(dissenting, with whom Liacos, J., joins). It has long been recognized that a governmental taking of property may be accomplished without the formal apparatus of eminent domain; a taking may result from a government regulation in a particular area. First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 315-316 (1987). This type of taking has been referred to as a “regulatory” taking or “inverse condemnation.” As noted by Justice Stevens, “However confusing some of our criminal procedure cases may be, I do not believe they have been as open-ended and standardless as our regulatory takings cases are.” Id. at 340 n.17 (Stevens, J., dissenting). Be that as it may, certain overarching precepts may be identified.
Any discussion of the law of regulatory takings must begin with the landmark case of Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). At issue in Mahon was the validity of a Pennsylvania statute “forbid[ding] the mining of anthracite coal in such way as to cause the subsidence of, among other *213things, any structure used as a human habitation, with certain exceptions . . . .” Id. at 412-413. It was admitted that the statute acted to destroy the coal company’s previously existing right to mine the coal beneath the affected structures notwithstanding any subsidence, but, the plaintiffs contended, the statute was nonetheless valid as a legitimate exercise of the State’s police power, for which no compensation need be provided. Id. at 413. The Court, speaking through Justice Holmes, disagreed, and in its opinion set out what have become the bedrock principles of regulatory takings law.
First, the Court noted, not every government action is a taking merely because the action incidentally diminishes property values. “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power.” Id. at 413. However, the Court recognized, that implied limitation is itself subject to limits, “or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts. The greatest weight is given to the judgment of the legislature, but it always is open to interested parties to contend that the legislature has gone beyond its constitutional power.” Id. Thus the Court advocated a kind of ad hoc balancing of the public interest served as against the private interest harmed.
In determining that “the legislature [had] gone beyond its constitutional power,” the Court reasoned that any public interest to be served by the statute was slight. The Court recognized that the Act was not justified as a protection of public safety since that “could be provided for by notice” to the surface landowner. Id. at 414. Rather, the Court considered the Act to be a species of economic regulation, designed to shift the cost of the. surface owners’ misfortunes onto the shoulders of the coal company. See id. at 416.
*214On the other hand, the Court calculated the private detriment to be great: “ ‘For practical purposes, the right to coal consists in the right to mine it.’ Commonwealth v. Clearview Coal Co., 256 Pa. St. 328, 331. What makes the right to mine coal valuable is that it can be exercised with profit. To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it.” Id. at 415. In the words of a Massachusetts case, the Act deprived the coal company’s property of “all practical value.” MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 641 (1970).
Later Supreme Court cases have expanded upon the Mahon formulation and, in so doing, have identified three factors which are of particular significance to the regulatory taking question: (1) the economic impact of the regulation; (2) its interference with reasonable investment-based expectations; and (3) the character of the governmental action. E.g., Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 493-495 (1987); Ruckleshaus v. Monsanto Corp., 467 U.S. 986, 1005 (1984); Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979). See Nassr v. Commonwealth, 394 Mass. 767, 770 (1985).
The court relies on the recent case of Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (1987), to explicate the question of when a regulation goes too far. I believe that the Keystone decision has no application to the matter in question.
In Keystone, the plaintiffs challenged the constitutionality of a statute superficially similar to that challenged in Mahon. The Pennsylvania statute, known as the Bituminous Mine Subsidence and Land Conservation Act, required coal companies to keep in the ground at least 50% of the coal beneath defined structures to protect those structures from subsidence damage. The coal companies in a facial attack on the statute sought to enjoin its enforcement alleging that it violated the takings clause of the Fifth Amendment. The companies neither alleged nor proved any specific injury; rather, they contended that the mere *215enactment of the statute constituted a taking. The Supreme Court concluded that the companies had not proven a taking.
The Keystone Court did not repudiate the principles of Mahon. Indeed the Court affirmed that “[t]he two factors that the [Mahon] Court considered relevant” — that is, the nature and extent of the public interest versus the nature and extent of the private harm — “have become integral parts of our takings analysis.” Id. at 485.
However, the Court considered the Subsidence Act analogous to a State’s “exercising its police power to abate activity akin to a public nuisance.” Id. at 488. There is nothing remarkable or that in any way diminishes traditional taking concepts by recognizing the equally established concept that a property owner cannot use his property in such a way as to constitute a public nuisance. Furthermore, the court concluded the Subsidence Act did not render mining of coal “commercially impracticable.” Id. at 493. Thus Keystone affirms the fundamental principles of Pennsylvania Coal Co. v. Mahon and its progeny, that any economic regulation that renders the existing use of the owners’ property commercially impractical and contrary to reasonable investment-backed expectations constitutes a taking. Applying this test, I conclude that the petition would effect an unconstitutional taking of property without just compensation and, therefore, the petition may not be certified.
