Petition — Hartigan v. General Electric Co.

82-648

No. Office - Supreme Court, U.S.

: FFF I)

OCT 12 1962

IN THE

ALEXANDER L. STEVAS

Supreme Court of the a

OctosBer Term, 1982

Net Harticen’ ——

FYRONE-C.-FAHNER, ATTORNEY GENERAL OF IL-

LINOIS, CHARLES P. ZALAR, STATE’S ATTORNEY OF

GRUNDY COUNTY, and PHILIP GUSTAFSON, DIREC-

re ~ 7 THE ILLINOIS DEPARTMENT OF NUCLEAR

Petitioners,

v.

GENERAL ELECTRIC COMPANY and

SOUTHERN CALIFORNIA EDISON COMPANY,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

TYRONE C. FAHNER

Attorney General of Illinois

Cuirrorp L. WEAVER

Special Assistant Attorney General

Representi y ee . Fahner,

Charles P. Zalar, and Philip Gustafson

Ross, Harpies, O’KEEFE, BABCOCK

& PARSONS

One IBM Plaza, Suite 3100

Chicago, Illinois 60611

(312) 467-9300

Attorneys for Petitioners

Piper WENTZ ROTHSCHILD

One IBM Plaza, Suite 3100

Chicago, Illinois 60611

(312) 467-9300

Of Counsel

Pandick Press, Midwest, Inc, Chicago * 454-7600

QUESTIONS PRESENTED

Is the Illinois Spent Fuel Act, Ill. Rev. Stat. ch. 111%,

§$§ 230.21-.24, which was enacted to protect Illinois from

the adverse economic consequences resulting from the

absence of a national policy concerning nuclear waste

disposal, authorized under section 274(k) of the Atomic

Energy Act, 42 U.S. C. § 2021(k), and, if it is not, does the

Atomic Energy Act violate the Tenth Amendment by

interfering impermissibly with the right of Illinois to ex-

ercise control over its treasury?

Is the Illinois Spent Fuel Act, Ill. Rev. Stat. ch. 111%,

§§ 230.21-.24, a valid exercise of state power under the

Commerce Clause to prohibit the importation into Illinois

of spent nuclear fuel, an inherently dangerous material?

TABLE OF CONTENTS

Qussstions Presented ......:..0c..c.sccsccscsscccsccsccsccsscsecccccsecsenseese

5 Lt

Table of Authorities

Opinion Below

TTT ae eae ne Tee OEE eR

Reasons for Granting the Wit..................cccsssseereeeseeeees

STATES ARE UNCERTAIN AS TO THE

SCOPE OF THEIR AUTHORITY OVER HIGH

LEVEL NUCLEAR WASTE, BECAUSE THIS

COURT HAS NOT ADDRESSED THE ExX-

TENT TO WHICH THE ATOMIC ENERGY

ACT PREEMPTS STATE LEGISLATION

CONCERNING SUCH WASTE OR THE UN-

CONSTITUTIONALITY OF THE ATOMIC

ENERGY ACT INSOFAR AS IT IS INTER-

PRETED TO IMPAIR TRADITIONAL STATE

GOVERNMENTAL FUNCTIONS .............-..00000+

A. THE ILLINOIS SPENT FUEL ACT IS

NOT PREEMPTED BY THE ATOMIC

ENERGY ACT, BECAUSE ITS PURPOSE

IS NOT TO REGULATE RADIATION

HAZARDS. THE DECISION OF THE

COURT OF APPEALS IN THIS CASE IS

IN DIRECT CONFLICT WITH THE DE-

CISION OF THE COURT OF APPEALS

FOR THE NINTH CIRCUIT IN THE

PACIFIC GAS & ELECTRIC CO. CASE ....

a

iil

PAGE

B. THE COURT OF APPEALS’ INTER-

PRETATION OF THE ATOMIC ENERGY

ACT INTERFERES UNCONSTITU-

TIONALLY WITH THE RIGHT OF THE

STATE OF ILLINOIS TO CONTROL ITS

TREASURY, AN TRADITIONAL AND

INTEGRAL STATE GOVERNMENT

FUNCTION sccesnesnensesuneensenenars 11

Il. THE ILLINOIS SPENT FUEL ACT IS A VA-

LID EXERCISE OF STATE POWER UNDER

THE QUARANTINE CASES TO PREVENT

SPENT NUCLEAR FUEL, AN ENVIRON-

MENTALLY DANGEROUS ARTICLE, FROM

CROSSING ILLINOIS BORDERG...................000++: 13

iv

TABLE OF AUTHORITIES

Cases

Asbell v. Kansas, 209 U.S. 251 (1908 )........cccceeseeees

Bowman v. Chicago & Northwestern Ry. Co., 125

U. S. 465 (1888)

City of Philadelphia v. New Jersey, 437 U.S. 617

(1978)........ .

Clason v. Indiana, 306 U. S. 439 (1939) ............000-

District of Columbia v. Train, 521 F.2d 971

(D.C. Cir. 1975), vacated sub nom., EPA v.

Brown, 431 U.S. 99 (1977)

FERC v. Mississippi, 102 S. Ct. 2126 ( 1982)...........

Fry v. United States, 421 U.S. 542 (1975)..............

Hannibal & St. Joseph R. R. v. Husen, 95 U.S. 465

Hodel v. Virginia Surface Mining & Reclamation

Association, 452 U.S. 264 (1981) .....cccccceeseeeeees

Illinois v. General Electric Co., 683 F.2d 206 (7th

Bs HONE cidicteantintticiinciensincnganaaantibiiintemennes

Illinois v. Kerr-McGee Chemical Corp., 6/7 F.2d

Ee 6 SE PEED tstnintntenieennrienn

Minnesota v. NRC, 602 F.2d 412 (D.C. Cir.

Northern States Power Co. v. Minnesota, 447 F. 2d

1143 ( 8th Cir. 1971), aff'd mem., 405 U.S. 1035

Pacific Gas & Electric Co. v. State Energy Re-

sources Conservation & Development Commis-

sion, 659 F. 2d 903 ( 9th Cir. 1981). cert. granted

in part, 102 S. Ct. 2956 ( 1982) ........cecccssseeecereeeees

PAGE

12, 13

5,9. 10. 11

Reid v. Colorado, 187 U.S. 137 (1902) .........cseesese

Sligh v. Kirkwood, 237 U.S. 52 (1915S) ....ccccccssssesees

Constitution

UNITED STATES CONSTITUTION, AMEND-

MENT X .

UNITED STATES CONSTITUTION, ARTICLE

I, SECTION 8

Statutes

UNITED STATES CODE, TITLE 28, § 1254(1)

(1976)...

UNITED STATES CODE, TITLE 42, §§ 2011-

Se Ce COED tennitnenetntisncimnn

UNITED STATES CODE, TITLE 42, § 2021(k)

Ce piccrtareciennsnrinnttintitianameisiiagiiabiiinn

ILL. REV. STAT. ch. 111%, §§ 230.21-.24 (1981).

Miscellaneous

S. Rep. No. 870, 86th Cong., Ist Sess., reprinted in

1959 U.S. CODE CONG. & AD. NEWS 2872..

S. 63, 95th Cong., Ist Sess., 123 CONG. REC. 477

H. R. 14323, 95th Cong., 2d Sess., 124 CONG.

Be ern van

S. 594, 96th Cong., Ist Sess., 125 CONG. REC.

Ee el eae cinicrrcerecnitatatstintinserntpincpiiitainaiaianiliitiealatan,

S. 2189, 96th Cong., 2d Sess., cited in 1980 CONG.

a

S. 95, 97th Cong., Ist Sess., 127 CONG. REC.

$ 140-48 ( daily ed. Jan. 15, 1981) oo... ecceseeee

S. 1662, 97th Cong., 2d Sess., 128 CONG. REC.

$2851 ( daily ed. Mar. 25, 1981) ..........:ccccceeseeeees

Supreme Court of the Gnited States

Octoser Term, 1982

TYRONE C. FAHNER, ATTORNEY GENERAL OF IL-

LINOIS, CHARLES P. ZALAR, STATE’S ATTORNEY OF

GRUNDY COUNTY, and PHILIP GUSTAFSON, DIREC-

TOR OF THE ILLINOIS DEPARTMENT OF NUCLEAR

Petitioners,

v.

GENERAL ELECTRIC COMPANY and

SOUTHERN CALIFORNIA EDISON COMPANY,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

OPINION BELOW

The opinion of the Court of Appeals for the Seventh

Circuit was entered on July 13, 1982 and is reported below as

Illinois v. General Electric Company, 683 F.2d 206 (7th

Cir. 1982). The opinion of the District Court for the Northern

District of Illinois is not officially reported.

Jurisdiction

This petition for certiorari is sought under 28 U.S. C.

§ 1254(1). The petition was filed within ninety days after the

entry of judgment in the Court of Appeals on July 13, 1982. in

conformity with Rule 20.2 of this Court.

