Petition for Writ of Certiorari — New York v. United States

iis TD

FILED

IN THE

Supreme Court of the United Sttié ° ™

SEP 30 199)

aus |

October Term, 1991

THE STATE OF NEW YORK,

Petitioner,

against

THE UNITED STATES OF AMERICA; JAMES D. WATKINS, as Secretary

of Energy, KENNETH M. CARR, as Chairman of the United States

Nuclear Regulatory Commission, THE UNITED STATES NUCLEAR

REGULATORY COMMISSION; SAMUEL K. SKINNER, as Secretary of

Transportation; and WILLIAM P. BARR, as Acting United States Attorney

General,

Defendants,

THE STATE OF WASHINGTON; THE STATE OF NEVADA; and THE

STATE OF SOUTH CAROLINA,

Intervenors.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

ROBERT ABRAMS

Attorney General of the State of New York,

Attorney for Petitioner

The Capitol

Albany, NY 12224

(518) 473-0330

QO. PETER SHERWOOD

Solicitor General

PETER H. SCHIFF

Deputy Solicitor General

and Counsel of Record

JOHN MCCONNELL

Assistant Attorney General

Of Counsel

THE REPORTER COMPANY, INC., Walton, NY 13856—800 252-718!1—1991

(1379—LC4-527)

i.

Question Presented

Whether Congress, consistent with the limits imposed by

the Constitution and especially the Tenth Amendment, may

directly compel a State to “be responsible for” and develop

a plan for the disposal of low-level radioactive waste pro-

duced by private, state, and some federal generators within

the State’s borders, and may require the State to take title

to, assume possession of, and be legally liable for such

wasie if it fails to develop and implement such a plan.

il

Parties

The parties to the proceeding below were:

—_—

. The State of New York, Plaintiff;

2. The County of Allegany, New York, Plaintiff;

3. The County of Cortland, New York, Plaintiff,

4. The United States of America, Defendant;

5. James D. Watkins, as Secretary of Energy, Defendant;

6. Kenneth M. Carr, as Chairman of the United States

Nuciear Regulatory Commission, Defendant,

7. Samuel K. Skinner, as Secretary of Transportation,

Defendant;

8. William P. Barr, as Acting United States Attorney

General, Defendant;!

9. The State of Washington, Intervenor;

10. The State of Nevada, Intervenor,

11. The State of South Carolina, Intervenor.

'In the proceedings below, Richard Thornburgh was named as a

defendant in his capacity as United States Attorney General. Mr. Barr,

who is currently Acting United States Attorney General, has been

substituted pursuant to Supreme Court Rule 35 3.

+e

il.

Table of Contents.

Page

ES Es i

cies ncccckscescscccvecces il

ss ca ce cc ceccceccces iv

EEE 2

cscs cc cc sc cecccccsccsees 2

Constitutional and Statutory Provisions Involved .... 3

eee 4

Reasons for Granting the Writ

The Second Circuit’s decision improperly narrows

the scope of Tenth Amendment challenges

TE cw eccece Y

Conclusion

iV.

Page

Appendix

Opinion of the United States Court of Appeals,

Second Circuit, dated August 8, 1991 ....... la

Opinion of the United States District Court for the

Northern District of New York, dated Decem-

gt SO Rr ror er yer re 18a

Judgment of the United States District Court for

the Northern District of New York, dated

December 26, 1990...................00.. 27a

Table of Authorities.

CASES:

Brown v EPA, 521 F2d 827 (9th Cir 1975), vacated

and remanded for consideration of mootness,

re pec ee ee, s 16

Coyle v Smith, 221 US 559 (1911).........0...... &

District of Columbia v Train, 521 F2d 971 (D.C. Cir

1975), vacated and remanded for consideration

of mootness sub nom. EPA v Brown, 431 US 99

SO <6 6 od bxcu deed uetkes icc ee 16

Federal Energy Regulatory Commission (FERC) v

Mississippi, 456 US 742 (1982)............. 15

Garcia v San Antonio Metropolitan Transit Authority,

dk | ea passim

Gregory v Ashcroft, 111 S Ct 2395 (1991)......... 10

Page

Hodel v Virginia Surface Mining & Recl. Assn., 452

NIG. scckcukeudeen deeey eens 15, 16

Maryland v EPA, 530 F2d 215 (4th Cir 1975), vacated

and remanded for consideration of mootness

sub nom. EPA v Brown, 431 US 99 (1977)... 16

New York v United States of America, 757 F Supp 10

(NDNY 1990), affd, Nos. 91-6031, 91-6033 &

91-6035 (2d Cir August 8, 1991) (1991 WL

a ER ee re er tre ere 2

Pennsylvania v EPA, 500 F2d 246 (3d Cir 1974)... 17

South Carolina v Baker, 485 US 505 (1988)..... ‘12, 17

UNITED STATES CONSTITUTION:

Tenth Amendment..... ea gede cuneésuden dene passim

FEDERAL STATUTES:

Pe NY bo 5s 05 dros cn scuvcenensusanue tres 4

PT sew ede eveiceveaes¥icyaneseny 4

TEED co ectcsccussavrdneunsennes 4

oi ep | werner rs err 4

Tax Equity and Fiscal Responsibility Act of 1982

DS 65 c tances cave be Reet eenmwenes 17

IE cn cayeeccacccencucesucdneuunnens 12

Vi.

Page

’ No.

ee ED. a ables eu kek be eeeuens 2

IN THE

DE pes od enies kaka Ree e eRe 2

SUPREME COURT OF THE UNITED STATES

| Serer Perey errr 2

OCTOBER TERM, 1991.

DE Cet cu ae lls eee Sea biseerecahs 2

e

I Reo UO Nal aE iy ad ier 2

THE STATE OF NEW YORK,

Ee ee cial os ou ewe ee Raed 2 7

Petitioner,

I I tread ei he leg 12 against

ee ee IN 5 6s 655 hc bande bce Kaw tees 5 THE UNITED STATES OF AMERICA; JAMES D. WATKINS, as

. . Secretary of Energy; KENNETH M. Carr, as Chairman of

a ae the United States Nuclear Regulatory Commission; THE

UNITED STATES NUCLEAR REGULATORY COMMISSION;

od) |) Senn 2 SAMUEL K. SKINNER, as Secretary of Transportation; and

WILLIAM P. Barr, as Acting United States Attorney

athe eI et ie Lae AOE See se Re rag 6 General,

RE PT ATE SC ete han 6 Defendants,

NEE See eta t«* THE STATE OF WASHINGTON; THE STATE OF NEVADA; and

THE STATE OF SOUTH CAROLINA,

ON ho Oar ree ag oe 6 Pn

DOD. oon Gned oi eetot wert at tron oe e —

iy EE gee telah tan a, Mee hae 12 Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

eet ge bee eee 12

2

The petitioner State of New York respectfully prays that

a writ of certiorari issue to review the judgment and opin-

ion of the United States Court of Appeals for the Second

Circuit, entered in the above-entitled proceeding on August

8, 1991 (Nos. 91-6031, 91-6033 and 91-6035).

Opinions Below

The opinion of the Court of Appeals for the Second

Circuit is reported at ___. F2d __ (2d Cir August 8,

1991) (Westlaw 1991 WL 150660), and is reprinted in the

appendix hereto, p. la, infra.

The opinion of the District Court is reported at 757

F Supp 10 (NDNY 1990), and ts reprinted in the appendix

hereto, p. 18a, infra.

Jurisdiction

Invoking federal jurisdiction under 28 USC §§ 1331.

1337, 1346, 2201, and 2202, petitioner and other plaintiffs

brought this suit in the Northern District of New York. On

December 7, 1990, the Northern District granted defend-

ants’ motion to dismiss the complaint. See p. | 8a, infra.

On plaintiffs’ appeals, the Second Circuit on August &,

1991 entered a judgment and opinion affirming the District

Court’s order. See p. 1a, infra.