It is undisputed that the effect of the petition is to shut down Yankee’s operations: Section 2 of the petition prohibits generation of electricity by means which result in the production of nuclear waste at commercial electric nuclear power plants on or after July 4, 1989. We take judicial notice of the fact that, in the current state of the art, it is impossible to produce electricity by nuclear fission without producing nuclear waste. Finally, it is public record that Yankee’s license does not expire until 1997.1
*216The economic impact of the regulation is catastrophic. Obviously it renders the production of nuclear power — Yankee’s reason for being in business — “commercially impracticable.” Furthermore, it converts an economically viable enterprise into an economic albatross. In testimony filed before the Nuclear Regulatory Commission, the Attorney General stated that, after a plant is irradiated “[b]oth the plant and plant site become nearly irreversibly committed to a nuclear facility. This is because much of the plant equipment will be made radioactive and because the site itself becomes (de-facto) a long-term radioactive waste storage facility since there is no approved storage facility available to receive the irradiated fuel.” Thus the Attorney General himself has conceded that an irradiated but inoperative nuclear power plant is nothing more than nuclear waste. Cf. Commissioner of Natural Resources v. S. Volpe & Co., 349 Mass. 104, 110-111 (1965) (court unable to tell from record whether all uses of land had been eliminated by regulation). We also take notice of the fact that after the plant ceases production Yankee will be left with the burden of decommissioning it. Atomic Energy Commission Reg. Guide 1.86; 50 Fed. Reg. 28,5600 (1985) (to be codified at 10 C.F.R. §§ 30, 40, 50, 51, 70 & 72) (burden of decommissioning); G. L. c. 233, § 70 (1986 ed.) (Federal law is judicially noticeable); 44 U.S.C. § 2507 (1982 ed.) (contents of Federal Register shall be judicially noticed). Thus, this is a classic case of a regulation leaving a landowner with only the burdens of ownership and none of the benefits. See MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 641 (1970).* 2
*217This is not a case of the government’s “freezing” a property into its existing use or prohibiting contemplated future uses not based upon reasonable investment-backed expectations. See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 138 (1978). On the contrary, the petition at issue here would eliminate altogether the existing primary use of Yankee’s property. Compare Penn Cent, with Pennsylvania Coal Co. v. Mahon, supra.
The government’s police power, however, depends to great extent on the nature of the government action. Thus, what was considered a taking in Mahon was deemed a valid police power regulation in Keystone because of a crucial difference in the nature of the government action. That is, in Mahon, the government action “served only private interests,” while in Keystone the government action was justified by health and safety concerns. Keystone, supra at 484. Similarly, in cases such as Mugler v. Kansas, 123 U.S. 623 (1887) (prohibiting manufacture of liquor); Hadacheck v. Sebastian, 239 U.S. 394 (1915) (prohibiting operation of brickyard in residential area); and Goldblatt v. Hempstead, 369 U.S. 590 (1962) (prohibiting excavation for sand and gravel below water line), the government may prohibit “noxious use of property” in the interest of public health and safety. Penn Central, supra at 145 (Rehnquist, J., dissenting).
Here, the basis for the governmental action is stated to be that it is “uneconomical and unwise to continue to generate electric power in the Commonwealth by means which result in the production of nuclear waste when there is no method for disposal of nuclear waste. The purpose of this Act is to protect the people of Massachusetts from the consequences of this uneconomical and unwise course . . . .” Thus, by its own terms, the petition seeks not to abate any public nuisance, but only to shelter the public from what its signers see as an economically unwise method of producing electricity.* * 3
*218Moreover, we must recognize that use of the property which is restricted by the statutes is one that is authorized by a Federal permit and thus calls into question the preemption doctrine. The Atomic Energy Act of 1954, 42 U.S.C. §§ 2011 et seq., gives the Federal government exclusive control over radiological safety issues involved in the construction and operation of nuclear power plants. Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190 (1983). Force of logic compels the conclusion that nuclear power, which is both permitted and extensively regulated by the government, cannot constitute a public nuisance.
