AGO 97044.

• Court: Nebraska

Nebraska Attorney General Opinions 1997. AGO 97044. DATE: August 22, 1997SUBJECT: Constitutional Considerations When Drafting Legislation Imposing a Temporary Moratorium on Construction of Hog Confinement Facilities REQUESTED BY: Senator Merton L. Dierks Nebraska State LegislatureWRITTEN BY: Don Stenberg, Attorney General Timothy J. Texel, Assistant Attorney General You have requested the opinion of this office concerning the authority of the State of Nebraska to impose a temporary moratorium on the construction and permitting of hog confinement facilities and associated waste handling systems, and constitutional issues to be considered to avoid defects in the legislation. You specifically asked the following two questions: 1. Does the State of Nebraska have authority under the existing Nebraska Environmental Protection Act, the Federal Clean Water Act, or any other provision of law, to impose such a moratorium on permitting hog confinement facilities or any subcategory of the same. If so, under what conditions or justification may this be done? 2. What constitutional considerations must be considered if the Legislature wished to impose a moratorium through legislation and how could legislation be drafted to avoid constitutional defects? Authority to Impose a Moratorium If the State of Nebraska has the authority to impose a temporary moratorium on construction of hog confinement facilities, the authority would derive from the Legislature's ability to protect the public's health, safety, and welfare. The State, as a sovereign, has an inherent right to act in order to protect the public's vital interests, such as the health, morals, comfort, and general welfare of the people, known as the police power. See, e.g., Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400 (1983); Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 393 (1934). A temporary moratorium would be based on the state's police power, to protect the public's health, safety, and welfare, as well as the state's environmental resources. The Legislature's authority would not be derived from state or federal law, including the Nebraska Environmental Protection Act or the federal Clean Water Act. We are not aware of anything in the Nebraska Environmental Protection Act or the federal Clean Water Act of 1977 which specifically authorizes or proscribes moratoriums on livestock confinement facilities. The Clean Water Act (an amendment to the Federal Water Pollution Control Act of 1948) states that unless otherwise expressly provided, nothing in the chapter precludes states from adopting or enforcing requirements for the control or abatement of pollution. 33 U.S.C § 1370(1). The only specified limitation is that state standards must be no less stringent than the federal standards. Id. The statute also states nothing in the chapter shall be construed to impair a state's rights or jurisdiction over the waters of that state. 33 U.S.C. § 1370(2). We reviewed the federal regulations promulgated under the Clean Water Act to control pollution from swine and other livestock feedlots, located at 40 CFR, §§ 412.10 to 412.16 (1996). Our review of these regulations did not disclose any specific prohibition against temporary moratoriums. It does not appear that the federal Clean Water Act or its related regulations directly address moratoriums on livestock confinement facilities. The issue then turns on what factors a court would consider when reviewing a challenge to a statutory moratorium enacted under the state's police power. Constitutional Considerations When Reviewing Moratoriums We point out that our review will be general in nature, since we do not have specific legislative language before us. We will attempt to address issues that parties challenging a moratorium are likely to raise. Before turning to specific factors, there are several general principles which should be mentioned. One general principle of law is that courts view state statutes with a presumption of validity and constitutionality. Bridgeport Hydraulic v. Council on Water, 453 F. Supp. 942, 946 (1977), aff'd 439 U.S. 999 (1978); Sun Oil Co. of Pennsylvania v. Goldstein, 453 F.Supp. 787, 791, aff'd 594 F.2d 859 (4th Cir. 1979); In re Application A-16642, 236...