This Court’s jurisdiction is invoked under 2% US¢

§ 1254(1).

3

Constitutional and Statutory Provisions Involved

United States Constitution, Tenth Amendment:

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.

42 USC § 2021 cla) (1):

Each State shall be responsible tor providing, either

by itself or in cooperation with other States, for the

disposal of -

(A) low-level radioactive waste generated within

the State (other than by the the Federal Govern-

ment) that consists of or contains class A, B, or C

radioactive waste as defined by section 61.55 of title

10, Code of Federal Regulations, as in effect on

January 26, 1983;

(B) low-level radioactive waste described in sub-

paragraph (A) that is generated by the Federal Gov-

ernment except such waste that is

(1) owned or generated by the Department of

Energy;

(1) owned or generated by the United States

Navy as a result of the decommissioning of ves

sels of the United States Navy, or

(ii) owned or generated as a result of any

research, development, testing, or production of

any atomic weapon * * * *

4

42 USC § 202le (d) (2) (C):

* * *

If a State (or, where applicable, a compact region) in

which low-level radioactive waste is generated Is

unable to provide for the disposal of all such waste

generated within such State or compact region by

January 1, 1996, each State in which such waste 1s

generated, upon the request of the generator or

owner of the waste, shall take title to the waste, be

obligated to take possession of the waste, and shall

be liable for all damages directly or indirectly

incurred by such generator or Owner as a conse-

quence of the failure of the State to take possession

of the waste as soon after January 1, 1996, as the

generator or owner notifies the State that the waste

is available for shipment.

Statement of the Case

In an effort to provide for the secure disposal of iow-level

radioactive waste materials generated throughout the

United States, Congress enacted the Low Level Radioac-

tive Waste Policy Act (Pub. L. 96-573) in 1980.° That

legislation set forth a federal policy that each State, in its

capacity as state sovereign, was responsible for providing

for the disposal of low-level radioactive waste generated

within its borders by private, state, and certain federal

producers; empowered States to form interstate compacts

to meet these duties; and enabled compact States to bar use

of compact facilities for the disposal of waste generated

outside the compact region after January 1, 1986. P.L.

96-573, §§ 4(aX(1), 4(aX 2B).

2Low-level radioactive waste was defined in the 1980 Act as

“radioactive waste not clamwified as high level radioactive waste, trans-

uranic waste, spent nuclear fuc!, or byproduct material as defined in

n tegen et

section 1 1e.(2) of the Atomic Energy Act of 1954." PL. 96-573, § 202)

5

While a majority of states joined or proposed to join

compacts in the years following the passage of the 1980

Act, no new state or regional disposal facilities were pro-

jected to become operational until the early 1990s. Conse-

quently, the exclusion provision of the 1980 Act posed a

problem: congressional ratification of proposed compacts

whose members operated existing disposal sites (Washing-

ton, Nevada, and South Carolina) might have denied access

to disposal sites to all states who were not in those com-

pacts. Accordingly, Congress enacted the Low-Level

Radioactive Waste Policy Amendments Act of 1985 (42

USC §§ 2021b-2021i) to permit ratification of proposed

compacts while granting all states continued limited access

to existing disposal sites.

The 1985 Act assigned to the States in their sovereign

capacity mandatory responsibility for the disposal of low-

level radioactive waste.> It further provided that condi-

tional access to disposal sites in Washington, Nevada, and

South Carolina would be granted to all states between

January 1, 1986 and December 31, 1992, and set forth a

detailed transition scheme, with incentives and penalties, to

3The 1985 Act defines low-level radioactive waste (LLRW) as

radioactive material that: (a) is not “high-level” radioactive waste,

spent nuclear fuel, or by-product material as defined at 42 USC §

2014(e)(2); and (b) is classified as LLRW by the Nuclear Regulatory

Commission. Nationwide, about 90% of the volume and 97% of radio-

activity of LLRW for which the 1985 Act assigns disposal respon-

sibility to the states comes from nuclear power plants and other indus-

trial sources; the remainder is generated by research laboratories,

hospitals, and medical centers.

The Act requires the States to be responsible for disposal of Class

A waste (containing radioactivity which will diminish to a safe expo-

sure level within 100 years), Class B waste, and Class C waste (requir-

ing protection against exposure for 500 years). Class C waste com-

prises less than 1% of volume and emits over 65% of the radiation of all

LLRW.

6

encourage compact formation and disposal site develop

ment. 42 USC § 2021c¢.*

A novel affirmative directive of the 1985 Act was con

tained in 42 USC § 202 1e(dn2 KC):

If a State (or, where applicable, a compact region) in

which low-level radioactive waste is generated is

unable to provide for the disposal of all such waste

generated within such State or compact region by

January |, 1996, each State in which such waste ts

generated, upon the request of the generator or

owner of the waste, shall take title to the waste, be

obligated to take possession of the waste, and shall

be liable for all damages directly or indirectly

incurred by such generator or Owner as a conse-

quence of the failure of the State to take possession

of the waste as soon after January |, 1996, as the

generator or owner notifies the State that the waste

is available for shipment.

With this provision, Congress decisively altered the

method and impact of prior legislation regulating low-level

radioactive waste disposal through encouragement and vol

untary incentives. The new Act abruptly coupled “respon

sibility” for such waste with a free-standing mandate that

each State develop a program for the disposal of waste

generated within its borders by private and other genera-

tors, including some federal generators. It strengthened this

‘By specific dates within that period, States and compacts were

directed to comply with a number of regulatory requirements, includ

ing: ratification of compact legislation or indication of the State's intent

to site a LLRW disposal facility in state, development of a siting plan,

and license application (202 lele} [1]). Failure to meet this schedule

might result in added surcharges upon waste generators by disposal site

operators, denial of access to the Washington, Nevada, and South

Carolina sites, and loss of certain surcharge rebates to the States

(202 1e{d], [e)).

~

/

mandate through the command that States assume owner-

ship and possession of, as well as legal liability for, such

waste if they fail to comply with the federal scheme and

timetable of regulation.

New York State’s congressional delegation participated

in the drafting and enactment of both the 190 and the

1985 Acts.

In February, 1990, the State of New York and the Coun-

ties of Allegany and Cortland, New York, commenced an

action in the United States District Court for the Northern

District of New York against various federal defendants,

seeking a declaration that, among other constitutional

flaws, the 1985 Act violated the Tenth Amendment through

the imposition of these broad new affirmative duties upon

the States. The States of Washington, Nevada, and South

Carolina subsequently jcined the action as intervenors in

support of defendants.

The District Court (Cholakis, J.) granted defendants’

motion for summary judgment and dismissal of the com-

plaint in a bench decision issued in December, 1990.

Addressing the Tenth Amendment claim, the court declared

that in light of this Court’s holding in Garcia v San Antonio

Metropolitan Transit Authority, 469 US 528 (1985), that

“judicial review of Congressional enactments founded on

Commerce Clause powers should be limited primarily to

inquiry of whether the political process has failed,” Tenth

Amendment review was proper only to discern “problems

which may have had an untoward effect on a particular

law’s enactment or its subsequent political review” (22a,

25a). Finding that the 1985 Act imposed no restriction on

New York’s “ability to operate in the political arena and to

challenge the law,” the court found judicial review unwar-

ranted on grounds of a failure of the political process.

a)

While recognizing that Garcia left open the possibility of

judicial review of the substantive impact of federal action

under the Commerce Clause in exceptional cases, the court

ruled that such exceptions arose only “when constitutional

equality amongst the states has been jeopardized” by the

federal act (23a). Finding no such jeopardy, nor other

grounds for constitutional attack, in the 1985 Act, the court

dismissed the State’s and counties’ complaint (26a).

