ELR Citation: ELR 21082
No(s). s. 91-543 et al (U.S. Jun 19, 1992)

The Court holds that provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985 that were intended to encourage states to provide for the disposal of low-level radioactive waste (LLRW) by conditioning grants, imposing disposal surcharges, and denying access to disposal sites, do not violate the Tenth Amendment, but a provision requiring states to take title to and assume liability for LLRW if they fail to create disposal sites or enter into compacts with states that have such sites violates the Tenth Amendment. The Act's conditional grant provision authorizes states with disposal sites to impose a surcharge on LLRW received from other states, authorizes the Secretary of Energy to collect a portion of the surcharge and place it in an escrow account, and allows states achieving a series of milestones to receive portions of this account. The Court first holds that the initial step of this scheme is an unexceptional exercise of Congress' power to authorize states to burden interstate commerce. Whether or not states would be permitted to burden the interstate transport of LLRW in the absence of Congress' approval, states can clearly do so with Congress' approval, which is what the Act provides. The second step is simply a federal tax on interstate commerce, which petitioners do not claim is an invalid exercise of Congress' commerce or taxing powers. The third step is a conditional exercise of Congress' authority under the Spending Clause of the U.S. Constitution, and petitioners do not contend that Congress has exceeded its authority here. The Court notes that the Spending Clause has never been construed to deprive Congress of the power to structure federal spending in this manner. Accordingly, the Court holds that this provision is well within the authority of Congress under the Commerce and Spending Clauses. Because it is supported by affirmative constitutional grants of power to Congress, this provision is not inconsistent with the Tenth Amendment.

The Court next holds that the Act's provision allowing states and regional compacts with disposal sites to increase site access costs gradually and then deny access altogether does not intrude on the sovereignty reserved to the states by the Tenth Amendment, because it represents a conditional exercise of Congress' commerce power, along the lines of those the Court has previously held to be within Congress' authority. The affected states are not compelled by Congress to regulate, because any burden caused by a state's refusal to regulate will fall on those who generate waste and find no outlet for its disposal, rather than on the state as a sovereign.

Turning to the take-title provision, the Court holds that the petitioners' challenge to the provision is ripe for review, even though the provision will not take effect until January 1, 1996. All parties agree that New York must take action now in order to avoid the take-title provision's consequences, and no party suggests that the state's waste generators will have ceased producing waste by 1996. The Court next holds that the provision's requirements that states take title to LLRW and assume liability for generators' damages both "commandeer" state governments into the service of federal regulatory purposes, and are thus inconsistent with the Constitution's division of authority between federal and state governments. Further, the Act's alternative to this, that states regulate pursuant to Congress' direction, would present a simple command to state governments to implement legislation enacted by Congress, which the Constitution does not empower Congress to do. Because both of these alternatives, standing alone, are beyond Congress' authority, the Court holds that Congress lacks the power to offer the states a choice between the two, and the take-title provision is therefore inconsistent with the federal structure of government established by the Constitution. The Court further holds that the support of New York officials for the Act does not estop the state from asserting the Act's unconstitutionality. Further, the fact that the Act embodies a compromise among the states does not elevate the Act to the status of an interstate agreement requiring Congress' approval under the Contract Clause.

The Court next notes that, even if the petitioners' claim that the Act's conditional-funding and access-denial provisions are justiciable, these provisions cannot reasonably be said to deny any state a republican form of government, in violation of the Guarantee Clause. These two provisions represent permissible conditional exercises of Congress' authority under the Spending and Commerce Clauses, respectively. Further, the threats imposed by these provisions do not pose any realistic risk of altering the form or the method of functioning of New York's government.

Finally, the Court holds that the take-title provision is severable from the rest of the Act. Where Congress has enacted a statutory scheme for an obvious purpose, and where Congress has included a series of provisionsoperating as incentives to achieve that purpose, the invalidation of one of the incentives should not ordinarily cause Congress' overall intent to be frustrated. Also, the Act is still operative and it still serves Congress' objective of encouraging the states to attain local or regional self-sufficiency in the disposal of LLRW.

Three dissenting Justices would hold that the take-title provision of the Act is constitutional, because the Act was the product of cooperative federalism, in which the states bargained among themselves to achieve compromises for Congress to sanction. Further, New York should be estopped from asserting the unconstitutionality of the provision, which seeks to ensure that, after deriving substantial advantages from the Act, New York must live up to its bargain by establishing an in-state LLRW facility or assuming liability for its failure to act.

[The circuit court's opinion is published at 21 ELR 21500. Related pleadings and briefs are digested at ELR PEND. LIT. 66197.]

Counsel for Petitioner
Peter H. Schiff
Department of Law, State Capitol, Albany NY 12224
(518) 473-0330

Counsel for Respondent
Kenneth Starr, Solicitor General
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2201