Can the Virginia General Assembly pass a law requiring a supermajority vote to lift the state's uranium mining moratorium?

Plain-English summary

Virginia banned uranium mining in 1982 through § 45.1-283, which directed state agencies not to accept permit applications until a permitting program was established by statute. No such program has been established, so the ban remained in effect. Delegate Danny Marshall, whose district included the area most affected, asked whether the General Assembly could enact a statute requiring a supermajority vote to lift the moratorium, locking in the ban against future ordinary-majority repeals.

AG Cuccinelli concluded the General Assembly cannot do that by statute. The Virginia Constitution itself prescribes the majority threshold for ordinary legislation. Article IV, § 11(d) provides that "a majority of those voting in each house, which majority shall include at least two-fifths of the members elected to that house" suffices for a bill to become law. The Constitution sets a different (higher) bar only for certain subjects like creating new offices.

A simple statute purporting to require a supermajority for a particular future bill would conflict with this constitutional rule and would be unenforceable: a future majority could pass the repeal, and "[w]here statutory enactments … come into conflict with constitutional principles, the latter must prevail" (Owens-Corning Fiberglass Corp.). The only way to impose a supermajority requirement is by constitutional amendment.

Currency note

This opinion was issued in 2010. 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.

Common questions

Q: Are there subjects in the Virginia Constitution that already require a supermajority?
A: Yes. Article IV, § 11(d) itself requires "the affirmative vote of a majority of all the members elected to each house" for bills creating or establishing a new office. The Constitution can prescribe a higher threshold; an ordinary statute cannot.

Q: Could the General Assembly use a constitutional amendment?
A: That is the only route. Amending the Virginia Constitution requires the proposed amendment to pass two separately elected General Assemblies and then to be ratified by the voters.

Q: Did the uranium moratorium itself need a supermajority?
A: No. The moratorium statute (§ 45.1-283) was enacted by ordinary legislative majority, and the same kind of ordinary majority can repeal it. The point of the proposed supermajority bill was to make repeal harder, which is what the AG said requires a constitutional amendment.

Q: What about a sunset or referendum requirement?
A: The opinion did not address those tools. Some legislative procedures (referendum approval, automatic sunset, supermajority by chamber rule) are sometimes used in lieu of substantive supermajority rules, with their own constitutional and legal limits.

Background and statutory framework

Section 45.1-283 banned uranium mining by prohibiting any "agency of the Commonwealth" from accepting permit applications until a permitting program existed. The legislative history reflects in 1982 Va. Acts ch. 269 included a public-policy statement that improper or unregulated uranium mining could harm public health and welfare. The only related program in place was for exploratory activity under § 45.1-273 and § 45.1-274(A).

Article IV, § 11(d) is the Virginia Constitution's basic vote-threshold rule for legislation. The doctrine that statutes yield to the Constitution in case of conflict was reiterated in Owens-Corning Fiberglass Corp.

Citations

• Va. Const. art. IV, § 11(d) (legislative vote requirements)
• Va. Code Ann. § 45.1-283 (uranium mining moratorium)
• Va. Code Ann. §§ 45.1-273, 45.1-274(A) (exploratory activity)
• Commonwealth v. Owens-Corning Fiberglass Corp., 238 Va. 595 (1989) (Constitution prevails over statute)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-021-Marshall.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II

900 East Main Street
Richmond, Virginia 23219
804-786-2071

Attorney General

March 31, 2010

The Honorable Danny W. Marshall, III
Member, House of Delegates
P.O. Box 439
Danville, Virginia 24543

Dear Delegate Marshall:

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 note that the effects of uranium mining in Virginia would impact only a few select localities, including your region. Therefore, you seek guidance concerning a bill that would require a supermajority vote by the General Assembly to lift the current moratorium on uranium mining.

Response

It is my opinion that the Constitution of Virginia must be amended prior to the enactment of any bill that would require a "super majority" vote to lift the moratorium on uranium mining.

Applicable Law and Discussion

Pursuant to § 45.1-283, the General Assembly has effectively banned the mining of uranium in Virginia. Section 45.1-283 prohibits "any agency of the Commonwealth" from accepting "permit applications for uranium mining … until a program for permitting uranium mining is established by statute."[1] I find no statutes that have established a program for uranium mining. The only statutory program in existence related to uranium is limited to exploratory activity.[2]

The Virginia Constitution provides that bills become law when "a majority of those voting in each house, which majority shall include at least two-fifths of the members elected to that house," vote in favor of the bill.[3] Given this express constitutional requirement, an amendment to the Constitution would be required to impose a "super majority" vote on any particular subject. Without such an amendment, the Constitution authorizes the General Assembly to overturn the existing ban by majority vote. Therefore, any law requiring a supermajority vote would be ineffectual absent such amendment. "Where statutory enactments … come into conflict with constitutional principles, the latter must prevail."[4]

Conclusion

Accordingly, it is my opinion that the Constitution of Virginia must be amended prior to the enactment of any bill that would require a "super majority" vote to lift the moratorium on uranium mining.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

1. See also 1982 Va. Acts ch. 269, at 426, 427 (enacting § 42.1-272 (not set out in Code), which declares public policy that improper and unregulated uranium mining can adversely affect health, safety, and general welfare of Commonwealth's citizens; noting also that additional statutes may be necessary to assure that any such mining does not adversely affect environment or public health and safety).
2. See VA. CODE ANN. § 45.1-274(A) (2002) (requiring permit to commence exploration activity "as defined herein"). Section 45.1-273 defines "exploration activity" as that "limited to the drilling of test holes or stratigraphic or core holes … for the purpose of determining the location, quantity, or quality of uranium ore."
3. VA. CONST. art. IV, § 11(d). I note that bills on certain subjects, such as ones creating or establishing a new office, require "the affirmative vote of a majority of all the members elected to each house." Id.
4. Commonwealth v. Owens-Corning Fiberglass Corp., 238 Va. 595, 600, 385 S.E.2d 865, 868 (1989).