On appeal, the Court of Appeals for the Second Circuit

affirmed. In its decision, the court observed that, in light of

Congress's traditional role in nuclear regulation, “appel-

lants undertake an unusually burdensome task” in chal-

lenging the 1985 Act (10a). The court held that “both the

1980 Act and its 1985 Amendments are paragons of legis-

lative success” (13a), and rejected any claim that the Act or

its take title provision was the product of a failure in the

political process.

The court found unpersuasive appellants’ argument that

Garcia permitted review of congressional mandates, such

as the take title provision, which significantly limited the

States’ role in the federal system and thereby altered the

federal constitutional structure. While it neither confirmed

nor denied that such review is permissible, it endorsed the

district court’s holding that such review, if permissible.

could consider only whether the federal act upset the

“equality in dignity and power” among the several States

(15a; citing Coyle v Smith, 221 US 559 {191 1]). “In sum,”

the court noted (16a),

we are satisfied that the take title provision does not

undermine the constitutional structure. Neither does

it violate principles of federalism as recently

explained in Garcia; and ‘|wJhere, as here, the

national political process did not operate in a defec-

tive manner, the Tenth Amendment is not impli-

ae

9

cated.’ [South Carolina v] Baker, 485 US. [505

(1988)] at 513 (emphasis in original).

lhe court also dismissed challenges to the Act based upon

the Eleventh Amendment and the Cruaranty Clause

(16a- 17a), and affirmed the grant of summary judgment to

defendants. :

REASONS FOR GRANTING THE WRIT

The Second Circuit’s decision improperly narrows the

scope of Tenth Amendment challenges under Garcia.

In its decision in Garcia v San Antonio Metropolitan

Transit Authority, 469 US 528 (1985), this Court deter-

mined that the primary protection of state sovereign inter-

ests in the federal system lay with the federal political

process and that Tenth Amendment challenges to federal

Statutes must generally allege a failure of that process 469

US at 550, 554. This Court expressly recognized, however

that additional Tenth Amendment protection might be

available to the States in cases where federal action, though

not the product of a defective political process, was more

intrusive than that reviewed in Garcia or its antecedents.

stating (469 US at 556):

These cases do not require us to identify or define

what affirmative limits the constitutiona! structure

might impose on federal action affecting the States

under the Commerce Clause. See Covle v. Okla-

homa, 221 U.S. $59 (1911).

We believe that the present case requires substantive

consideration of the Tenth Amendment challenge even

under the limited criteria of Garcia.

10

The contours of the constitutional structure referred to in

Garcia, and the importance of the limits which it imposes,

were recently set forth by this Court in Gregory v. Ashcroft,

111 S Ct 2395 (1991). Noting that the Constitution created

a federal government of limited powers, including limita

tions under the Tenth Amendment, the Court observed (111

S Ct at 2399-2400):

This federalist structure of joint sovereigns pre-

serves to the people numerous advantages. It assures

a decentralized government that will be more sensi-

tive to the diverse needs of a heterogeneous socicty,

it increases opportunity for citizen involvement in

democratic processes; it allows for more innovation

and experimentation in government, and it makes

government more responsive by putting the States in

competition for a mobile citizenry. . . .

Perhaps the principal benefit of the federalist sys

tem is a check on abuses of government power. . . .

Just as the separation and independence of the coor-

dinate Branches of the Federal Government serves

to prevent the accumulation of excessive power in

any one Branch, a healthy balance of power

between the States and the Federal Government will

reduce the risk of tyranny and abuse from either

front... .

...In the tension between federal and state

power lies the promise of liberty.

The courts below failed to recognize that the 1985 Act,

and especially its take title provision, exceeds the limits

imposed on federal action by the Tenth Amendment by

seriously undermining the basic federal structure and sets a

dangerous precedent for abuse of Congress's coordinate

power in the federal system

The 1985 Act differs fundamentally from all federal

action previously reviewed by this Court under the Tenth

Amendment. While it is not the first congressional act

which seeks to have the States exercise their sovereign

powers for federal purposes, it is the first to impose upon

each State an affirmative duty to exercise sovereign powers

of legislation and regulation within the State, in accordance

with a federal regulatory scheme, without the State’s con-

sent, and with no option for the State’s withdrawal from the

role of regulator or actor in the field. The imposition is

threefold: the broad assignment to the States of “respon-

sibility” for a federal regulatory concern; the establishment

of parameters and a timetable for compliance with that

assignment of regulation; and the attachment of draconian,

affirmative obligations on the States for a refusal or failure

to meet that regulatory responsibility or timetable.

Most insidiously, under the 1985 Act, after January 1,

1996, States which do not provide for disposal of low level

radioactive waste generated within their borders are made

responsible by the Federal government for all such waste

generated by private producers and some federal producers

throughout the State. In a manner to our knowledge unpre-

cedented, the take title provision transfers by congressional

edict the ownership obligations of federal and private par-

ties to the State. States are compelled by this provision to

exercise their sovereign powers as agents of federal regula-

tion, not as a consequence of reflection and decision by

state legislative and executive branches, but by fiat of the

hederal government. These duties and obligations are not

imposed upon the State in its capacity as a generator of

low-level waste like any other economic actor, or even in

its Capacity as an agreement state and past regulator of

12

such waste.> Rather, it is imposed solely in light of the

State’s sovereign capacity.

The 1985 Act, therefore, differs substantiaily from the

amendments to the Fair Labor Standards Act reviewed in

Garcia, which merely extended to state and local govern-

ments the regulations which imposed _ overtime,

recordkeeping, and other obligations upon employers

throughout the nation. These “generally applicable federal

regulations” (South Carolina v Baker, 485 US 505, 515

[1988]) did not include requirements that States initiate or

continue an employment program, or perform a unique role

as regulator of hiring practices within their borders.

While Congress has in the past used the Commerce

Clause as a basis for strongly encouraging state sovereign

participation in federal regulatory schemes, such schemes

have generally provided for voluntary state action in licu of

federal regulation (e.g., Clean Air Act, 42 USC §§ 7401

[al[3], 7407[a]; Clean Water Act, 33 USC § 1251[b]), or

have made voluntary receipt of federal funds contingent

upon compliance (e.g., 23 USC § 154 [regulation of travel

speed on public highways]). In cases where Congress

directs that federal funding be contingent upon state partic-

ipation in a federal regulatory scheme, States are left with

> Under federal guidance, New York State has been active in the

regulation of such materials within its borders for close to three decade.

aS an agreement state in accordance with 42 USC § 2021 (b) In

addition, the New York State Power Authority currently operates two

nuclear power plants within the State, and waste materials are produced

at various state hospitals and research facilities. Moreover, with federal!

encouragement the State voluntarily participated in an cxperimenta!

program for nuclear waste management at West Valley, New York

between 1963 and 1975, ultimately the program was terminated

because of health and safety concerns. However, at no time prior to the

1980 and 1985 Acts was the State’s role as a producer or regulator of

low-level waste an obligatory burden imposed by the federal govern

ment. In each case, the role was determined by the State Legislature and

Executive, in the exercise of their sovercign authority

13

the choice of whether the state interests advanced by such

funding outweighed the burden upon the state governmen-

tal structure in fulfilling the federal reguiatory functions

imposed upon it. A similar choice is available to state

sovereigns in cases where a federal regulatory scheme

offers States the opportunity to participate in lieu of federal

regulators. In all such cases, although the choice may be

difficult, and the realistic probability that the State will

elect not to participate in the federal regulatory scheme

may be small, the choice exists nonetheless.

We submit that this opportunity for the State to act

through its legislature in determining whether to participate

in a federal program is an essential aspect of the structure

of the federal system. Without it, that structure is severely

compromised. Absent the opportunity to abstain from fed-

eral regulatory schemes which invoke the States’ sovereign

powers, state governments are forced to become unwilling

subordinate agents to congressional dictates. Absent the

opportunity to make such decisions, they are sharply con-

strained in their ability, noted in Garcia and repeated in

Ashcroft, to serve as laboratories for social and economic

experiment, or “to engage in any activity that their citizens

choose for the common weal.” 469 US at 546. Without

such options, not only may States be compelled to partici-

pate in federal regulatory schemes by inescapable congres-

sional fiat, but they may also be obliged to assume respon-

sibility for the full financial and administrative burden of

such schemes.