2

Constitutional and Statutory Provisions Involved

This case involves the following constitutional and statu-

tory provisions, the relevant portions of which are set forth in

the Appendix:

United States Constitution, Amendment X;

United States Constitution, Article I, Section 8 (Com-

merce Clause };

United States Constitution, Article VI (Supremacy

Clause );

Atomic Energy Act of 1954, as amended, 42 U.S. C.

§§ 2011-2296 (Supp. IV 1980);

Spent Fuel Act, Ill. Rev. Stat. ch. 111%, §§ 230.21-.24

(1981).

3

STATEMENT

The issue presented in this case—state regulation of high

level nuclear waste—is not likely to disappear. It will recur

before this Court again and again. The nuclear power industry

has grown rapidly and is now at a point where it constitutes a

major source of energy for the Nation. This growth has

produced a serious and alarming problem—the need to provide

for the safe and secure disposal of spent nuclear fuel.

Irradiated nuclear fuel assemblies, which are the fuel

source of nuclear power plants, eventually lose their ability to

sustain a chain reaction sufficient to generate nuclear power.

“Spent” fuel assemblies must be periodically removed from

nuclear reactors and replaced with fresh fuel. When removed,

spent fuel assemblies generate enormous amounts of heat and

contain highly radioactive materials. Because of its high

radioactivity, spent fuel, unlike ordinary garbage or other forms

of hazardous waste, cannot be readily disposed of by burial in

land or in the ocean, since it would release levels of radiation

sufficient to kill all plant, animal, and oceanic life. Moreover,

the radioactivity of spent fuel is extremely long-lived, and

thousands of years must pass before the fuel can be safely

released into the environment.

At present, there is no permanent method of disposing of

spent fuel.' For the interim, most spent fuel is stored on-site at

nuclear power plants throughout the Nation. The remaining

spent fuel is stored away-from-reactor at a facility (“the Morris

Facility”) operated by Respondent General Electric Company

(“General Electric”) in Morris, Illinois. The Morris Facility is

‘ At one ume, it was hoped that spent fuel would be reprocessed

to recover certain remaining materials, primarily plutonium, that

could be recycled into the generation process. Because plutonium is

the major component of nuclear weapons, the federal government has

imposed a moratorium on reprocessing spent fuel to avoid the dangers

of proliferation of plutonium. See Minnesota v. Nuclear Regulatory

Comm'n, 602 F.2d 412, 414 (D.C. Cir. 1979).

4

the only commercial away-from-reactor spent fuel storage site

in the United States. The Morris Facility was originally

intended to serve as a reprocessing plant—not as a storage or

disposal site for spent fuel. Because of its design and limited

capacity, the Morris Facility is, at best, a vemporary expedient

for, not a permanent solution to, the national problem of spent

fuel disposal.

Recognizing the inadequacies of the Morris Facility and

the need for a national solution to the problem of disposing of

spent fuel, Illinois enacted the Spent Fuel Act. Ill Rev. Stat. ch.

111%, §§ 230.21-.24 (1981). The Spent Fuel Act provides that

spent nuclear fuel generated outside Illinois may not be trans-

ported into or stored in Illinois unless the state of origin has an

away-from-reactur storage site and has entered into a recipro-

Respondents General Electric, operator of the Morris

Facility , and Southern California Edison, operator of a nuclear

generating facility in California planning to ship spent fuel to

the Morris Facility, brought an action in the United States

District Court for the Northern District of Illinois, seeking a

declaration that the Spent Fuel Act was unconstitutional! and an

order restraining its enforcement. On the same day, Petitioner

Tyrone C. Fahner, the Attorney General of Illinois. filed an

action in the Circuit Court of Grundy County, Illinois under the

Spent Fuel Act, other Illinois statutes, and the common law,

seeking to enjoin Southern California Edison from transporting

spent fuel into Illinois and General Electric from storing that

spent fuel in Illinois. Respondents subsequently removed the

state court action to the District Court, where it was consoli-

dated with the federal action. Petitioner Fahner thereafter

moved that the state court action be remanded to the Circuit

Court of Grundy County. The District Court denied this

mouon.

Respondents then moved for summary judgment in both

cases. The District Court granted summary judgment, holding

that the Spent Fuel Act was preempted by the Atomic Energy

5

Act, 42 U.S.C. §§ 2011-2296, and invalid under the Com-

judgments in both actions and also the District Court's refusal

to remand the state court action to state court.

The Court of Appeals for the Seventh Circuit affirmed the

grant of summary judgment in the federal action and reversed

the District Court’s refusal to remand the state court action to

state court.? In affirming the grant of summary judgment, the

Court of Appeals held that the Spent Fuel Act was preempted

by the Atomic Energy Act, 42 U.S.C. §§ 2011-2296, and

violated the Commerce Clause. The decision of the Court of

Appeals not only conflicts with the decision of the Court of

Appeals for the Ninth Circuit in Pacific Gas & Electric Co. v.

State Energy Resources Conservation & Development Commis-

sion, 659 F.2d 903 (9th Cir. 1981), cert. granted in part, 102

S. Ct. 2956 (1982), but also overlooks the Tenth Amendment

right of the states to regulate the nuclear industry in the exercise

of their traditional governmental functions.?

2 Petitioners do not ask this Court to review the Court of Appeals’

decision to remand the state court action to state court, but seek

review only of the decision of the Court of Appeals sustaining the

District Court’s grant of summary judgment on the federal con-

3 Because this Petition draws into question the constituuonality of

the Atomic Energy Act, 28 U.S.C. § 2403(a) may be applicable.

Neither the District Court nor the Court of Appeals has, pursuant to

section 2403(a), certified to the United States Attorney General the

fact that the constitutionality of the Atomic Energy Act is drawn into

question in this case.

6

REASONS FOR GRANTING THE WRIT

I.

STATES ARE UNCERTAIN AS TO THE SCOPE OF

THEIR AUTHORITY OVER HIGH LEVEL NUCLEAR

WASTE, BECAUSE THIS COURT HAS NOT AD-

DRESSED THE EXTENT TO WHICH THE ATOMIC

ENERGY ACT PREEMPTS STATE LEGISLATION

CONCERNING SUCH WASTE OR THE UNCON-

STITUTIONALITY OF THE ATOMIC ENERGY ACT

INSOFAR AS IT IS INTERPRETED TO IMPAIR

TRADITIONAL STATE GOVERNMENTAL FUNC-

TIONS.

The problem of nuclear waste disposal is nationally impor-

tant and must be addressed. The Nation is heavily dependent

upon nuclear power as a source of energy, and, thus, proper

disposal of the waste produced by that source of energy is a

matter that vitally affects all citizens of this Nation. The

problem is not, however, a problem that one state should bear

or solve merely because Congress has not acted to provide a

national solution. No state wants to be nor should be, by

default, a “dumping ground” for the rest of the Nation's

nuclear waste. It is a national problem, requiring a national

solution.

The federal government has not yet found a solution to the

problem of spent fuel disposai. As the Court of Appeals

acknowledged, the Atomic Energy Act (“AEA”) does not

mention spent fuel. Nowhere in the AEA is there a program or

even an approach to deal with nuclear waste disposal.

Although regulations of the Nuclear Regulatory Commission

(“NRC”) address the licensing of facilities for the temporary

storage of high level waste, they contain no program or policy

relating to permanent disposal of such wastes. The reason for

this is that Congress has never been able to agree on such a

policy or program. Despite repeated efforts in the last five years

to enact legislation designed to deai with the problem of the

>

permanent disposal of nuclear waste, Congress has not yet

adopted such legislation.¢

Unless this Court reverses the Court of Appeals’ inter-

pretation of the AEA and the Commerce Clause as they relate

to the permissible scope of state regulation of spent fuel

transportation and storage, Illinois stands to be uniquely prej-

udiced by the lack of a national policy on nuclear waste

disposal. If the Court of Appeals is correct, and Illinois cannot

restrict out-of-state use of the Morris Facility until a permanent

disposal solution is established at the national level, then a

predictable course of events is likely to force Illinois to commit

its resources and funds, in massive amounts and in perpetuity,

to the care and maintenance of the Morris Facility.

If Illinois must allow utility companies throughout the

entire Nation to transport their spent fuel to the Morris Facility

rather than retaining it in at-the-reactor storage facilities until a

permanent disposal facility is available, the capacity of the

Morris Facility will be exhausted in the very near future. When

that occurs, Respondent General Electric, the operator of the

Morris Facility, will no longer have an economic incentive to

maintain and manage the facility and, if history is a reliable

indicator of the future, will likely abandon it.5 Illinois will then

4 See, e.g., S. 63, 95th Cong., Ist Sess.. 123 CONG. REC. 447

(1977); H.R. 14323, 95th Cong., 2d Sess., 124 CONG. REC. 37,170

(1978); S. 594, 96th Cong., Ist Sess., 125 CONG. REC. 4416 ( 1979);

S. 2189, 96th Cong., 2d Sess., cited in 1980 CONG. Q. ALMANAC

494-502; S. 95, 97th Cong., Ist Sess.. 127 CONG. REC. $140-48

(daily ed. Jan. 15, 1981); S. 1662, 97th Cong., 2d Sess., 128 CONG.

