Opinion of the Justices to the Senate

• Decision Date: 12 June 1986
• Citation: 493 N.E.2d 859,397 Mass. 1201
• Parties: OPINION OF THE JUSTICES TO THE SENATE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 859

493 N.E.2d 859

397 Mass. 1201

OPINION OF THE JUSTICES TO THE SENATE.

Supreme Judicial Court of Massachusetts.

June 12, 1986.

To the Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit their answers to the questions set forth in an order adopted by the Senate on March 26, 1986, and transmitted to this court on April 9, 1986, concerning a bill pending in the Senate regulating the management of low-level radioactive waste. The order refers to Senate No. 1172, as do the questions transmitted to us. The Senate clerk also transmitted to us a copy of Senate No. 1763 which was substituted for Senate No. 1172. All the questions refer to § 29 of the pending bill and make sense only as referring to § 29 of Senate No. 1763. ¹

The Senate order states that "[t]here is an urgent need to establish a program for the management and disposal of all low-level radioactive waste generated in the commonwealth so that such waste may be disposed of without threat to the health, safety or welfare of the people" as described in the February, 1985, and January, 1986, reports of the Massachusetts Special Commission on Low-Level Radioactive Waste. The order continues, adding that "[t]here is an urgent need to create such program in accordance with requirements of federal law which established deadlines for each state to enact legislation to deal satisfactorily with the problem of low-level radioactive waste management and disposal" by July 1, 1986, "or else face significant monetary penalties and obstacles in disposing of such waste." The order represents further that the General Court has grave doubts as to its power to enact Senate No. 1763 "while it contains and mandates the procedures required by" St.1982, c. 503, which calls "for certain certification and approval procedures to be followed by the General Court and the voters before any low-level radioactive waste disposal facility may be constructed or operated within the commonwealth." Statute 1982, c. 503, approved by the people at the 1982 State election, provides in § 4 that "[n]o facility for the disposal or storage of low-level radioactive wastes shall be constructed or operated within the Commonwealth unless: (a) [its] construction and operation ... have been approved by a majority of the voters voting thereon in a state-wide general election; and (b) the General Court has found, and has so certified by resolution duly adopted by majority vote of the members of each House: (i) that the particular technology or means to be utilized at the proposed waste facility is superior to all other available technologies or means from the combined standpoints of overall cost, reliability, safety, environmental impact, land-use planning, and avoiding potentialsocial and economic dislocation; and (ii) that the site of the proposed waste facility is superior to all other available sites from the combined standpoints of overall cost, reliability, safety, environmental impact, land-use planning, and avoiding potential social and environmental dislocation."

The Senate asks for our opinion "upon the following important questions of law:

"(1) In the absence of an agreement with the Nuclear Regulatory Commission under section 274 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. section 2021, providing for discontinuance of the regulatory authority of said commission and the assumption of such authority by the commonwealth would the enactment of the 'legislative certification' and 'voter approval' requirements contained in said section twenty-nine of said Senate No. 1172 be constitutionally invalid under the Constitution of the United States, Article VI, Clause 2, in that such requirements impermissibly invade the realm of radioactive safety regulation preempted by Congress and impermissibly conflict with the regulatory authority over radioactive safety matters exclusively delegated by Congress to the Nuclear Regulatory Commission?

"(2) Would the enactment of the 'legislative certification' requirement contained in said section twenty-nine of said Senate No. 1172 violate Article XXX of Part the First of the Constitution of the Commonwealth, requiring separation of legislative, executive and judicial powers, in that it requires review and approval by the General Court of an executive licensing decision and would thereby encroach upon both executive and judicial powers?

"(3) Would the enactment of the 'legislative certification' requirement contained in said section twenty-nine of said Senate No. 1172 violate the due process guarantees contained in Articles I, X, XI and XII of Part the First of the Constitution of the Commonwealth and the Fourteenth Amendment to the Constitution of the United States, in that it would defeat or substantially impair the vested rights of a developer or operator of a waste management facility, compelled by section 3-7 of chapter 164 Appendix of the General Laws to obtain all necessary licenses, permits and approvals prior thereto, by subjecting such developer or operator to a fact-finding process (a) as to which he has no right of participation, opportunity to be heard, or appeal, and (b) which has no right of participation, opportunity to be heard, or appeal, and (c) which has no reasonable relationship to the legitimate exercise of legislative powers?