Under the 1985 Act, States are required either to adopt a

program regulating the disposal of non-state generated

low-level radioactive waste in accordance with federal

requirements or else to assume complete ownership respon-

sibility for such wastes, including the liability that would

14

otherwise rest with the non-state generators under state

law. In either case, the 1985 Act directly compels the State

to take extensive sovereign action to manage private and

federal low-level radioactive waste. This is, we submit, an

unprecedented and unconstitutional exercise of federal

power.

It is indisputable in this case that the 1985 Act treated a

matter of serious national concern, was imposed by a well-

intentioned Congress, and addressed a regulatory field

where some States have voluntarily participated in the past.

Indeed, New York State has sought for three decades to

encourage the responsible development of nuclear power

within its borders and has pioneered experiments in nuclear

waste management technology. Throughout this period,

however, each of the State’s efforts as a generator and

regulator of nuclear material was undertaken after careful

reflection and decision by its legislative and executive

branches, substituting for or augmenting an underlying

scheme of federal regulation. In contrast, under the 1985

Act, States are denied the power to decide in broad terms

whether and how their legislative and regulatory powers

will be used. Though they are left with some flexibility in

choosing the details of compliance with federal demands—

e.g., whether or not to join a compact; how such a compact

might be organized; whether or not the compact snould

exclude waste from non-member states, etc.—the terms of

the take title provision bar States from reaching and imple-

menting legislative decisions to decline or cease to exercise

local sovereign power in the regulatory field.

The Act imposes an unprecedented substantive burden

upon state members of the federal system. Its enactment

evidences a truth expressly recognized by this Court in

Garcia: the process of federal! lawmaking, however

informed and expeditious, does not guarantee that Con-

15

gress cannot err, and through such error, cause harm to the

structure of the federal system.

To our knowledge, this Court has never before reviewed

a regulatory scheme of this type in light of the Tenth

Amendment. Prior to Garcia, however, this Court indicated

its concern over efforts by the federal government to “use

state regulatory machinery to advance federal goals.” Fed-

eral Energy Regulatory Commission (FERC) v Mississippi,

456 US 742, 759 (1982). Upholding against Tenth Amend-

ment challenge in FERC various sections of the federal

Public Utility Regulatory Policies Act of 1978 (PURPA)—

including a requirement that States hold public hearings

and consider implementation of certain federal regulatory

standards—this Court emphasized that PURPA required

mere consideration, rather than outright adoption of the

federal scheme (456 US at 765-66):

While the condition here is affirmative in nature—

that is, it directs the States to entertain proposals—

nothing in this Court’s cases suggests that the nature

of the condition makes it a constitutionally improper

one. There is nothing in PURPA “directly compel-

ling” the States to enact a legislative program. In

short, because the two challenged Titles simply con-

dition continued state involvement in a pre-emptible

area on the consideration of federal proposals, they

do not threaten the States’ “separate and independ-

ent existence” [citations omitted], and do not impair

the ability of the States “to function effectively in a

federal system.” [citations omitted. ]

Similar concerns were expressed in Hodel v Virginia Sur-

face Mining & Recl. Assn., 452 US 264 (1981), in which this

Court reviewed the Surface Mining Control and Reclama-

tion Act of 1977, which empowered the Department of the

interior to promulgate and enforce guidelines for the

16

nationwide regulation of surface coal mining. Under that

Act, States were afforded the opportunity to operate their

own regulatory programs so long as such programs com-

plied with federal regulatory standards. 452 US at 268-72.

In upholding the Act's provisions against Tenth Amend-

ment challenge, this Court distinguished the establishment

of federal minimum regulatory standards upon private

activity in the States from the imposition of affirmative and

unavoidable regulatory obligations upon state governments

(452 US at 288):

[TJhe States are not compelled to enforce the

steep-slope standards, to expend any state funds, or

to participate in the federal regulatory program in

any manner whatsoever. If a State does not wish to

submit a proposed permanent program that com-

plies with the Act and implementing regulations, the

full regulatory burden will be borne by the Federal

Government. Thus, there can be no suggestion that

the Act commandeers the legislative processes of

the States by directly compelling them to enact and

enforce a federal regulatory program.

This Court’s opinions in both Hodel and FERC, therefore,

suggest that congressional! imposition of a federal regula-

tory scheme through unwilling state action was, standing

alone, constitutionally suspect under the Tenth Amend-

ment. That view was also expressed in opinions by three

Courts of Appeals more than a decade ago.® While this

See, e.g., Maryland v EPA, 530 F2d 215 (4th Cir 1975), vacated

and remanded for consideration of mootness sub nom. EPA v Brown,

431 US 99 (1977) (per curiam) (EPA regulations compelling states to

establish and fund automobile inspection programs, under penaity of

criminal and civil sanctions upon non-complying states, violate Tenth

Amendment); Brown v EPA, 521 F2d 827 (9th Cir 1975), vacated and

remanded for consideration of mootness, 431 US 99 (1977) (per curiam)

(same); District of Columbia v Train, 521 F2d 971 (D.C. Cir 1975),

(Footnote continued on next page.)

17

Court in South Carolina v Baker, 485 US 505 (1988), lett

open the possibility that the teachings of FERC on this issue

might to some degree have been subsumed by Garcia (485

US at 513), this Court did not address the issue as such

because it was unnecessary to do so.’

In short, we believe that the courts below erred in their

conclusion that this Court’s opinion in Garcia barred sub-

Stantive review of the 1985 Act under the Tenth Amend-

ment. While the courts below may be correct in their view

that the 1985 Act does not upset the “equality in dignity

(Footnote continued.)

vacated and remanded for consideration of mootness sub nom. EPA v

Brown, 431 US 99 (1977) (per curiam) (same). Contra, Pennsylvania v

EPA, 500 F2d 246 (3d Cir 1974). After the Supreme Court had granted

certiorari in three EPA cases in 1976, the EPA rescinded some of the

regulations at issue and conceded that others were invalid unless mod-

ified. Thus, the Court vacated and remanded without ruling on their

constitutionality. 431 US at 103-04.

’The federal act challenged in Baker—section 310(b)(1) of the Tax

Equity and Fiscal Responsibility Act of 1982 (TEFRA)—removed

federal income tax exemptions for interest earned on new bonds issued

by state and local governments unless the bonds were issued in regis-

tered form. Designed to provide a strong incentive to encourage gov-

ernments to issue registered bonds, this portion of the Act merely

provided that bondholders of States which did not comply with the

federal regulatory scheme would forfeit the tax benefits previously

extended to them by the federal government. As the Court noted in

response to the claim that the effect of TEFRA was to commandeer

South Carolina’s legislative process (485 US at 514-15, emphasis

added):

Such “commandeering™ 1s ... an inevitable consequence of

regulating a state activity. Any federal regulation demands

compliance. That a State wishing to engage in certain activity

must take administrative and sometimes legislative action to

comply with federal standards regulating that activity is a

commonplace that presents no constitutional defect.

Unlike the 1985 Act, TEFRA did not compel an exercise of state

sovereign power, or the legislative enactment of a new regulatory

program.

18 la

and power” among the several States, we believe that the APPENDIX

consh oases elghe tnpass egap Sotent cotton ofletiag Opinion of the United States Court of Appeals, Second

the States under the Commerce Clause” (469 US at 556), Circuit, Dated August 8, 1991

Should find tat Gavcis bers review of tio mutter thi UNITED STATES COURT OF APPEALS

Court should consider whether, in light of the danger to the

federal system inherent in this new style of congressional

regulation, this Court’s opinion in Garcia should be

FOR THE SECOND CIRCUIT.

e

reconsidered.