REC. $2851 (daily ed. Mar. 25, 1982).

5 Abandonment of nuclear and other hazardous waste disposal

sites by private operators is a common occurrence. A low-level

nuclear waste site in Sheffield, Illinois was abandoned by its private

operator in 1979, and litigation filed to protect the people of Illinois

from the envirenmental and economic consequences is still far from

resolved. New York and Kentucky have experienced similar prob-

lems at the West Valley and Maxey Flats disposal sites. Similar

occurrences involving non-nuclear hazardous wastes have been

recorded across the Nation.

be left with the difficult and expensive task of managing and

maintaining the facility, a task that could very well bankrupt

the State’s treasury. Illinois will be forced to expend state funds

to provide highly skilled around-the-clock technical, mainte-

nance, and security personnel and to maintain a highly complex

facility, containing extremely technical and expensive equip-

ment. The cost of state government would rise dramatically

and threaten the ability of Illinois to meet the needs of its

residents.

To avoid the strain on the state budget and resources that

abandonment would cause, Illinois has imposed reasonable

restraints on the use of the Morris Facility to ensure that the

storage space at that facility will not be exhausted before a

permanent disposal site is available. Only in this way can

Illinois assure that General Electric will have an economic

interest in maintaining the site until a permanent disposal site is

designated, and the spent fue! now stored at the Morris Facility

and at nuclear reactors around the Nation can be transferred to

that site.

The preemption issue in this case is, then, whether the

AEA should be interpreted, as the Court of Appeals implicitly

concluded, as a Congressional decision to foist upon one state,

through national neglect, the entire burden of nuclear waste

disposal or whether the AEA should be interpreted to allow

individual states to take the steps necessary, pending the

adoption of a national policy, to avoid the potentially devas-

tating economic consequences of becoming a national dumping

ground for high level nuclear waste. The decision of the Court

of Appeals, sustaining the former interpretation, is not only

inconsistent with the express language of the AEA, but also

renders the AEA unconstitutional under the Tenth Amendment.

9

A.

The Illinois Spent Fuel Act Is Not Preempted by the Atomic

Energy Act, Because Its Purpose Is Not to Regulate Radi-

ation Hazards. The Decision of the Court of Appeals in

This Case Is in Direct Conflict With the Decision of the

Court of Appeals for the Ninth Circuit in the Pacific Gas &

Electric Co. Case.

Contrary to the opinion of the Court of Appeals for the

Seventh Circuit (App. 16a), Illinois can, and does, “quarrel”

with that Court’s analysis of the preemption issue presented in

this case. The Court of Appeals concluded erroneously that the

AEA’s grant of authority to the NRC to license spent fuel

storage facilities necessarily precludes Illinois from regulating

the storage of spent fuel. In so holding, the Court of Appeals

ignored Section 274(k) of the AEA, which specifically allows

states to regulate nuclear power in some circumstances:

Nothing in this section shall be construed to affect the

authority of any State or local agency to regulate activities

for purposes other than protection against radiation haz-

ards.

42 U.S. C. § 2021(k) (1976).

The intent of Congress in enacting section 274(k) was “to

make it clear that the [AEA] does not impair the State

authority to regulate activities of AEC licensees for the mani-

fold health, safety, and economic purposes other than radiation

protection.” S. Rep. No. 870, 86th Cong., Ist Sess., reprinted in

1959 U.S. Code Cong. & Ad. News 2872, 2882. Indeed,

several courts have so construed section 274(k) and have

upheld state regulation of nuclear activities aimed at state

purposes other than radiation hazards. /Jilinois v. Kerr-McGee

Chemical Corp., 677 F.2d 571 (7th Cir. 1982); Pacific Gas &

Electric Co. v. State Energy Resources Conservation & Devel-

opment Commission, 659 F.2d 903 (9th Cir. 1981), cert.

granted in part, 102 S. Ct. 2956 (1982). See also Northern

States Power Co. v. Minnesota, 447 F.2d 1143, 1150 ( 8th Cir.

10

1971), aff'd mem., 405 U.S. 1035 (1972) (state regulation of

radiation hazards preempted, but section 274(k) held to allow

regulation of matters other than radiation hazards ).

The Court of Appeals ignored the express language of

section 274(k) and the legislative history of the Spent Fuel Act.

That legislative history reveals that the purpose of the Act was

not to regulate radiation hazards, but to respond to Illinois’

concern for its economic well-being in view of the lack of a

federal policy to solve the nuclear waste disposal problem.

Underlying that concern was the legislators’ belief that the

government and taxpayers of Illinois, the situs of the Nation’s

caly commercial away-from-reactor nuclear storage facility,

should not have to bear the present and potential economic

burden of the entire Nation’s nuclear waste, as a result of

national neglect. That this concern is a legitimate State concern

justifying state legislative response is supported by a recent

decision of the Court of Appeals for the Ninth Circuit.

The Ninth Circuit in Pacific Gas & Electric Co. v. State

Energy Resources Conservation & Development Commission,

659 F.2d 903 (9th Cir. 1981), cert. granted in part, 102

S. Ct. 2956 (1982), construed a California statute that imposed

a moratorium on certification of all nuclear plants in California

until the California Energy Commission determined that a

federally-approved method of disposing of nuclear wastes

existed. Upon examining the legisiative history of the Califor-

nia statute, the Ninth Circuit found that the concern of the

California legislators was the lack of a federally-approved

method of disposing of nuclear waste. The legislators deemed

this problem to be “ ‘largely economic or the result of poor

planning, not safety related,’ and did not directly address the

issue of waste disposal safety, but “‘ask{[ed] only that a

method [of waste disposal] be chosen and accepted by the

federal government.’ ” 659 F. 2d at 924-25 ( quoting California

Assembly Committee on Resources, Land Use & Energy,

Reassessment of Nuclear Energy in California \154-55) (empha-

sis in original). The Ninth Circuit held that the California

statute was aimed at purposes other than protection against

radiation hazards and was, thus, not preempted by the AEA,

but was expressly authorized under section 274(k).

Since the Illineis Spent Fuel Act was enacted for the same

purpose as the California statute, under the Ninth Circuit's

interpretation of the AEA, the Spent Fuel Act is not preempted

by the AEA, but is expressly authorized by section 274(k) of

that Act. The Seventh Circuit, however, held that the Spent

Fuel Act is preempted by the AEA. There is, thus, a direct

conflict between the Courts of Appeal on the issue presented in

this case, a conflict that only this Court can resolve. This Court

has granted certiorari in Pacific Gas & Electric Co. v. State

Energy Resources Conservation & Development Commission,

102 S. Ct. 2956 (1982), and should also grant certiorari in this

case.

B.

The Court of Appeals’ Interpretation of the Atomic Energy Act

_ Interferes Unconstitutionally With the Right of the State of

Illinois to Control Its Treasury, a Traditional and Integral

State Governmental Function.

The Court of Appeals’ interpretation of the AEA renders

the AEA unconstitutional under the Tenth Amendment.® The

failure of Congress to enact a nuclear waste disposal policy.

when combined with the Court of Appeals’ interpretation thai

Congress intended the AEA to preempt the Spent Fuel Act,

deprives Illinois of the right to protect its treasury from

reasonably predictable catastrophic obligations. In enacting the

Spent Fuel Act, Illinois sought only to stem the flow of spent

fuel to the Morris Facility so as to reduce the risk of early

abandonment or other problems at that facility that could have

immediate adverse effects on the financial well-being of the

state.

6 This Court need not, of course, reach the issue of the con-

stitutionality of the AEA if it interprets the AEA consistently with the

express language of section 274(k) of the AEA and finds that the

Spent Fuel Act is not preempted.

12

The practical effect of the Court of Appeals’ decision,

coupled with Congress’ failure to pro’ ide a permanent solution

to the high level nuclear waste disposal problem, is that

Congress has determined that high level nuclear waste disposal

is a complex problem with no ready solution and has at the

same time passed a law to prevent Illinois from taking action to

control the dumping of such waste into Illinois for “temporary”

storage in a facility never intended to be a permanent disposal

site. The consequence of Congressional action—the AEA—

and inaction—the the lack of a policy on nuclear waste

disposal—is that the taxpayers and treasury of Illinois are held

at ransom by a national problem. If Congress can force Illinois

to mortgage its future and gamble its treasury on the hope that

a national disposal policy will be established before problems

develop at the Morris Facility and can preclude Illinois from

prohibiting the national dumping of high level waste at the

Morris Facility, then Illinois can no longer control its own

treasury or its own destiny.

The Tenth Amendment was designed to prevent Congress

from so totally eroding the sovereignty of a state. See National

League of Cities v. Usery, 426 U.S. 833, 840-852 (1976);

District of Columbia v. Train, 521 F.2d 971, 994 (D.C. Cir.

1975), vacated sub nom., EPA v. Brown, 431 U.S. 99 (1977).

