ELR Citation: ELR 21500
No(s). s. 91-6031 et al (2d Cir. Aug 8, 1991)

The court rules that the Low-Level Radioactive Waste Policy Amendments Act does not violate the Tenth or Eleventh Amendments to, or the Guarantee Clause of, the U.S. Constitution. The Act requires states to provide for proper disposal of low-level radioactive waste (LLRW). If a state fails to do so by January 1, 1996, it may be required to take title to, and possession of, the waste, and it may be liable for damages incurred by LLRW generators and owners from whom the state failed to take possession. Relying on U.S. Supreme Court precedent on the Tenth Amendment holding that states must find protection from congressional regulation through the national political process, the court observes that the Act is a paragon of legislative success, promoting state and federal comity in a fashion rarely seen in national politics. The court rejects the allegation that the "take title" provision of the Act is the product of a grievous defect in the political process. The court further rejects the argument that the Tenth Amendment imposes some substantive limitation on federal power that would forbid the take title provision. Although the Supreme Court recently cited its 1911 decision in Coyle v. Smith, which found substantive Tenth Amendment limitations on congressional action, Coyle v. Smith was concerned with equality in dignity and power among the states, and that concern is not at issue in the current case where the motivating force of the Act is identical treatment of all states. The court next holds that the take title provision does not violate principles of federalism. Relying on precedent, the court further holds that the Act does not violate the Eleventh Amendment. Finally, the court finds that the argument that the Act violates the Guarantee Clause is analytically indistinct from the arguments supporting sovereign immunity under the Tenth Amendment.

Counsel for Plaintiff-Appellant
Peter Schiff, Deputy Solicitor General
State Capitol, Albany NY 12224
(518) 474-2121

Counsel for Defendants-Appellees
Jeffrey P. Kehne
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: MESKILL, PIERCE, and McLAUGHLIN, Circuit Judges.