No. 1511, 1512, i >

CONCLUSION 0 12, 1513 August Term, 1990

(Argued: May 21, 1991 Decided: Aug. 8, 1991)

This Court should grant a writ of certiorari. Docket No. 91-6031, 91-6033 & 91-6035

e

Dated: Albany, New York

September 27, 1991 THE STATE OF NEW YORK, THE COUNTY OF ALLEGANY,

NEW YorK and THE COUNTY OF CORTLAND, NEW YORK,

Respectfully submitted,

Plaintiffs-Appellants,

ROBERT ABRAMS V.

Attorney General of the State of New THE UNITED STATES OF AMERICA; JAMES D. WATKINS, as

York Secretary of Energy; KENNETH M. Carr, as Chairman of

Attorney for Petitioner the United States Nuclear Regulatory Commission; THE

UNITED STATES NUCLEAR REGULATORY COMMISSION;

O. PETER SHERWOOD SAMUEL K. SKINNER, as Secretary of Transportation; and

Solicitor General RICHARD THORNBURGH, as United States Attorney

General,

PETER H. SCHIFF Defendants-Appellees,

Deputy Solicitor Genera!

and Counsel of Record STATE OF WASHINGTON; STATE OF NEVADA; and STATE

OF SOUTH CAROLINA,

JOHN MCCONNELL

Intervenors-Appellees,

Assistant Attorney General PP

AMERICAN COLLEGE OF NUCLEAR PHYSICIANS; ARIZONA

of Counsel PUBLIC SERVICE COMPANY; BALTIMORE Gas & ELEC-

2a

TRIC COMPANY; CALIFORNIA RADIOACTIVE MATERIALS

MANAGEMENT ForuM, INC.; COMMONWEALTH EDISON

COMPANY; FLORIDA POWER & LIGHT COMPANY; GULF

STATES UTILITIES COMPANY; MALLINKRODT MEDICAL,

Inc., Pacific Gas & EL_ectric Co., Pusiic SErRvict

COMPANY OF COLORADO; SOCIETY OF NUCLEAR MEDI-

CINE; SOUTHERN CALIFORNIA EDISON Co.,

Amici Curiae.

Before: MESKILL, PiERCE and MCLAUGHLIN, Circuit Judges.

Appeal from a judgment entered in the United States

District Court for the Northern District of New York (Con.

G. Cholakis, Judge), dismissing a civil complaint secking

declaratory judgment. 28 U.S.C. §§ 2201, 2202.

Held: Under Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528 (1985), the Low-Level Radioactive Waste

Policy Amendments Act of 1985, 42 U.S.C. § 2021b-2021),

does not violate state sovereignty protected under the Tenth

Amendment and related principies of federalism.

AFFIRMED.

PETER SCHIFF,

Deputy Solicitor General

State of New York

(Robert Abrams, Attorney General of

the State of New York, O. Peter

Sherwood, Solicitor General, John

McConnell, Assistant Attorney

General, of counscl),

for Plaintiff-Appellant State of

New York.

3a

EDWARD F. PREMO, II

Harter, Secrest & Emery

Rochester, NY.

(Paul D. Sylvestri, of counsel)

for Plaintiff-Appellant County of

Allegany, New York.

DEBORAH GOLDBERG

Berle, Kass & Case

New York, N-Y.

(Michael B. Gerrard, of counsel)

for Plaintiff-Appellant County of

Cortland, New York.

JEFFREY P. KEHNE

United States Department of Justice

Environment & Natural Resources

Division

Washington, D.C.

(Anne S. Almy and Louise F. Milkman

of counsel)

for Defendants-Appellees.

,

ALLEN T. MILLER, JR.

Assistant Attorney General

State of Washington

Ecology Division

Olympia, WA.

(Kenneth O. Eikenberry, Attorney

General, State of Washington)

for Intervenors-Appellees State of

Washington and State of Nevada.

4a

JAMES PATRICK HUDSON

Deputy Attorney General

State of South Carolina

Columbia, S.C.

(T. Travis Medlock, Attorney General

of the State of South Carolina)

for Intervenor-Appellee State of

South Carolina.

DONALD J. SILVERMAN

Newman & Holtzinger, P.C.

Washington, D.C.

(Patricia A.E. Comella and Steve A.

Linick, of counsel)

brief submitted for Amici Curiae

in support of Appellees.

McLaughlin, Circuit Judge:

Plaintiffs-appellants appeal from a judgment entered in

the United States District Court for the Northern District of

New York (Con. G. Cholakis, Judge), dismissing a civil

complaint seeking declaratory relief. 28 U.S.C. §§ 2201,

2202. The district court found that the Low Level Radioac-

tive Waste Policy Amendments Act of 1985, 42 U.S.C.

§ 2021b-2021), was not an impermissible affront to state

sovereign immunity protected under the Tenth Amend.

ment, and that, absent unequal treatment accorded to the

State of New York or a defect in the federal political

process, Supreme Court precedent precludes further judi-

cial review of the federal statute. The district court also

found no Eleventh Amendment violation and dismissed

plaintiffs’ remaining challenges as meritless.

bor the reasons‘set forth, we affirm

/

Sa

BACKGROUND

More than thirty years ago, Congress sought to engage

the states in a partnership venture that would recognize the

interests of the several states in the peaceful uses of nuclear

energy. Pub. L. No. 86-373, § 1, 73 Stat. 688, codified as

amended 42 U.S.C. § 2021. See English v. General Elec. Co.,

110 S. Ct. 2270, 2276 (1990) (“In 1959, Congress amended

the Atomic Energy Act in order to ‘clarify the respective

responsibilities .. . of the States and the [Federal Govern-

ment]’ .. . and generally to increase the States’ role.”).

Under the Atomic Energy Act, the Atomic Energy Com-

mission, predecessor to the Nuclear Regulatory Commis-

sion (“NRC” or “Commission”), was authorized to make

agreements with the Governor of any state “providing for

discontinuance of the regulatory authority of the Commis-

sion” with respect to enumerated nuclear materials and

byproducts. 42 U.S.C. § 2021(b).

In 1959, an advisory committee formed at the behest of

Governor Nelson A. Rockefeller recommended that New

York execute an agreement with the Commission to have

the State assume all regulatory control possible under fed-

eral law. It should be noted, too, that the advisory commit-

tee also recommended at that early date that the State

establish a site to store radioactive waste, in part, “to

encourage the growth of the atomic industry within the

state.” Even before the advisory committee’s report was

issued, the New York State Legislature passed the 1959

Atomic Energy Act, see 1959 N.Y. Laws Ch. 41, declaring

it to be the State’s policy to encourage “development and

use of atomic energy for peaceful purposes.” New York

became a so-called “agreement state” under the federal

scheme by 1962. 27 Fed. Reg. 10, 419 (1962).

A concern, universally acknowledged, that has accom-

panied the expansion of the nuclear industry is the storage

6a

and disposal of low-level radioactive waste (“LLRW”) such

as contaminated waste from nuclear reactors, hospitals,

research laboratories and pharmaceutical companies. Dur-

ing the 1970's, disturbing problems surrounding safe

LLRW disposal reached mammoth proportions and com-

manded immediate congressional attention. As late as

1978 only three states— Washington, Nevada, and South

Carolina—had established sites for LLRW operations; the

rest of the country transported radioactive waste to these

locations—with obvious risks.