More specifically, the Tenth Amendment prohibits Congress

from “impair[ing] the States’ integrity or their ability to

function effectively in a federal system.” Fry v. United States,

421 U.S. 542, 547 n. 7 (1975). As this Court said in Hodel v.

Virginia Surface Mining & Reclamation Association, 452 VU. S.

264, 286-87 (1981) (quoting National League of Cities, 426

U.S. at 845:

[W]hen Congress attempts to regulate the States as States

the Tenth Amendment requires recognition that “there are

attributes of sovereignty attaching to every state govern-

ment which may not be impaired by Congress, not because

Congress may lack an affirmative grant of legislative

authority to reach the matter, but because the Constitution

prohibits it from exercising the authority in that manner.”

13

The right of a state to protect its treasury has traditionally

and historically been recognized as one of the essential ele-

ments of the state sovereignty. National League of Cities, 426

U.S. at 845-52. Without this power, a state would lack the

ability to implement decisions, policies, and programs, and its

decisionmaking power—“what gives the State its sovereign

nature”—would be meaningless. FERC v. Mississippi, 102 S.

Ct. 2126, 2138 (1982). Congress cannot, by its failure to enact

nuclear waste disposal legislation and its preemption of the

Spent Fuel Act, displace the power of Illinois to make decisions

affecting its treasury. If it could, there would be “little left of

[Illinois’] ‘separate and independent existence.’” National

League of Cities, 426 U.S. at 851 (quoting Lane County v.

Oregon, 74 U.S. (7 Wall.) 71, 76 (1869). The Tenth

Amendment does not sanction this result, and the Court of

Appeals’ interpretation of the AEA to reach this result renders

the AEA unconstitutional.

Il.

THE SPENT FUEL ACT IS A VALID EXERCISE OF

STATE POWER UNDER THE QUARANTINE CASES

TO PREVENT SPENT NUCLEAR FUEL, AN

ENVIRONMENTALLY DANGEROUS ARTICLE, FROM

CROSSING ILLINOIS BORDERS.

This Court has made it clear that the Commerce Clause

permits a state to establish a quarantine against the importation

of environmentally noxious and unsafe articles. Clason v.

Indiana, 306 U.S. 439 (1939) (diseased animals); Sligh v.

Kirkwood, 237 U.S. 52 (1915) (immature citrus fruit); Asbell

v. Kansas, 209 U.S. 251 (1908) (diseased cattle); Reid v.

Colorado, 187 U.S. 137 (1902) (diseased animals). Justice

Matthews’ opinion in Bowman v. Chicago & Northwestern Ry.

Co., 125 U.S. 465, 489 (1888), sets forth the quarantine

doctrine accurately and completely:

14

Doubtless the States have power to provide by law suitable

measures to prevent the introduction into the States of

articles of trade, which, on account of their existing

condition, would bring in and spread disease, pestilence,

and death, such as rags or other substances infected with

the germs of yellow fever or the virus of small-pox, or

cattle or meat or other provisions that are diseased or

decayed, or otherwise, from their condition and quality,

unfit for human use or consumption. Such articles are not

merchantable; they are not legitimate subjects of trade and

commerce. They may be rightly outlawed as intrinsically

and directly the immediate sources and causes of destruc-

tion to human health and life. The self-protecting power

of each State, therefore, may be rightfully exerted against

their introduction, and such exercises of power cannot be

considered regulatiens of commerce prohibited by the

Constitution.

The right to ban environmentally noxious articles is a “right

founded ... in the sacred law of self-defence.” Hannibal & St.

Joseph R.R. v. Husen, 95 U.S. 465, 471 (1877). Certainly, no

one would contest Illinois’ assertion that nuclear waste presents

a grave hazard to its environment, not only in storage, but also

in transport.

The Court of Appeals concluded erroneously that this case

is governed, not by the quarantine cases, but by Cin of

Philadelphia v. New Jersey, 437 U.S. 617 (1978). In that case,

this Court struck down as violative of the Commerce Clause a

New Jersey statute prohibiting out-of-state residents from using

New Jersey landfill sites to dispose of ordinary garbage. This

Court distinguished the New Jersey statute from the quarantine

cases on the ground that New Jersey could not claim that there

is danger in transporting garbage, because there is none.

Ordinary garbage is not inherently dangerous, and its very

movement does not pose any danger to the environment.

Nothing about ordinary garbage suggests that the risks of

transport are so high as to require storage or disposal to the

point of origin as possible.

15

By contrast, the articles in the quarantine cases were

inherently dangerous, and the very movement of those articles

would have increased the risk of spreading disease, infection,

and pestileuce, principally because of the inability to contain

the disease, germ, or infection in the event of an accidental

release into the environment. For this reason, the quarantine

cases sanctioned laws designed to encourage disposal of such

articles near the point of origin and to discourage their move-

ment in commerce.

Thesc same considerations apply to spent nuclear fuel with

even more force. Spent nuclear fuel is unquestionably inher-

ently dangerous, and the very inovement of such fuel poses a

serious, uncontrollable environmenial hazard. Accident, sabo-

tage, or carelessness could easily result in the leakage of lethal

and environmentally destructive radioactive material. Once

released into the environment, radioactivity cannot be con-

trolled or contained. For these reasons, spent fuel, like the

quarantined articles, should be stored as close to the point of

origin as possible until a national permanent disposal policy is

adopted. The movement of spent fuel away from reactors, and

the transportation, handling, and rehandling that that move-

ment necessitates, should be discouraged until the fuel can be

moved once and for all to a permanent disposal site. Spent fuel

assemblies—even more so than diseased animals and infected

rags—deserve no recognition as “legitimate subjects of trade

and commerce.” Bowman v. Chicago & Northwestern Ry. Co.,

125 U.S. 465, 489 (1888). Spent nuclear fuel, therefore,

resembles the inherently dangerous quarantined articles, not

ordinary garbage. The Court of Appeals’ reliance on this

Court's opinion in City of Philadelphia to reach a contrary

conclusion is misplaced and incorrect.

In enacting the Spent Fuel Act, Illinois was concerned with

the hazards of the transport and handling, as well as those of

the storage, of spent fuel. The Spent Fuel Act does permit

intrastate shipment, but so did the quarantine cases. Spent fuel.

like the noxious articles in the quarantine cases, should be

disposed of as close as possible to the point of generation to

16

avoid as much transportation as possible. Illinois is a major

generator of spent fuel, and it is reasonable to expect Illinois to

use all available Illinois resources to solve the problem of

disposing of spent fuel. The allowance of intrastate shipments

is not evidence of a lack of concern for the hazards of shipment,

but is merely a recognition of the reality of the situation and

evidence of a desire to accommodate, within that reality, the

concern for disposing spent fuel as close as possible to the point

of generation. The laws sustained in the quarantine cases were

no different.

The principle to be drawn from the quarantine cases is that

a state may deal with the problem of its own noxious

environmental hazards as best it can, but need not be, and may

not be forced to be, a dumping ground for the entire Nation.

To deny Illinois the right to close its borders to the environmen-

tal hazards of spent fuel would simply permit other states and

their utility companies to refuse to address the problem of such

hazards by allowing them to follow the cheap and expedient

route of dumping those hazards in Illinois. Such a result is

surely not necessary to foster interstate commerce and could not

have been what the Framers intended to encourage by adopt-

ing the Commerce Clause.

17

CONCLUSION

Petitioners respectfully request that, for the reasons here-

tofore adduced, this Court issue its writ of certiorari to the

United States Court of Appeals for the Seventh Circuit and

reverse the judgment below.

One IBM Plaza, Suite 3100

Chicago, Illinois 60611

(312) 467-9300

Attorneys for Petitioners

Piper WENTZ ROTHSCHILD

One IBM Plaza, Suite 3100

Chicago, Illinois 60611

(312) 467-9300

Of Counsel

2778, filed July 13, 1982........... meta la-8a

Appendix 2 — United States Constitution, Amend-

ment X 19a

' ix 3 — United Su ened Articl

Regen < <eue Cesme Conaten, Asti

Appendix 5 —Section 274 of Atomic Act

ry ar as Amended, 42 U.S.C.

20a-2la

22a

23a-28a

Appendix |

in the

United States Court of Appeals

Zor the Seurnth Cirrntt

No. 81-2768

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-A ppellant,

v.

GENERAL ELECTRIC COMPANY and

SOUTHERN CALIFORNIA EDISON COMPANY,

Defendants-A ppellees.

No. 81-2778

GENERAL ELECTRIC COMPANY and

SOUTHERN CALIFORNIA EDISON COMPANY,

Plaintiffs-A ppellees,

Vv.

TYRONE C. FAHNER, Attorney General of [llinois.

CHARLES ZALAR, State’s Attorney of Grundy County,

and PHILIP GUSTAFSON, Director of the Department of

Nuclear Safety,

Defendants-A ppellants.

