The Low-Level Radioactive Waste Management Act
Amendments of 1985 required States (alone or in compacts with other States)
to dispose of radioactive waste within their borders.
This was a proposed solution to the NIMBY problem (not in
New York State and Allegany and Courtland counties were
unable to comply with the law due to resistance from residents to proposed
radioactive waste sites and a lack of cooperation from neighboring States.
New York filed suit against the Federal government,
questioning the authority of Congress to regulate State waste management.
Oddly, a lot of New York State officials were in favor of
Of course, that doesnít matter.† Constitutional law
isnít about getting people to agree, itís about what the law says.† You
canít violate the Constitution, even if you get the relevant branches of
government to all agree to do it.
The US Supreme Court upheld two of the three provisions of
the Act under review, reasoning that Congress had the authority under the
Interstate Commerce Clause to use financial rewards and access to
disposal sites as incentives for state waste management.
First provision was financial rewards.† Basically
the States that donít accept waste (or are not part of compacts) are
charged a surcharge by States that have disposal sites.† But they donít
get the money, the money gets filtered through the Secretary of Energy and
provided back to the States creating the waste if they were able to build
a disposal site or get into a compact before the 1993 deadline.
States canít tax interstate commerce!† But this is
coming directly from the Federal government, and the States doing the
taxing donít get the money, so itís ok.
Second provision was access.† The surcharges will
increase every year, and at some point access would be completely denied.
Third provision, the take-title qualification,
stipulated that States must take legal ownership and liability for
low-level waste by 1996.† Alternately, they could enact legislation to
enact the Federal proposal.† The Court found that this crossed the line
distinguishing encouragement from coercion.
ďEither type of Federal action,Ē wrote Justice OíConnor,
ďwould commandeer State governments into the service of Federal
regulatory purposes, and would for this reason be inconsistent with the
Constitutionís division of authority between Federal and State
Basically, with the first two provisions, the States
would have had pay more $$$, but would have a choice if they wanted to
participate or not.† The third provision though didnít give the States a
choice.† No choice = coercion.
In addition, this provision would give the Federal government
regulatory authority over who owned the waste.† The Federal government
had no Constitutional authority to regulate wastes.
The part of the third provision, where the States were
told to enact the Federal program, was an attempt to get the States to
acquiesce to increased Federal authority to regulate something that
they couldnít Constitutionally regulate.
Federal government canít force States to enact State
The Supreme Court found that take-title qualification
violated the 10th Amendment.
In a dissent, it was claimed that history is by no means
supportive of the position that the Federal government had no authority
to regulate States.
Justice OíConnor argued that under the Articles of
Confederation, it was said that the Federal government had the power
to regulate States, but not individuals.† But the Constitution
flip-flopped and allowed regulation of individuals, but not
States.† The dissent claimed that this was just wrong.