The problem worsened dramatically when Washington

and Nevada temporarily closed their sites because of

improper handling, transportation and packaging of LLRW,

shifting an aiready herculean task onto the lonely shoulders

of South Carolina’s Barnwell site. H.R. Rep. No. 314, 99th

Cong., Ist Sess., pt. 2 at 17, reprinted in 1985 U.S. Code

Cong. & Admin. News 2974, 3006. Understandably vexed

that sister states were not bearing a fair share of the dis-

posal burden, Washington voters approved a 1980 initiative

to ban in-state disposal of LLRW generated outside Wash-

ington State. While that initiative was struck as unconstitu-

tional, Washington State Bldg. & Constr. Trades Council v.

Spellman, 684 F.2d 627, 631 (9th Cir. 1982) (citing Phila-

delphia v. New Jersey, 437 U.S. 617, 628 (1978)), cert.

denied, 461 U.S. 913 (1983), it demonstrated that the

LLRW problem was fast becoming acute.

Congress turned its attention to these problems but, at the

states’ request, and in the interest of federalism, deferred

action to allow the formulation of state-based and state-

created proposals. 1985 U.S. Code Cong. & Admin. News

at 3007. The National Governors’ Association (NGA)

spearheaded the effort with a Task Force to review and

formulate a coordinated policy on the LLRW issue. Other

state-based associations, including the National Confer-

ence of State Legislatures and the President’s State Plan-

ning Council on Radioactive Waste Management, joined

Ta

the effort. Jd. Because, in the eyes of the NGA, disposition

of low-level waste was largely a state responsibility, the

Task Force’s first recommendation to Congress was that

“each state should accept primary responsibility for the

safe disposal of low-level radioactive waste generated

within its borders, except for waste generated at federal

government facilities.” Accordingly, the NGA invited Con-

gress to enact legislation that would (1) authorize states to

form interstate regional compacts; (2) eventually allow

compact regions to exclude LLRW generated outside the

region, and (3) provide for the safe interim storage of

LLRW.

Congress complied by enacting the Low-Level Radioac-

tive Waste Policy Act of 1980. 42 U.S.C. §§ 2021b-2021d

(the “1980 Act”). Subject to congressional consent, states

were authorized to form regional compacts and, after Janu-

ary 1, 1986, to refuse waste generated outside these estab-

lished regions. Many states apparently progressed toward

the establishment of regional compacts (or individual “go it

alone” in-state disposal sites), but the original target date of

January 1986 proved unrealistic. The three states that were

accepting LLRW, disquieted with frustration, again looked

to Congress. The NGA again stepped in to forge a state-

based consensus and negotiated a seven-year extension, or

“transition package” with the three sited states, buying

more time for the regional solutions to become operable.

1985 U.S. Code Cong. & Admin. News at 3008.

Acting on this consensus, Congress adopted elaborate

amendments to the 1980 Act, enacting the Low-Level

Radioactive Waste Policy Amendments Act of 1985. 42

U.S.C. § 2021b-2021j (“1985 Amendments”). The 1985

Amendments set out a detailed schedule of deadlines end-

ing on January 1, 1996, set forth periodic milestones for

site development, and impose various penalties and sur-

charges for noncompliance. The penalty that has raised the

most hackles is the “take title” provision: states that do not

8a

comply “shall take title to the waste, shall be obligated to

take possession of the waste, and shall be liable for all

damages directly or indirectly incurred . . . as a conse-

quence.” 42 U.S.C. § 202 1e(d) (2) (C).

New York has not joined a regional compact. Choosing

instead to “go it alone,” New York enacted legislation

effective July 26, 1986: (1) promulgating standards for site

selection; (2) creating a commission to select a site; and (3)

authorizing the construction of a LLRW disposal site. See

1986 N.Y. Laws Ch. 673. As of 1989, New York, in full

compliance with the 1985 federal amendments, has certi-

fied that it will be able to store, manage, or dispose of its

LLRW after January 1, 1993. See N.Y. Pub. Auth. Law

§ 1854-c (McKinney Supp. 1991). To date, New York’s

commission has designated five potential storage sites in

New York, three in Allegany County, two in Cortland

County.

In February 1990, the State of New York, joined by the

Counties of Allegany and Cortland, brought an action in

the United States District Court for the Northern District of

New York seeking to declare the 1985 Amendments

unconstitutional. They claim that the 1985 Amendments

violate the Tenth! and Eleventh? Amendments, as weil as

the due process clause of the Fifth Amendment} and the

'The Tenth Amendment provides:

The powers not delegated to the United States by the Con-

stitution, nor prohibited by it to the States, are reserved to the

States respectively, or to the people.

U.S. Const. amend. X.

The Eleventh Amendment provides:

The Judicial power of the United States shall not be con-

strued to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of

another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI.

3The due process clause of the Fifth Amendment provides that no

person shall:

be deprived of life, liberty, or property, without due process of

law;

U.S. Const. amend. V

9a

guaranty clause of article IV of the United States Constitu-

tion.4 The States of Washington, Nevada and South Caro-

lina, intervening by right, Fed. R. Civ. P. 24(a), joined the

federal defendants to uphold the 1985 Amendments. A

legion of utility companies, medical groups, and the like

also sought to intervene. Their motions were denied,

although they were permitted to file a brief as amici curiae

in support of the intervenors and the federal defendants.

All parties moved or cross-moved for summary judg-

ment. Fed. R. Civ. P. 56(c). In addition, the intervenors

joined in defendants’ motion to dismiss the complaint. Fed.

R. Civ. P. 12(b)(6). After oral argument, the district court

read into the record a decision dismissing the complaint.

New York v. United States, 757 F. Supp. 10 (N.D.N-Y.

1990).° The district court held that the 1985 Amendments

4The guarantee clause provides:

The United States shall guarantee to every State in this

Union a Republican Form of Government, and shall protect

each of them against Invasion; and on Application of the Legis-

lature, or of the Executive (when the Legislature cannot be

convened) against domestic Violence.

U_S. Const. art. IV, § 4.

5In its written opinion, the district court noted, “|a]t this juncture

all parties have moved for summary judgment, and thcre appear to be

no issues of material fact, and the case therefore appears ready for

summary treatment by the Court.” 757 F. Supp. at 11. The court,

however, went on to grant the government's motion to dismiss the

complaint. /d. at 13; see Fed. R. Civ. P. 12(b)(6). It is uncontested that

the district court considered documentary evidence and affidavits.

Accordingly, we treat the appeal as one from the grant of summary

judgment. Grand Union Co. v. Cord Meyer Dev. Corp., 735 F.2d 714,

717 (2d Cir. 1984). In reviewing de nevo and considering the record in

the light most favorable to appellants, we nonetheless fully agree with

the court below that there exists no genuine issue of material fact.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87

(1986), Delaware & Hudson Ry. v. Consolidated Rail Corp., 902 F.2d

174, 177-78 (2d Cir. 1990), cert. denied, 111 S. Ct. 2041 (1991). That

said, we review whether the law was correctly applied. National Union

Fire Ins. Co. v. Turtur, 892 F.2d 199, 203 (2d Cir. 1989); City of Yonkers

v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir. 1988) (citing 10 C.

Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2716,

at 654 (2d ed 1983))

10a

did not violate the Tenth and Eleventh Amendments, and

similarly dismissed plaintiffs’ claims under the guaranty

clause (and, implicitly, the due process clause), finding such

claims “inextricably intertwined with the position just

made in this decision, and those claims are accordingly

dismissed.” /d. at 13.

Plaintiffs appeal, reiterating the claim that the 1985

Amendments trench upon state sovereign immunity, but

they do not press a due process claim on appeal. See gener-

ally South Carolina v. Katzenbach, 383 U.S. 301, 323-24

(1966) (states are not “persons” within the meaning of the

due process clause and, thus, are not protected by it); Ala-

bama v. EPA, 871 F.2d 1548, 1554 (11th Cir.) (state which

has toxic waste disposal site has no Fifth Amendment duc

process right and, therefore, cannot allege defective notice

by the EPA), cert. denied, 110 S. Ct. 538 (1989).