ARGUED May 25, 1982—Decipep Juty 13. 1982

2a

Nos. 81-2768 & 81-2778

Before Woop and POSNER, Circuit Judges, and FORE-

MAN, Chief Judge.*

POSNER, Circuit Judge. These consolidated appeals

present questions of jurisdiction and constitu-

tional law wry by of an attempt by the State of IIli-

nois to prevent shipment of spent nuclear fuel into

the state for storage.

The fuel for nuclear electric-power reactors—enriched

uranium—becomes depleted after a few years in the

reactor and has to be replaced. Because the spent fuel is

highly radioactive and its radioactivity very long-lived,

the question what to do with it is a troublesome one.

The spent fuel cannot just be thrown away, because

wherever it is thrown will be contaminated. It used to

be thought that the spent fuel would be reprocessed to

make new fuel; but reprocessing of nuclear fuel has

become intensely controversial and its prospects cur-

amp hy. uncertain. At the moment, then. spent nuclear

fuel to be stored indefinitely. But there is as yet no

acceptable method of permanent. safe storage: and mean-

while tne spent fuel is being storea for the most part in

“swimming pools” at “ reactor sites. yoy ty -

reactors may run out of on-site storage space e

middle of this decade.

The only away-from-site facility in the United States

that is accepting spent nuclear fuel for storage is Gen-

eral Electric’s facility at Morris, Illinois, sixty miles

southwest of Chi Spent fuel from reactors both

within and outside Illinois is stored at the Morris facil-

ity. But in December 1980 Illinois enacted the Spent

Fuel Act, Ill. Rev. Stat. ch. 111%, § 230, which provides

that “no may dispose of, store, or accept any

spent nuciear fuel which was used in any power gener-

ating facility located outside this State, or transport into

this State for disposal or storage any spent nuclear fuel

which was used in any power generating facility located

outside this State... .” § .22. The Act makes an

exception for imports of spent nuclear fuel from states

* Of the Southern District of Illinois.

3a

Nos. 81-2768 & 81-2778

that have a storage facility like Illinois’ and have entered

into a reciprocity agreement with Illinois, but it is a

meaningless ay aye because, as mentioned, there is

no other facility in the United States that is accepting

t_ nuclear for storage away from the reactor

te. The Act imposes a civ: penalty of $10,000 per

violation—$1,000 per for a continuing violation—and

also authorizes state officials to bring suits to enjoin vio-

lations. §§ 230.23, 230.24.

Three weeks after the passage of the Act, General

Electric, joined by an out-of-state utility, Southern Cali-

fornia Edi which had shipped spent nuciear fuel to

the Morris facility in the past and had a contract to ship

additional amounts beginning early in 1981, t

suit in federal district court under 28 U.S.C. § l

(Declaratory Judgment Act) and 28 U.S.C. § 1331 (fed-

eral-question jurisdiction) against the state officials re-

sponsible for enforcing the Spent Fuel Act. The suit

t a declaration that the Act violates the supremacy

commerce clauses of the U.S. Constitution. Just a

few hours after this suit (No. 81-2778 on our docket) was

filed, the Attorney General of [llinois brought a suit

No. 81-2768) in state court under the Illinois Spent

uel Act and other Illinois statutes and the common law

to enjoin Southern California Edison from shipping

spent nuclear fuel into [Illinois and General Electric

from receiving it. The defendants removed the state's

suit to federal court, where it was consolidated with the

federal suit, and moved for summary judgment in both

suits. The motion was granted. The state appealed,

challenging the final judgment in both cases and also

the district court’s refusal to remand No. 81-2768 to the

state court.

The district court erred in not remanding No. 81-

2768. The removal of a state court action to federal

court is authorized only if the cause of action arises

under federal law, see U.S.C. § 1441, and the cause

of action in No. 81-2768 did not; it arose under [Illinois

law. The fact that Illinois law may be unconstitutional

as applied to the defendants’ activities is a matter of

defense, not a ground for removal, even if the defend-

Nos. 81-2768 & 81-2778

ants show that the state laws sued on by the plaintiff

are totally preempted by federal law. Illinois v. Kerr-

McGee Chem. Corp., No. 81-1110 (7th Cir. May 4, 1982).

The state argues that there also is no federal jurisdic-

tion over No. 81-2778. It says, first, that the companies

failed to allege an actual controversy within the mean-

ing of Article III of the Constitution and the Declara-

to cengenens Act. See Skelly Oil Co. v. Phillips Pe-

— A. o., 389 U.S. 667, 671-74 (1960). When the

companies’ suit was filed the state had not brought its

suit, and it argues that until that happened no one could

be certain that the Spent Fuel Act would actually affect

the Morris facility.

It might appear to be a matter of indifference, or at

most a technical defect readily curable by amending the

complaint, whether there was an actual controversy

when the federal suit was filed or not urtil a few hours

later, when the state suit was filed. But it could make a

difference, even a practical one. If there was no federal

jurisdiction until the state suit was filed, the state’s

argument, discussed later in this opinion, that even if

the federal court had jurisdiction it should have ab-

stained from exercising it might be strengthened. More

important, the mere fact that the state sought injunctive

relief against a threatened violation of the Act the

companies would not necessarily establish an ac con-

troversy in the Article [II sense; not being bound by

Article [III a state might allow a suit to be maintained

in its courts though there was no actual controversy in

that sense. Finally, technicality though it may be, there

is considerable doubt, to say the least, whether a federal

court can acquire jurisdiction retroactively. Mansfield,

Coldwater & Lake Michigan Ry. v. Swan, 111 U.S. 379,

381-82 (1884), holds that it cannot. If there was no juris-

diction when the complaint was filed the federal court

had no power to act—even, perhaps, to the extent of

allowing the complaint to be amended when a basis for

federal jurisdiction came into being.

But we need not pursue these byways further in this

case, because there was, we think, federal jurisdiction at

the moment the federal complaint was filed, even though

the filing of the state complaint came later. To consti-

Sa

Nos. 81-2768 & 81-2778

tute an actual controversy “the disagreement must not

be nebulous or contingent but must have taken on fixed

and final shape so that a court can see what legal issues

it is deciding, what effects its decision will have on the

adversaries, and some useful to be achieved in

deciding them.” Public Serv. Comm'n v. Wycoff Co., 344

U.S. , 244 (1962). The disagreement between the

state and the companies was not “nebulous or contingent”

when the federal complaint was filed. The complaint

alleged that Southern California Edison was about to

ship spent nuclear fuel from California to the Morris

facility. That shipment, and General Electric’s receipt of

it, would have been in patent violation of the statute and

would have made the companies liable to pay heavy

civil ties. Of course the companies could have gene

ah and violated the law and then have set up its

alleged unconstitutionality as a defense in ef civil

penalty or other- enforcement action brought by the

state—in No. 81-2768, for example. But that is true with

any statute alleged to be unconstitutional: you can violate

it and then defend your conduct in state court on consti-

tutional grounds. If it followed that there was no actual

controversy until a violation occurred, the federal courts

would never have jurisdiction to enjoin the threatened

enforcement of state legislation all to violate the

Constitution (except possibly at the behest of someone

who had violated the statute but not yet been prosecuted

for the violation )—a proposition that cannot be maintained

in the face of Ex parte Young, 209 U.S. 123 (1908), and

innumerable cases following it. See, e.g., Lake Carriers

Ass'n v. McMullan, 406 U.S. 498, (1972); Steffel v.

Thompson, 415 U.S. 452, 459 (1974); Supreme Court of

cben Consumers Union of the U.S., 446 U.S. 719, 737

It is true that where as in this case enforcement is

merely threatened, a dispute may in fact lack sufficient

concreteness and inevitability to be deemed an actual

and not merely hypothetical controversy: it may be

“unripe.” In limiting the jurisdiction of the federal

courts to “cases or controversies” Article III has been

understood to express a policy, one that makes espe-

cially good sense in regard to constitutional adjudica-

tion, against rendering judgments that are either un-

6a

Nos. 81-2768 & 81-2778

necessary to resolve a real dispute or unlikely to be

made in a com t fashion. en a suit is brought

against a state before the state has actually done any-

thing to the plaintiff, not only may the suit not be nec-

essary to protect the plaintiff's interests—because the

state may never in fact do anything to him—but the

lack of an immediate conflict may deprive the court of

the facts it needs to make an informed decision; it may

also—a related point—reduce the parties’ incentives to

make a real contest of the case. See, e.g., Regional Rail

Reorganization Cases, 419 U.S. 102, 143-45 (1974). So if

it were uncertain whether the Spent Fuel Act really

was applicable to the Morris facility, or to Southern

California Edison’s shipment of spent nuclear fuel to the

facility, or whether thern California Edison was

reaily planning to ship spent nuclear fuel to Morris in

the near future, or whether the state would actually

enforce the statute, we might weli conclude that there

was no actual controversy between the state and the

companies when they brought the suit.

The case would then be like Wycoff, supra, see 344

U.S. at 244, or our circuit’s recent decision in Nuclear

Engineering Co. v. Scott, 660 F.2d 241, 252-53 (7th Cir.

