Request By:
Ms. Jackie Swigart
Secretary
Department for Natural Resources
and Environmental Protection
Frankfort, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Department for Natural Resources and Environmental Protection is preparing a comprehensive program for the regulation of surface coal mining and reclamation in Kentucky to be submitted to the United States Secretary of Interior by March 3, 1980, for purposes of obtaining the primary authority (primacy) to regulate strip mining in Kentucky as envisioned in PL 95-87.
The Kentucky legislation must include state statutes and implementing regulations in harmony with the provisions of the federal law and regulations.
The department intends to propose legislation to the 1980 General Assembly and to promulgate the necessary regulations to comply with the federal requirements and have them take effect simultaneously upon formal approval of the state's program by the Secretary of Interior if and when he does so in the future. The proposed legislation, if enacted, would become law under an emergency clause when signed by the Governor.
You request our opinion as to the legality of such legislation and regulations which would contain the following statement:
"This Act (regulation) shall become effective simultaneously with the approval by the United States Secretary of Interior of the State program pursuant to the requirements of the Surface Mining Control and Reclamation Act of 1977 (P.L. 95-87)."
Federal officials of the Office of Surface Mining have requested the department's assurance that such provisions are permissible under Kentucky law.
Under Section 503 of the Federal Surface Mining Control and Reclamation Act of 1977 [P.L. 95-87], each state in which coal surface mining is being or may be conducted on nonfederal lands, and which wishes to assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations, with certain exceptions, must submit to the Secretary of Interior by a designated date a state program which demonstrates that such state has the capability of carrying out the provisions of the federal act and meeting its purposes through certain designated requirements. The Secretary shall approve or disapprove a state program, in whole or in part, within six months after the date the state program is submitted to him.
Section 60 of the Kentucky Constitution reads in part:
"No law, except such as relates to the sale, loan or gift of vinous, spirituous or malt liquors, bridges, turnpikes or other public roads, public buildings or improvements, fencing, running at large of stock, matters pertaining to common schools, paupers, and the regulation by counties, cities, towns or other municipalities of their local affairs, shall be enacted to take effect upon the approval of any other authority than the General Assembly, unless otherwise expressly provided in this Constitution."
With certain exceptions listed therein, Section 60 prohibits legislation from becoming effective upon the approval of authority other than the General Assembly.
At the outset, it is helpful to distinguish between a bill "becoming law" and a bill "becoming effective law". The proposed legislation if passed by both houses and properly enrolled would become law upon the signature of approval of the Governor. Sections 55 and 56, Kentucky Constitution. But "effective law" is another matter. The legislature may postpone the actual effective date. Where the legislature in a bill makes no mention of an effective date, and the bill has no emergency clause, then under § 55, Constitution, the bill becomes effective 90 days after the adjournment of the session. Where the legislature inserts an emergency clause and provides that the bill will become law upon the signature of the governor, the bill could become effective at that point unless the legislature expressly declares some other effective date. Where a bill merely becomes law on a date that does not coincide with the effective date, "becoming law" merely indicates the end of the legislative process. The effective date then is the date the law can be applied or used.
The question here is: May the General Assembly condition the effectiveness of this coal legislation upon the approval of the Secretary of Interior under Kentucky's Constitution.
Under the Supremacy Clause [Art. VI, Cl. 2, U.S. Const.], congressional enactments that do not exclude all state legislation in the same field nevertheless override state laws with which they conflict.
Jones v. Rath Packing Co., 430 U.S. 519, 51 L. Ed. 2d 604, 97 S. Ct. 1305 (1977). Thus, as was stated another way, in the appendix to
Youakim v. Miller (U.S.C.A. -7, 1977) 562 F.2d 483, "The constitution and the laws of the United States are the supreme law of the land.
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). Because of the Supremacy Clause of the United States Constitution, Article VI, Clause 2, states may not enact laws or regulations which are contrary to federal law. "
It is our opinion, when considering the Supremacy Clause of the United States Constitution and the Federal Strip Mining Law of 1977 and the necessity for enacting Kentucky strip mining legislation that will be in accord with the federal act, that the proposed clause conditioning the effectiveness of the Kentucky legislation on the approval of the Secretary of Interior does not violate any Kentucky constitutional section relating to the enactment of laws, including § 60. In a practical and legal sense § 60 does not exclude as acceptable "other authority" the Secretary of Interior, who merely administratively reflects the congressional will. And the Congress is in a collective sense and in reality the representative of the people of the United States. Our constitution must be so reasonably construed as to integrate our laws properly with the federal will. As mentioned above, such proposed legislation will be enacted, though not effective, at the time the Kentucky law is submitted to the Secretary of Interior, and thus would satisfy Section 503 of P.L. 95-87.
Similarly, the conditional effectiveness of implementing Kentucky regulations poses no legal problem. See OAG 64-391 and KRS Chapter 13, and specifically KRS 13.085. See also 2 Am.Jur.2d, Administrative Law, § 290. After all, the regulations can only be effective if the statutes, which the regulations are to implement, are effective.
Basically, the cases dealing with § 60 of the Constitution reflect that temporal or factual conditions are not the kind of conditions that § 60 was designed to prevent. The approval of the Secretary of Interior really is an administrative symbol of the overarching reality of the congressional strip mining act, which is essentially a factual condition. His approval or disapproval, under an objective guideline, of the Kentucky legislation is only in terms of whether the Kentucky law is in accord with the federal law on the same subject. The court, in
Clay v. Dixie Fire Ins. Co., 168 Ky. 315, 181 S.W. 1123 (1916) 1125, adopted the principle that the legislature may enact a law to take effect when certain conditions arise. The fact that the "conditions" took the form of enactments of foreign states was not the critical factor. Here the condition takes the form of the federal strip mining law.
In addition, the General Assembly would not be delegating its lawmaking powers to another. The proposed bill would be enacted into law, although with a delayed effective date. But the legislative process would be complete at that point, the enactment into law not depending upon any person or sets of persons. See Clay v. Dixie Fire Ins. Co., above. But its operative effect on some condition is another matter. In
County Board of Education v. Goodpaster, 260 Ky, 198, 84 S.W.2d 55 (1935), Judge Stanley for the court wrote that "Delegation of legislative power in relation to constitutional limitations means delegation of discretion as to what the law shall be. . . ." Here the Kentucky bill, if enacted, will be a complete piece of legislation. Whatever the law is, it will have been enacted completely by the General Assembly.
The Clay case was cited approvingly in
Duncan v. Smith, Ky., 262 S.W.2d 373 (1953), the court holding that the Uniform Support of Dependents Act, which would become effective upon other states enacting a similar law, was upheld as being constitutional.
In summary, the language in the proposed strip mining legislation conditioning the effectiveness on the approval of the Secretary of Interior would be constitutional.