual exploration permits. Because the General Assembly has occupied that field, a locality cannot pass an ordinance prohibiting or limiting what the state permitting system has authorized.

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. Title 45.1 has since been reorganized into Title 45.2 (Mines, Minerals and Energy), and Virginia's uranium moratorium and related provisions have had a winding legislative and judicial history since 2008.

Background and statutory framework

Virginia is a Dillon Rule state. Under that rule, as the Supreme Court of Virginia explained in Commonwealth v. County Bd. and reaffirmed in Logan v. City Council, "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." That doctrine alone constrains localities to the playbook the General Assembly has written.

Section 1-248 is the express conflict-and-supremacy statute. It says "any ordinance, resolution, bylaw, rule, regulation, or order of any governing body … shall not be inconsistent with the Constitution and laws of the United States or of the Commonwealth." Combined with longstanding cases like Blanton v. Amelia County, Klingbeil, and King v. County of Arlington, that creates a clean rule: localities cannot forbid what the legislature has expressly licensed, authorized, or required.

The opinion's most specific example is uranium. Section 45.1-274(A) provides that "any person [must] obtain[] a permit … from the Chief [of the Division of Mines of the Department of Mines, Minerals and Energy]" before commencing exploration. Section 45.1-181 lays out a parallel general mining-permit regime. Article 8 of Title 32.1, Chapter 6 (§§ 32.1-227 through 32.1-238) places radiation control with the State Board of Health. The combined scheme, the AG concluded, is comprehensive enough that the state "occupies the entire field." A local mining ban or local strict-liability cause of action would conflict with, and impermissibly add to, that field.

The opinion also addresses the standing question raised by the "model ordinance" denial of standing to corporations. Article VI, § 1 of the Virginia Constitution gives the General Assembly the power to set the courts' original and appellate jurisdiction. Wilkins v. West and Virginia Beach Beautification confirm that standing is set by statute or by courts applying statute. A local ordinance cannot strip courts of authority to hear a case or strip a litigant of statutorily granted standing.

What the AG concluded, point by point

Preempt or nullify state or federal law. A locality cannot do this. Allen v. Norfolk is the AG's leading citation: a local legislative body, exercising police power, "cannot limit or forbid activities that expressly are sanctioned by the General Assembly."

Diminish, alter, or eliminate legal rights. Same answer. Especially where the state or federal government has "occupied the field" (the AG cites Lynchburg v. Dominion Theatres and Hanbury v. Commonwealth for the field-preemption concept), a locality has no authority to substitute its own policy for the legislature's.

Impose criminal liability on someone obeying state or federal law. No. The AG specifically addressed this and concluded that if an entity is operating in compliance with state law, a Virginia locality cannot make it a crime to do so.

Restrict state or federal agencies from carrying out their duties. No. A locality cannot prohibit a state agency from issuing the permits the General Assembly authorized.

Constitutionality of the model ordinances generally. The opinion treats the corporate-rights-stripping provisions as constitutionally infirm on Commerce Clause grounds as well as state-law-preemption grounds, citing Nat'l Linen Serv. Corp. v. Norfolk for the proposition that a local ordinance regulating activity within the state must be reasonable, must clearly define the prohibited conduct, and must not unduly burden corporate rights or violate the U.S. Constitution's Commerce Clause.

What this meant at the time

For city and county attorneys (as of 2008)

When pitched a "model ordinance" from an outside advocacy group, especially one that restricts mining, denies corporate rights, or creates novel local causes of action, you had a clear analytical framework: run it through the Dillon Rule first, then through § 1-248, then check for field preemption in the relevant subject area. The AG opinion did not say all environmental or corporate-accountability local ordinances are unlawful, just that ones in fields the General Assembly has occupied are.

For mining and energy companies (as of 2008)

If a Virginia locality enacted a mining-restriction ordinance that conflicted with your state exploration or operating permits, this opinion supported a preemption defense in any enforcement action.

For local elected officials (as of 2008)

Even if you wanted to take a policy stand against an activity, you needed to channel that through the General Assembly, not through a local ordinance that the AG opinion warned would be ultra vires. Adopting one of the "model ordinances" exposed the locality to legal challenge and potential damages.

Common questions

Q: Can a Virginia locality do anything to address mining concerns in its community?
A: The AG opinion does not answer that question in detail. Localities have some role in land-use planning and zoning, but they cannot use those tools as a backdoor ban on conduct the General Assembly has expressly authorized. Local officials concerned about mining impacts generally have to lobby the legislature or work within whatever local-input mechanisms the state permitting regime provides.

Q: What is "field preemption" in this context?
A: When the state has built a comprehensive regulatory scheme for a subject, the General Assembly is said to "occupy the entire field," leaving no room for parallel local regulation. The AG's leading cases here are Lynchburg v. Dominion Theatres and Hanbury v. Commonwealth, plus a string of earlier AG opinions on the doctrine.

Q: Why does the opinion mention the Commerce Clause?
A: One of the model ordinances tried to ban corporations (which are interstate actors) from owning mineral estates within a town. The U.S. Constitution's Commerce Clause limits how states and localities can regulate interstate commerce, particularly when the regulation discriminates against out-of-state actors. National Linen Service is the AG's Virginia citation on this overlay.

Q: Can a local ordinance create new causes of action?
A: Generally, no. The General Assembly creates causes of action for the Commonwealth. The "bodily trespass" idea in the model ordinance was, as the AG read it, an attempted local creation of strict-liability tort liability, something well outside the powers Virginia has delegated to localities.

Q: What's the relationship between this opinion and home rule?
A: Virginia does not have constitutional home rule for cities and counties; instead, it has statutory delegations. That is why the Dillon Rule has so much bite here, the Commonwealth grants powers to localities, and those localities cannot expand the grant on their own.

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).