1981). The Attorney General of Illinois had announced

at a press conference that he intended to bring lawsuits

against violators of Illinois’ environmental protection

laws, and one of those violators, he said, was Nuclear

Engineering Company, which operated a facility for

storing hazardous wastes. A few days after the press

conference the company sued the state in federal court,

alleging that the Illinois laws in question could not con-

stitutionally be applied to its facility. This court held

that the threat of enforcement did met create an actual

controversy between the state and the cuxpany. Nuclear

Engineering was not challenging the validity of the

state laws that the Attorney General was seeking to

enforce — it. On the contrary, it claimed to be in

full compliance with them, and if so it had nothing to

fear from the carrying out of the Attorney General’s

threat—it was not a present or prospective violator. If

the threat itself had had an adverse impact on Nuclear

Engineering’s business this might have created an actual

7a

Nos. 81-2768 & 81-2778

controversy between it and the state, but the court’s

“careful examination of the record . . . reveal[ed] not a

shred of evidence in support of NEC’s allegation of

immediate business injury.” Jd. at 252. The company

was asking the federal court for an advisory opinion

that if the Illinois laws were construed—incorrectly in

the company’s view—in such a way as to force it to close

its hazardous waste facility, the state would be violating

the Constitution.

The present case is different. Not only is it certain

that General Electric and Southern California Edison

would be violating the Spent Fuel Act if Southern Cali-

fornia Edison ship spent nuclear fuel to Morris, as it

intended (but for state law) to do; but as the Act has

only one conceivable target—the Morris facility—it is

extremely unlikely that the state would overlook the vio-

lation. Adverse legal action was a distinct possibility

when Nvclear Engineering filed its suit but it was a

virtual certainty when General Electric and Southern

California Edison filed theirs. While the difference is

one of d rather than of kind, it is enough we think

to show the controversy between the state and the

companies in this case has real and immediate and not

merely hypothetical or remote consequences for them.

The state makes the related jurisdictional argument

that the companies’ cause of action did not arise under

federal law, as required for federal jurisdiction under

28 U.S.C. § 1331, the statutory basis of federal jurisdic-

tion in this case. (The complaint also alleges diversity of

citizenship, treating the named defendant, the Attorney

General of Illinois, as a citizen of Illinois within the

meaning of 28 U.S.C. § 1332; but the companies reserve

rather than argue this basis for federal jurisdiction on

this appeal, in view of its rejection in Nuclear Engineer-

ing, supra, 660 F.2d at 250-51.)

_ In Nuclear Engineering, after the company yoy

its suit the Attorney General of Illinois carried out his

threat and sued the company. That created, in this

court’s view, an actual controversy and the court pro-

ceeded to consider whether there was a statutory basis

for federal jurisdiction over it. Purists might consider

Nos. 81-2768 & 81-2778

this part of Nuclear Engineering an advisory opinion

(the court having held it had no jurisdiction), but how-

ever that may be its teaching is inapplicable to the pres-

ent case. Since the only thing that created an actual

controversy in Nuclear Engineering was the filing of the

state’s lawsuit, it seemed to this court that any federal

suit which Nuclear Engineering might subsequently

have filed would just have been an attempt to raise in

federal court its federal defenses to the state court

action. See 660 F.2d at 253-54. The company could not

argue that its rights were being infringed by a state

law that was inconsistent with one or more provisions of

the Constitution, because it did not contend the state

law was invalid, and in any event it claimed to be com-

plying with that law. All it could plead in its federal

complaint was that if the state court accepted the Attor-

ney General’s proposed construction of state law, that

law would violate its constitutional rights. The condi-

tional assertion of a federal right is in reality the asser-

tion of a federal defense. If this could be the basis of a

federal suit, the rule mentioned earlier that forbids the

removal of a state suit to federal court on the basis of a

federal defense to that suit would be circumvented. But

in the present case the companies are claiming an

unconditional right under the Constitution to ship spent

nuclear fuel into, and to receive it in, Illinois for storage

notwithstanding the Spent Fue! Act. They can vindicate

that right in a suit under section 1331. The commerce

and supremacy clauses of the Constitution create rights

enforceable in equity proceedings in federal court. ;

e.g., Lake Carriers’ Ass'n, supra, 406 U.S. at 502-03;

Jones v. Rath Packing Co., 430 U.S. 519 (1977).

‘here is, it is true, a dictum in the Wycoff case, supra,

which if it is the law could J oy the plaintiffs in this case

right out of court: “Where the complaint in an action for

declaratory judgment seeks in essence to assert a de-

fense to an impending or threatened state court action,

it is the character of threatened action, and not of the

defense, which will determine whether there is federal-

question jurisdiction in the District Court.” 344 U.S. at

248. The impending state court action here was based

on an all violation of state rather than federal law.

Now at one level the dictum is an innocuous if perhaps

9a

Nos. 81-2768 & 81-2778

overbroad statement of the principle that you cannot get

around the limitations on the removal jurisdiction of the

federal courts by asserting your defenses in a federal

declaratory judgment action. But at another level, if

endaseined to require federal claimants always to lit-

igate their claims as defenses in state court if they can,

it must be wrong, and though lower federal courts have

followed it from time to time the Supreme Court has

not. For a peyeegeve discussion see Note, Federal Juris-

diction over Deciaratory Suits Challenging State Action,

79 Colum. L. Rev. 983 (1979). Since the impending state

action will almost always be based on state law alone,

the dictum, read broadly, would overrule Ez parte

Young and every case that has ever followed it. If not

wrong, such a reading would still be an inappropriate

flight of fancy for an inferior federal court to take.

Still, the companies here could, and did, raise their

constitutional claims in defense of the state court action

brought by the Attorney General; and the state =,

as an alternative ground for dismissal of the federal

suit, that the district court, even if it had jurisdiction,

should have abstained from exercising it and forced the

companies to litigate exclusively in the state courts.

There must be something wrong with this argument.

because if it were accepted it would prevent people from

ever challenging the constitutionality of state legislation

in federal court. Every time someone brought a suit to

hav a state law declared unconstitutional the state

would immediately file an action in state court to enjoin

violation of the statute and then move the federal dis-

trict court to stay or dismiss the federal suit, thereby

forcing the federal plaintiff to litigate his federal claims

by way of defense in the state court action. If to avoid

being forced into state court in this way the federal

claimant violated the statute and then brought a federal

suit to enjoin its enforcement, his suit would almost cer-

tainly be dismissed under the doctrine of Younger v.

Harris, 401 U.S. 37 (1971)—that federal courts ordinari-

ly will not interfere in pending state prosecutions—

provided only that the state brought some sort of en-

forcement proceeding before the federal suit was w«!]

advanced, see Hicks v. Miranda, 422 U.S. 322, 349

10a

Nos. 81-2768 & 81-2778

(1975). For the term “prosecution” has been broadened

to include civil enforcement actions, clearly including

= type of civil penalty suit that the state could have

ht under the Spent Fuel Act if General Electric

thern California Edison had gone ahead and

~~ A. the Act. See, e.g., Trainor v. Hernandez, 431

U.S. 484, 443-44 (1977); Middlesex Cty. Ethics Comm. v.

ge Bar Ass'n, 50 U.S.L. Wk. 4712 (S. Ct. June

The state is unable to cite any precedent for the con-

traction of federal jurisdiction that it is advocating.

Hicks v. Miranda, supra, on which the state relies heavi-

ly, holds only “that where state criminal proceedings are

begun against the federal plaintiffs after the federal

complaint is filed but before any proceedings of sub-

stance on the merits have taken place in the federal

court, the principles of [Younger] should apply in full

force.” The plaintiffs in Hicks had already violated the

Statute; that was what exposed them to state criminal

prosecution. Younger holds that the state’s interest in en-

forcing its laws without interference from a federal

court takes precedence over the federal claimant’s in-

terest in litigating his claim in a federal forum. But the

federal plaintiffs in the present case did not violate state

law, so the state could not have brought a penalty action

against them. The state’s interest in maintaining law

and order through enforcement of its penal statutes was

not impaired by the federal lawsuit and the principle of

the Younger case is therefore inapplicable. It is not the

order of the suits that is important to the Younger doc-

trine but whether a state statute has been violated and

the violator is being sued in state court.

The state also cites Louisville Area Inter-Faith Comm.

for United Farm Workers v. Nottingham Liquors, Lid..

542 F.2d 652 (6th Cir. 1976). The” defendant had ob-

tained a temporary restraining order in state court

against picketing by the plaintiff union. Rather than ask

the state court to dissolve the order the union brought a

federal suit to enjoin its enforcement as a violation of the

union’s First Amendment rights. The federal district

Nos, 81-2768 & 81-2778

general rule will not exercise jurisdiction in a case

where the plaintiff could raise his federal claim in a

pending state court proceeding. The state judge who had

issued the temporary restraining order was the logical

person to consider, in the first instance at least, the un-

ion’s claim that the order should be dissolved; judicial

economy therefore required that the federal court stay

hand until the union applied to the state judge to dis-

solve his order. There is nothing like that in the present

case. No state suit had even been filed when the federal

suit was filed, let alone had proceeded to the point

ercise of federal jurisdiction would have in-

active state court litigation.