The signers of the petition seek to impose upon two power companies and their ratepayers the cost of eliminating what the signers perceive to be an “uneconomical” means of producing power. Leaving aside the question of the extent to which it is the proper function of government to close down “uneconomical” businesses, this petition impermissibly seeks to impose upon two power companies and their ratepayers the transaction cost of shifting from an assertedly less economical means of producing power to some more economical means.* ** 4 It is a fundamental tenet that government may not single out a few citizens to bear burdens properly borne by the public as a whole. See Armstrong v. United States, 364 U.S. 40, 49 (1960); Pennsylvania Coal Co. v. Mahon, supra at 416.5
In sum, if enacted, the petition would render production of nuclear power at Yankee’s plant commercially impossible, *219thus upsetting Yankee’s reasonable expectation that, on the basis of its Federal license, it could continue to operate as a nuclear power plant until 1997. The petition, if enacted, would eliminate all commercial use of the property and convert an economic use to an economic burden on the owners. Hence, the Attorney General could not properly certify that the petition contained no excluded matter. 6 I therefore respectfully dissent.
It has been held that a license to operate a business is a protected property interest under the due process clause if it cannot be taken away from its holder before a time certain and in the absence of misconduct. Baer v. Wauwatosa, 716 F.2d 1117, 1122 (7th Cir. 1983). Thus, the petition at issue here might also be analyzed as effecting a taking of Yankee’s license, *216since the effect of the petition is to terminate Yankee’s business before that license expires. Compare Boston Elevated Ry. v. Commonwealth, 310 Mass. 528 (1942) (legislative termination of franchise in accordance with condition of grant for breach of the condition cannot be regarded as a taking).
The mere fact that a portion of Yankee’s property is affected may, despite the defendants’ assertions, indicate a taking. For while the United States Supreme Court has intimated that various parts of property are not to be “segmented” to determine whether there has been a taking, Keystone at 500-501, that interpretation of the Fifth Amendment of the Federal Constitution is not necessarily applicable to article 10 of the Declaration of Rights, which states that “no part of the property of any individual can, *217with justice, be taken from him, or applied to public uses, without his consent, or that of the representative body of the people” (emphasis added).
While we have upheld public regulations preserving existing uses, see Opinion of the Justices, 333 Mass. 773 (1955); Opinion of the Justices, 333 *218Mass. 773 (1955); Opinion of the Justices, 333 Mass. 783 (1955), we are aware of no case in which such a purpose was sufficient to eliminate the primary existing use of an individual’s property.
The petition does not address the economic cost of “acid rain” and the “greenhouse effect,” which is an environmental cost of producing electrical power by the conventional means of burning fossil fuel.
Thus, the instant case is to be distinguished from Miller v. Schoene, 276 U.S. 272 (1928), where landowners were required to cut down their cedar trees in order to prevent a blight on the State’s apple crop, an emergency measure necessary to preserve this important agricultural activity. No emergency is present here. Cf. Davidson v. Commonwealth, 8 Mass. App. Ct. 541, 549 (1979) (no taking where government took over operation of nursing home in emergency situation).
The Attorney General strenuously argues that the factual record is insufficient to establish a taking, and, therefore, that he may certify that the petition contains no excluded matter. Even were we to accept the Attorney General’s premise, his conclusion does not necessarily follow. The United States Supreme Court has expressed its hesitancy to address takings claims on less than a fully developed record. Pennell v. San Jose, 485 U.S. 1, 8-9 (1988). However, the justification for that Court’s hesitancy was an unwillingness to reach constitutional claims unnecessarily. Here, on the other hand, it is the express constitutional function of the Attorney General to examine the constitutional issues presented by an initiative petition to ensure that the rights of the individual under our State Constitution are adequately protected from majoritarian encroachment. Article 48 admonishes that the Attorney General “shall certify” that the petition contains no excluded matter. As we noted in Yankee One, the word “certify” in art. 48 means “to make certain, as a fact; to attest authoritatively; to verify. . . .” Yankee Atomic Elec. Co. v. Secretary of the Commonwealth, 402 Mass. 750, 757 (1988). That language would seem to indicate that if there is any reasonable possibility that the petition impinges on an excluded matter, it may not be certified. Thus the fact that a petition leaves open certain fact questions cannot justify the Attorney General in abdicating his constitutional function as gatekeeper against an initiative’s potential infringement upon important individual rights. Where the petition, read in light of both its apparent factual impact and officially noticeable facts, discloses a reasonable possibility that the petition contains an excluded matter, it is the Attorney General’s constitutional duty to deny certification.