"(4) Would the enactment of the 'legislative certification' requirement contained in said section twenty-nine of said Senate No. 1172 violate the provisions of Chapter I, Section I, Article II of Part the Second of the Constitution of the Commonwealth in that it interferes with the veto power of the governor?

"(5) Would the enactment of the 'voter approval' requirement contained in said section twenty-nine of said Senate No. 1172 violate the provisions of Articles X, XI, XII and XXX of Part the First and of Chapter I, Section I, Article IV of Part the Second, of the Constitution of the Commonwealth, in that it constitutes a standardless delegation of legislative power to the electorate which is beyond the power of the General Court to effect and which cannot be effectively reviewed by the courts?

"(6) Would the enactment of the 'voter approval' requirement contained in said section twenty-nine of said Senate No. 1172 violate Article XXX of Part the First of the Constitution of the Commonwealth, in that it authorizes the exercise by the electorate of judicial powers and of executive powers in a manner which cannot be effectively reviewed by the courts?

"(7) Would the enactment of the 'voter approval' requirement contained in said section twenty-nine of said Senate No. 1172 violate Article XLVIII of the Articles of Amendment to the Constitution of the Commonwealth, in that (a) the subject matter to be submitted to the voters is excluded from referendum by said Article XLVIII; and (b) the initiative and referendum procedure for enacting legislation pursuant to said section thirty ² does not conform to the constitutional requirements of said Article XLVIII?

"(8) Do the provisions of said section twenty-nine of said Senate No. 1172 interfere with interstate commerce in violation of Article 1, Section 8 of the Constitution of the United States in that said section twenty-nine applies to facilities 'not solely for the disposal or storage of low-level waste generated within the commonwealth through medical or bio-research applications'? (emphasis added)." ³

Our duty to furnish advisory opinions is limited to "solemn occasions." Mass. Const. Part II, c. 3, art. 2, as amended by art. 85 of the Amendments. Opinion of the Justices, 385 Mass. 1201, 1202-1203, 434 N.E.2d 960 (1982). Opinions of the Justices, 383 Mass. 895, 915, 424 N.E.2d 1092 (1981). The Justices have generally viewed an occasion to be solemn if a branch of the Legislature has before it a bill which it seriously doubts it has power or authority to enact. See Opinion of the Justices, 386 Mass. 1201, 1219-1220, 436 N.E.2d 935 (1982). Each question posed to us concerns, but only indirectly, the constitutionality of the "legislative certification" and "voter approval" provisions of St.1982, c. 503, § 4. Questions as to the construction or constitutionality of existing statutes do not present a "solemn occasion." Answer of the Justices, 375 Mass. 790, 793, 374 N.E.2d 1345 (1978). Answer of the Justices, 373 Mass. 867, 870-872, 366 N.E.2d 730 (1977). Opinion of the Justices, 231 Mass. 603, 607, 122 N.E. 763 (1919). Opinion of the Justices, 208 Mass. 614, 615-616, 95 N.E. 927 (1911).

The Justices have recognized, however, that an exposition of existing law may be appropriate "in answering specific questions as to the power and authority of the Legislature to enact a pending bill." Opinion of the Justices, 314 Mass. 767, 771, 49 N.E.2d 252 (1943). See Opinion of the Justices, 231 Mass. at 607. The fact that we might be commenting on the constitutionality of existing legislation will not preclude our answering a question if, in the circumstances, there is a "solemn occasion."

Although the question is close, we think there is a solemn occasion. Section 29 seeks to implement the general provisions of St.1982, c. 503, § 4, requiring legislative certification and voter approval of the construction and operation of a proposed low-level radioactive waste facility. If these requirements are unconstitutional, considerable time, effort, and public funds necessary to obtaining legislative certification and voter approval would be expended needlessly. The Senate also expresses concern that uncertainties relating to the implementation of St.1982, c. 503, § 4, may interfere with Federal obligations regulating construction and operation of any proposed disposal or storage facility. In dealing with a comprehensive proposed bill concerning low-level radioactive waste management, the Senate is confronted with the question whether, in the context of the detailed, new procedures set...