In essence the state is asking us to adopt a rule of

not su such a rule, and it would be hard to square

with U.S.C. § 1331(a), which explicitly grants the

federal courts jurisdiction over civil suits arising under

the Constitution. In every case that the state has cited

the federal claimant had gone ahead and violated state

law, thereby bringiug into play the state’s interest in

redressing violations of its laws in its own courts. The

of Younger and of the recent cases that have ex-

saniee te principle to civil proceedings is that one who

decides to violate a state law that he believes to be un-

constitutional mz, find that he has thereby submitted

himself to the jurisdiction of the state courts. Only if he

in this opinion, for bringing a federal suit to enjoin

merely tened state enforcement action. [f the

State’s position were correct. virtually no federal suit

could ever be brought to challenge the constitutionality

Nos. 81-2768 & 81-2778

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principle of Younger is of course oniy one part of

the abstention doctrine. Nottingham illustrates another.

When the constitutionality of a state statute depends on

how the statute is construed, there is a third ground for

in the present case, as in Zwickiler v.

. 241, 249 (1967), the statute is unam-

We come at long last to the merits. General Electric

and Southern ifornia Edison challenge the constitu-

ionali uel Act on two grounds. The

first is that it violates the commerce clause because

i i interstate commerce. There is

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facility stores spent nuclear fuel from nuciear reactors

located in Illinois as weil as from outwf-state utilities

inois. However compelling the state's interest in

safeguarding its residents from the hazards of radio-

activity, that interest is unaffected by the origin of the

radioactive material. Even if it is the movement rather

than the of the spent nuclear fuel that is the

source of the about which the state is con-

cerned, all spent nuclear fuel stored in the Morris

facility was brought there from somewhere else yet

the statute does not limit or forbid any intrastate move-

ments, however lengthy or hazardous, nor even inter-

state movements so long as they do not end up at the

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Nos. 81-2768 & 81-2778

Commission. The Act does refer explicitly to spent

nuclear fuel, but it does refer to the constituents of

that fuel, see U.S.C. ,

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the Morris facility, away from the reactor site—for

spent nuclear fuel. See 10 C.F.R. Part 72 (1981). These

—— — — ~~ receipt, or _—

of spent nuc r storage except under license

hig He AHA AY 4 ft

licensing is unquestioned. The Morris facility was

licensed under an earlier set of regulations, 10 C.F.R.

Part 70 (1980), and its license is up for renewal under

the new regulations (Part 72, supra), see 45 Fed. Reg.

74698-99 (1980), but the validity of its license is not

challenged.

The regulations, however, say nothing about shipment

across state lines; and, curiously, there is no copy of the

license for the Morris facility in the record, so that we

do not know whether it expressly authorizes the receipt

of spent nuclear fuel from other states. Although no one

suggests that General Electric may be violating the

license by receiving interstate shipments of spent

nuclear fuel for storage at the Morris facility, it ap-

pears that neither the Act, the regulations under the

Act, nor the license itself expressly authorizes such

receipt—though there are some very broad hints in

the regulations that it is authorized. See 10 C.F.R.

16a

Nos. 81-2768 & 81-2778

i 70.42(b\X5), 71.5. But this hardly matters. Northern

tates Power Co. v. Minnesota, 447 F.2d 1143 (8th Cir.

1971), aff'd 405 U.S. 1035 (1972), holds

fi

charge effluents from nuclear power

plants in the and pre-empting the States from

FAT y OT discharges.” Train v. Colorado Public

427 US. 1, 16 (1976). The

aah ok J. AR. istory of the

Act in Northern States compels the conclusion that the

Act preempts state regulation of the storage,

with anythin yt. 4, 5-p. tf Af

preemption. Its argument is

oy and later amending section 116 of the Clear AL

- ph U.S.C. § 7416, has authorized the state to nullify

the Commission's exercise of authority, presumably even

a2 Sp capens 8 Gees Sve Oo ae facility com-

pletely. Section 16 provides that “nothing in this ae

shall preclude or deny the right of any State .

adopt or enforce .. . any requirement respecting asia

or abatement of air pollution.” And “air pollution” is

defined in the Clean Air Act Amendments of 1977

(amending section 302{g) of the Clean Air Act, 42 U.S.C.

§ 7602(g)) as including any “radioactive (including source

material, special nuclear material, and byproduct ma-

terial) substance or matter which is emitted into or

ee rae Se ee ee. Since source materi-

al, special nuclear material, and byproduct material

are the principal constituents of spent nuclear fuel.

section CG read in li xa oe ones eneee Se

appears to aa Se ay late air pollution

caused by facilities such as that at Morris. But it does

not, we believe, authorize the Spent Fuel. Act.

Section 16 of the Clean Air Act qualifies federal

powers only under that act. It does not purport to limit

Sey?

Hi

geet erot

speagests

A 7 8ts

= ra Rae

rl

res tay’

eepeess z

4 “a

goEs estat

radioactive

shipments to the facility. And while one effect of the

may be to reduce those emissions by eliminatin

5

pecially when, for t that appears, the facility emits

no radioactivity into air. We cannot believe that Con-

a side-effect reduce the amount of radioactive emissions

in the state, regardless of how much the statute or regu-

lation disrupted the federal atomic energy program,

which includes as we have noted a program for dis-

posing of nuclear wastes. That would be too much to

read into those amendments.

1-2778 i

court where it began. The judgment in No.

Nos. 81-2768 & 81-2778

affirmed. The parties shall bear their own costs in this

So ORDERED.

USCA 5730—Midwest Law Printing Co., Inc.. Chicago—7-13-82—400

19a

Appendix 2

United States Constitution, Amendment X

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved io

the States respectively, or to the people.

20a

Appendix 3

United States Constitution

Article I, Section 8

SECTION 8. The Congress shall have Power To lay and

collect Taxes, Duties, Imposts and Excises, to pay the Debts

and provide for the common Defence and general Welfare of

the United States; but all Duties, Imposts and Excises shall be

uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among

the several States, and with the Indian Tribes;

To establish a uniform Rule of Naturalization, and uni-

form Laws on the subject of Bankruptcies throughout the

United States;

To coin Money, regulate the Value thereof, and of foreign

Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Secu-

rities and current Coin of the United States;

To establish Post Offices and post Roads:

To promote the Progress of Science and useful Arts. by

securing for limited Times to Authors and Inventors the

exclusive Right to their respective Writings and Discoveries:

To constitute Tribunals inferior to the supreme Court:

To define and punish Piracies and Felonies committed on

the high Seas, and Offences against the Law of Nations:

To declare War, grant Letters of Marque and Reprisal.

and make Rules concerning Captures on Land and Water:

To raise and support Armies. but no Appropriation of

Money to that Use shall be for a longer Term than two Years:

To provide and maintain a Navy:

2la

To make Rules for the Government and Regulation of the

land and naval Forces;

To provide for calling forth the Militia to execute the Laws

of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the

Militia, and for governing such Part of them as may be

employed in the Service of the United States, reserving to the

States respectively, the Appointment of the Officers, and the

Authority of training the Militia according to the discipline

prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever,

over such District ( not exceeding ten Miles square) as may, by

Cession of particular States, and the Acceptance of Congress,

become the Seat of the Government of the United States, and

to exercise like Authority over all Places purchased by the

Consent of the Legislature of the State in which the Same shall

be, for the Erection of Forts, Magazines, Arsenals, dock-Yards,

and other needful Buildings; — And

To make all Laws which shall be necessary and proper for

carrying into Execution the foregoing Powers, and all other

Powers vested by this Constitution in the Government of the

United States, or in any Department or Officer thereof.

22a

Appendix 4

United States Constitution

Article VI

All Debts contracted and Engagements entered into, be-

fore the Adoption of this Constitution, shall be as valid against

the United States under this Constitution, as under the Con-

federation.

This Constitution, and the laws of the United States which

shall be made in Pursuance thereof; and all Treaties made, or

which shall be made, under the Authority of the United States,

shall be the supreme Law of the Land; and the Judges in every

State shall be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and

the Members of the several State Legislatures, and all executive

and judicia! Officers, both of the United States and of the

several States, shall be bound by Oath or Affirmation, to

support this Constitution; but no religious Test shall ever be

required as a Qualification to any Office or public Trust under

the United States.

23a

Appendix 5

Section 274 of Atomic Energy

Act of 1954, as Amended

§ 2021. Cooperation with States

(a) Purpose

It is the purpose of this section—

(1) to recognize the interests of the States in the

peaceful uses of atomic energy, and to clarify the respective

responsibilities under this chapter of the States and the

Commission with respect to the regulation of byproduct,

source, and special nuclear materials;

(2) to recognize the need, and establish programs for,

cooperation between the States and the Commission with

respect to control of radiation hazards associated with use

of such materials; :

(3) to promote an orderly regulatory pattern between

the Commission and State governments with respect to

nuclear development and use and regulation of byproduct,

source, and special nuclear materials;

(4) to establish procedures and criteria for dis-

continuance of certain of the Commission’s regulatory

responsibilities with respect to byproduct, source, and

special nuclear materials, and the assumption thereof by

the States.