DISCUSSION

More than a decade ago, the Supreme Court declared

that “[nJuclear energy may some day be a cheap, safe

source of power or it may not. But Congress has made a

choice to at least try nucicar energy, establishing a reason-

able review process in which courts are to play only a

limited role.” Vermont Yankee Nuclear Power Corp. v. Natu-

ral Resources Defense Council, Inc., 435 U.S. 519, 557-58

(1978). Thus, appellants undertake an unusually burden-

some task to persuade us that federal disposal site control

legislation impinges impermissibly upon state sovereignty.

Indeed, one circuit court has already said, “that the | Atomic

Energy] Act violates the Tenth Amendment has little basis

for support. Congress, through its power to regulate inter-

state commerce and provide for the national defense and

general welfare, clearly can enact legislation governing the

use of nuclear energy.” Simmons v. Arkansas Power & Light

Co., 655 F.2d 131, 135 (8th Cir. 1981). We are called upon

lla

to review the 1985 Amendments to that same Atomic

Energy Act; the amendments are designed to ensure state

compliance with a plan for safe LLRW disposal.

The 1985 Amendments declare that, in addition to cer-

tain classes of nuclear waste generated by the federal gov-

ernment,

Each State shall be responsible for providing, either

by itself or in cooperation with other States, for the

disposal of

(A) low-level radioactive waste generated within

the State (other than by the Federal Government)

that consists of or contains class A, B, or C radioac-

tive waste as defined by section 61.55 of title 10,

Code of Federal Regulations, as in effect on January

26, 1983.

42 U.S.C. § 2021 c(a)(1). Ifa state fails to properly dispose

of LLRW, certain penalties ensue:

If a State (or, where applicable, a compact region) in

which low-level radioactive waste is generated is

unable to provide for the disposal of all such waste

generated within such State or compact region by

January 1, 1996, each State in which such waste is

generated, upon the request of the generator or

owner of the waste, shall take title to the waste, be

obligated to take possession of the waste, and shall

be liable for all damages directly or indirectly

incurred by such generator or owner as a conse-

quence of the failure of the State to take possession

of the waste as soon after January 1, 1996, as the

generator or owner notifies the State that the waste

is available for shipment.

42 U.S.C. § 202 1e(d 2 xC).

l2a

It is this penalty provision that triggers the most vigorous

constitutional challenges.

Appellants’ first contention is that the 1985 Amendments

violate the Tenth Amendment. Tenth Amendment analysis

must now begin with Garcia v. San Antonio Metro. Transit

Auth. 469 U.S. 528 (1985), where the Supreme Court

instructed us that “[s]tate sovereign interests . . . are more

properly protected by procedural safeguards inherent in the

structure of the federal system than by judicially created

limitations on federal power.” 469 U.S. at 552 (overturning

National League of Cities v. Usery, 426 U.S. 833 (1979)). In

the intervening years, the Supreme Court has emphasized

that the judicial role in evaluating Tenth Amendment chal-

lenges is narrowly cabined. See South Carolina v. Baker,

485 U.S. 505, 512 (1988) (“Garcia holds that the limits are

structural, not substantive —ce., that States must find their

protection from congressional regulation through the

national political process, not through judicially defined

spheres of unregulable state activity.”); see also Massey,

State Sovereignty and the Tenth and Eleventh Amendments,

56 U. Chi. L. Rev. 61, 72 (1989) (“In Garcia, five justices

joined in a majority opinion that, in effect, concluded that if

States desire to preserve any aspect of their sovereignty

within the federal system they must look to Congress, and

not to the courts.”); The Supreme Court, 1987 Term—Lead-

ing Cases, 102 Harv. L. Rev. 143, 228 (1988) (Baker

“unequivocally repudiati[es] the suggestion that the tenth

amendment requires any substantive or qualitative analysis

of the national political process”).

It is self-evident that virtually every congressional exer-

cise of power under the commerce clause will limit state

power over that commerce and, to that extent, wiil invite

state objections under the Tenth Amendment. As the Garcia

Court observed:

l3a

The fundamental limitation that the constitutional

scheme imposes on the Commerce Clause to protect

the “States as States” is one of process rather than

one of result. Any substantive restraint on the exer-

cise of Commerce Clause powers must find its justi-

fication in the procedural nature of this basic limita-

tion, and it must be tailored to compensate for

possible failings in the national political process

rather than to dictate a “sacred province of state

autonomy.”

Garcia, 469 U.S. at 554. (quoting EEOC v. Wyoming, 460

U.S. 226, 236 (1983)). Other circuits, including ours, have

employed the Garcia analysis. See, e.g, Nevada v. Watkins,

914 F.2d 1545, 1556 (9th Cir. 1990), cert. denied, 111 S.

Ct. 1105 (1991); EEOC v. Vermont, 904 F.2d 794, 802 (2d

Cir. 1990) (noting that the “Garcia-Baker standard is a very

high one”). Quite simply, “[w]ith rare exceptions, . . . the

Constitution does not carve out express elements of state

sovereignty that Congress may not employ its delegated

powers to displace.” Garcia, 469 U.S. at 550.

Perusing the legislative history of the 1985 Amendments,

the conclusion is inescapable that, rather than discovering

defects in the political process, both the 1980 Act and its

1985 Amendments are paragons of legislative success, pro-

moting state and federal comity in a fashion rarely seen in

national politics. See Berkovitz, Waste Wars: Did Congress

“Nuke” State Sovereignty in the Low-Level Radioactive

Waste Policy Amendments Act of 1985?, 11 Harv. Envtl. L.

Rev. 437, 474 (1987) [hereinafter Waste Wars] (“Thie]

extensive state involvement [in the 1980 federal act and

1985 federal amendments] produced substantial benefits

for all the states, strongly suggesting that state sovereignty

received adequate protection.”). With both statutes, the

Congress acted only after robust debate and a clearly artic-

ulated acceptance of NGA and other state-based recom-

l4a

mendations. New York’s senior Senator, urging adoption of

the final version of the proposed amendments, proclaimed:

New Yorkers will continue to light some of their

lights with nuclear electricity—and their doctors

will continue to use life-saving laboratory tests that

depend on the use of radioactive materials. So will

the citizens of South Carolina—and they will be

able to watch New York, and the rest of the Nation,

make their own arrangements to dispose of their

own low-level radioactive wastes.

131 Cong. Rec. $38,423 (daily ed. Dec. 19, 1985) (state-

ment of Senator Moynihan).

Turning specifically to the penalty provision that New

York finds so offensive, we reject appellants’ allegation that

the “take title” provision, which they classify as a last-

minute amendment to the House bill added to placate Sen-

ate demands, is the product of a grievous defect in the

political process. They complain that this provision was not

subject to timely scrutiny and committee debate. There is

an irony in this grumbling when it is recalled that the

Senate Environment and Public Works Committee was the

author of the take title provision; it numbers among its

members Senator Moynihan of New York. See also Waste

Wars, 11 Harv. Envtl. L. Rev. at 458 (“The House nonethe-

less accepted the taking title provision by unanimous

vote.”). In any event, appellants misperccive the issue. “The

politica! process ensures that laws that unduly burden the

States will not be promulgated.” Garcia, 469 U.S. at 556.

See Watkins, 914 F.2d at 1556-57 (“{T]he tenth amend-

ment does not protect a State from being outvoted in Con-

gress... . Nor can Nevada complain that its lack of repre-

sentation on the Confer>nce Committee created a defect in

the political process.”); EEOC v. Vermont, 904 F.2d at 802

(“In any event, the absence of a given legislator or legisla-

lSa

tors, so long as the legislative body’s appropriate procedural

rules have been followed, does not mean that the national

process leading to the enactment of a given piece of legisla-

tion was flawed.”).

Appellants raise an alternative objection to the take title

provision. Noting that Garcia cited Coyle v. Smith, 221 U.S.

