# Petition — Hartigan v. General Electric Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0991%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 461 U.S. 913 ## Text 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0991%3A1. Public record. Not legal advice.