(5) to provide for coordination of the development of

radiation standards for the guidance of Federal agencies

and cooperation with the States; and

(6) to recognize that, as the States improve their

capabilities to regulate effectively such materials, addition-

al legislation may be desirable.

24a

(b) Agreements with States

Except as provided in subsection (c) of this section, the

Commission is authorized to enter into agreements with the

Governor of any State providing for discontinuance of the

regulatory authority of the Commission under subchapters V,

VI, and VII of this chapter, and section 2201 of this title, with

respect to any one or more of the following materials within the

State—

(1) byproduct materials;

(2) source materials;

(3) special nuclear materials in quantities not

sufficient to form a critical mass.

During the duration of such an agreement it is recognized that

the State shall have authority to regulate the materials covered

by the agreement for the protection of the public health and

safety from radiation hazards.

(c) Commission regulation of certain activities

No agreement entered into pursuant to subsection (b) of

this section shall provide for discontinuance of any authority

and the Commission shall retain authority and responsibility

with respect to regulation of —

(1) the construction and operation of any production

or utilization facility;

(2) the export from or import into the United States

of byproduct, source, or special nuclear material, or of any

production or utilization facility;

(3) the tisposal into the ocean or sea of byproduct,

source, or special nuclear waste materials as defined in

regulations or orders of the Commission:

25a

(4) the disposal of such other byproduct, source, or

special nuclear material as the Commission determines by

regulation or order should, because of the hazards or

potential hazards thereof, not be so disposed of without a

Notwithstanding any agreement between the Commission and

any State pursuant to subsection (b) of this section, the

Commission is authorized by rule, regulation, or order to

require that the manufacturer, processor, or producer of any

equipment, device, commodity, or other product containing

source, byproduct, or special nuclear material shall not transfer

possession or control of such product except pursuant to a

license issued by the Commission.

(d) Conditions

The Commission shall enter into an agreement under

subsection (b) of this section with any State if—

(1) The Governor of that State certifies that the State

has a program for the control of radiation hazards ade-

quate to protect the public health and safety with respect to

the materials within the State covered by the proposed

agreement, and that the State desires to assume regulatory

responsibility for such materials; and

(2) the Commission finds that the State program is

compatible with the Commission’s program for the regu-

lation of such materials, and that the State program is

adequate to protect the public health and safety with

respect to the materials covered by the proposed agree-

ment.

(e) Publication in Federal Register; comment of interested

persons

(1) Before any agreement under subsection (b) of this

section is signed by the Commission, the terms of the proposed

agreement and of proposed exemptions pursuant to subsection

26a

(f) of this section shall be published once each week for four

consecutive weeks in the Federal Register; and such opportu-

nity for comment by interested persons on the proposed

agreement and exemptions shall be allowed as the Commission

determines by regulation or order to be appropriate.

(2) Each proposed agreement shall include the proposed

effective date of such proposed agreement or exemptions. The

agreement and exemptions shall be published in the Federal

Register within thirty days after signature by the Commission

and the Governor.

(f) Exemptions

The Commission is authorized and directed, by regulation

or order, to grant such exemptions from the licensing require-

ments contained in subchapters V, VI, and VII of this chapter,

and from its regulations applicable to licensees as the Commis-

sion finds necessary or appropriate to carry out any agreement

entered into pursuant to subsection (b) of this section.

(g) Compatible radiation standards

The Commission is authorized and directed to cooperate

with the States in the formulation of standards for protection

against hazards of radiation to assure that State and Commis-

sion programs for protection against hazards of radiation will

be coordinated and compatible.

(h) Consultative, advisory and miscellaneous functions of

Administrator of the Environmental Protection Agency

The Administrator of the Environmental Protection

Agency shall consult qualified scientists and experts in radiation

matters, including the President of the National Academy of

Sciences, the Chairman of the National Committee on Radi-

ation Protection and Measurement, and qualified experts in the

field of biology and medicine and in the field of health physics.

The Special Assistant to the President for Science and Tech-

nology, or his designee, is authorized to attend meetings with,

27a

participate in the deliberations of, and to advise the Adminis-

respect to radiation matters, directly or indirectly affecting

health, including guidance for all Federal agencies in the

formulation of radiation standards and in the establishment

and execution of programs of cooperation with States. The

Administrator shall also perform such other functions as the

President may assign to him by Executive order.

(i) Inspections and other functions; training and other assis-

tance

The Commission in carrying out its licensing and regu-

latory responsibilities under this chapter is authorized to enter

into agreements with any State, or group of States, to perform

inspections or other functions on a cooperative basis as the >

Commission deems appropriate. The Commission is also

authorized to provide training, with or without charge, to

employees of, and such other assistance to, any State or political

subdivision thereof or group of States as the Commisrion deems

appropriate. Any such provision or assistance by the Commis-

sion shali take into account the additional expenses that may be

incurred by a State as a consequence of the State’s entering into

an agreement with the Commission pursuant to subsection (b)

of this section.

(j) Reserve power to terminate or suspend agreements

The Commission, upon its own initiative after reasonable

notice and opportunity for hearing to the State with which an

agreement under subsection (b) of this section has become

effective, or upon request of the Governor of such State, may

terminate or suspend its agreement with the State and reassert

the licensing and regulatory authority vested in it under this

chapter, if the Commission finds that such termination or

suspension is required to protect the public health and safety.

(k) State regulation of activities for certain purposes

Nothing in this section shall be construed to affect the

authority of any State or local agency to regulate activities for

purposes other than protection against radiation hazards.

28a

(1) Commission regulated activities; notice of filing; hearing

With respect to each application for Commission license

authorizing an activity as to which the Commission’s authority

is continued pursuant to subsection (c) of this section, the

Commission shall give prompt notice to the State or States in

which the activity will be conducted of the filing of the license

application; and shall afford reasonable opportunity for State

representatives to offer evidence, interrogate witnesses, and

advise the Commission as to the application without requiring

such representatives to take a position for or against the

granting of the application.

(m) Limitation of agreements and exemptions

No agreement entered into under subsection (b) of this

section, and no exemption granted pursuant to subsection ( f) of

this section, shall affect the authority of the Commission under

section 2201(b) or (i) of this title to issue rules, regulations, or

orders to protect the common defense and security, to protect

restricted data or to guard against the loss or diversion of

special nuclear material. For purposes of section 2201(i) of

this title, activities covered by exemptions granted pursuant to

subsection (f) of this section shall be deemed to constitute

activities authorized pursuant to this chapter; and special

nuclear material acquired by any person pursuant to such an

exempt.on shall be deemed to have been acquired pursuant to

section 2073 of this title.

(n) Definition

As used in this section, the term State means any State,

Territory, or possession of the United States, the Canal Zone,

Puerto Rico, and the District of Columbia.

29a

Appendix 6

Spent Fuel Act

SPENT NUCLEAR FUEL

230.21. Spent nuclear fuel defined

§ 1. For the purposes of this Act, “spent nuclear fuel”

means the irradiated energy source that is permanently re-

moved from the core of a nuclear fission reactor either because

it can no longer effectively sustain a chain reaction due to the

depletion of fissionable isotopes ang the buildup of by-products

that interferes with the chain reaction or because safety or

operating concerns dictate such removal.

P.A. 81-1516, Art. II, § 1, eff. Dec. 3, 1980.

230.22. Foreign spent nuclear fuel— Disposal or storage facil-

ities—Reciprocity agreements

§ 2. No person may dispose of, store, or accept any spent

nuclear fuel which was used in any power generating facility

located outside this State, or transport into this State for

disposal or storage any spent nuclear fuel which was used in

any power generating facility located outside this State, unless

the state of origin of such spent nuclear fuel has a facility, which

is not part of a power generating facility, for the disposal or

storage of spent nuclear fuel substantially like that of this State

and has entered into a reciprocity agreement with this State.

The determination as to whether the state of origin has a

disposal or storage facility for spent nuclear fuel substantially

like that of this State is to be made by the Director of the

Department of Nuclear Safety and all reciprocity agreements

must be approved by a majority of the members of both Houses

of the General Assembly and approved and signed by the

Governor.

P.A. 81-1516, Art. II, § 2, eff. Dec. 3, 1980.

30a

230.23. Fines and penalties

§3. Any person who violates any provision of this Act

shall be liable to a civil penalty of not to exceed $10,000 for

each violation and an additional civil penalty of not to exceed

$1,000 for each day during which violation continues.

P.A. 81-1516, Art. II, § 3, eff. Dec. 3, 1980.

230.24. Injunction— Violations

§ 4. The State’s Attorney in a county where a violation

occurs or Attorney General may institute a civil action for

immediate injunction to halt any activity which is in violation of

this Act.

P.A. 81-1516, Art. II, § 4, eff. Dec. 3, 1980.