559 (1911), appellants argue that, even after Garcia, the

Tenth Amendment imposes some substantive limitations

upon federal power; and they conclude that the take title

provision falls within that forbidden zone. We are not per-

suaded.

In Coyle, the Congress sought to condition Oklahoma’s

admission into the Union upon Oklahoma’s agreement to

locate, at least initially, its capital in Guthrie and accept

certain limitations upon the State’s power to change its seat

of government. The Supreme Court found such conditions

to be a palpable violation of the Tenth Amendment. See

Coyle, 221 U.S. at 565 (that a state’s power to locate its

own seat of government “could now be shorn. . . by an act

of Congress would not be for a moment entertained”).

In testing the waters surrounding Garcia’s laconic refer-

ence to Coyle, the district court perceptively noted that the

Supreme Court’s central concern in Coyle was “equality in

dignity and power” among the several states, 221 U.S. at

568, a concern clearly not at issue here where the motivat-

ing engine of both the 1980 Act and 1985 Amendments is

identical treatment for all states.

It should also be noted that formal transfer of title to

nuclear waste, although usually effected by contract, is not

uncommon. See General Elec. Uranium Management Corp.

v. United States Dep’t of Energy, 764 F.2d 896, 898 (D.C.

Cir. 1985) (Secretary authorized to contract with persons

who generate or hold title to nuclear waste, for the transfer

of title to the Department of Energy); Commonwealth Edi-

son Co. v. Allied-General Nuclear Servs., 731 F. Supp. 850,

856 (N.D. Ill. 1990) (contingency clause in contract

l6a

between private nuclear generator and private nuclear

reprocessing plant requiring the latter, upon noncom-

pliance, to accept title to nuclear waste).

In sum, we are satisfied that the take title provision does

not undermine the constitutional structure. Neithcr does it

violate principles of federalism as recently explained in

Garcia; and “[wJhere, as here, the national political precess

did not operate in a defective manner, the Tenth Amend-

ment is not implicated.” Baker, 485 U.S. at 513 (emphasis

in original); see generally International Assoc. of Firefight-

ers, Local 2203 v. West Adams County Fire Protection Dist.,

877 F.2d 814, 821 (10th Cir. 1989) (absent agreement

between state agency and employees, the Fair Labor Stand-

ards Act does not violate the Tenth Amendment by compel-

ling state to compensate employees with overtime pay

rather then compensatory time); Metropolitan Transp. Auth.

v. ICC, 792 F.2d 287, 298 (2d Cir.) (Rail Passenger Service

Act, requiring the MTA to “permit the operation of

Amtrack trains over its lines” does not violate the Tenth

Amendment under Garcia or conscript the state to act in a

way that unconstitutionally promotes a federal policy), cert.

denied, 479 U.S. 1017 (1986).

Appellants, most notably Allegany County, strive to offer

alternative grounds for declaring the 1985 Amendments

unconstitutional. We are satisfied, however, that the 1985

Amendments do not violate the Eleventh Amendment.

Pennsylvania v. Union Gas Co., 491 U.S. 1, 14 (1989)

(plurality opinion reasoning “that Congress’ authority to

regulate commerce includes the authority directly to abro-

gate States’ immunity from suit”); see id. at 57 (White, J.,

concurring) (agreeing “with the conclusion . . . that Con-

gress has the authority under Article I to abrogate the

Eleventh Amendment immunity of the States”); see also

National Foods, Inc. v. Rubin, No. 91-7084 slip op. 5039,

5043 (2d Cir. June 12, 1991) (“The Eleventh Amendment

has been interpreted to render states absolutely immune

ha eel

17a

from suit in federal court unless they have consented to be

sued in that forum or unless Congress has overridden that

immunity by statute.”); Russell v. Dunston, 896 F.2d 664,

667 (2d Cir.) (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 456

(1976)), cert. denied, 111 S. Ct. 50 (1990). Similarly, we

agree with the district court that appellants’ argument,

anchored in the guarantee clause of article IV, that there is a

deprivation of a republican form of government, is analyti-

cally indistinct from the arguments supporting sovereign

immunity under the Tenth Amendment. See Baker, 485 U.S.

at 511 n.5 (“We use ‘the Tenth Amendment’ to encompass

any implied constitutional limitation on Congress’ author-

ity to regulate state activities, whether grounded in the

Tenth Amendment itself or in principles of federalism

derived generally from the Constitution.”).

CONCLUSION

We have considered appellants’ remaining arguments,

but find them without merit. We conclude, therefore, that

the 1985 Amendments pass constitutional muster. Accord-

ingly, we affirm.

18a

Opinion of the United States District Court for the

Northern District of New York, Dated December 7, 1990

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

STATE OF NEW YoOrK, ef al,

Plaintiff,

against

UNITED STATES OF AMERICA,

Defendant.

90-CV-162

as

APPEARANCES:

ROBERT ABRAMS, ATTORNEY GENERAL

STATE OF NEW YORK

Attorney for Plaintiff

Department of Law

The Capitol

Albany, New York 12224

OF COUNSEL:

Donald P. Berens, Jr., Esq.

Assistant Attorney General

19a

HARTER, SECREST & EMERY, ESQS.

Attorneys for County of Allegany

700 Midtown Tower

Rochester, New York 14604

OF COUNSEL:

Edward Premo, II, Esq.

BERLE, KASS & CASE, ESQS.

Attorneys for County of Cortland

45 Rockefeller Plaza

New York, New York 10111

OF COUNSEL:

Deborah Goldberg, Esq.

PATRICK M. SNYDER, PE.

Attorney for County of Cortland

One North Main Street

Cortland, New York 13045

OF COUNSEL:

Patrick M. Snyder, Esq.

U.S. DEPARTMENT OF JUSTICE

ENVIRONMENTAL & NATURAL RESOURCES

DIVISION

Attorneys for U.S.A.

Pennsylvania Avenue N.W. Room 2137

Washington, D.C. 29530

OF COUNSEL:

Louis Milkman, Esq.

Martin Malsch, Esq.

20a

KENNETH O. EIKENBERRY, ATTORNEY GENERAL

STATE OF WASHINGTON

Attorney for States of Washington

and Nevada

Mail Stop QA-44

Olympia, Washington 98504

OF COUNSEL:

Allen T. Miller, Esq.

T. TRAVIS MEDLOCK, ATTORNEY GENERAL

STATE OF SOUTH CAROLINA

Attorney for State of South Carolina

P.O. Box 11549

Columbia, South Carolina 29211

OF COUNSEL:

James P. Hudson, Esq.

DEPARTMENT OF HEALTH & ENVIRONMENTAL

CONTROL

State of South Carolina

Office of General Counsel

2600 Bull Street

Columbia, South Carolina 29201

OF COUNSEL:

Carlisle Roberts, Jr., Esq.

December 7, 1990

CON. G. CHOLAKIS, D.J.*

It is my intention at this time to read a decision into the

record. | know that it may seem very unusual that a deci-

sion will be read into the record on a matter that is as

_ *The transcript of this opinion, delivered from the bench, has been

edited for grammatical construction, organization of quotations, and

augmentation of citations.

2la

complex and involved as this case obviously is. | do not

want any of the participants to think that their positions

have not been given due weight. We have spent an extraor-

dinary amount of time on this one case in the past two

weeks. As a matter of fact, I dare say we have spent as

much time on this single case as we have spent on any other

three or four cases combined during the iast three or four

years.

I do think, however, that in fairness to all the participants

that a decision be made as quickly as possible so those

parties involved can make a determination as to their future

course of action. And I do not feel that just letting this

matter sit for any length of time wili do justice to the parties

or to the Act itself. I have listened to all of the arguments

presented by all of the attorneys, and | think I have given

you relatively free reign because I was waiting to see if

anyone could say anything that would change the feeling

that the Court had about this subject after reading all of the

papers, and as you know, the papers were voluminous. As a

matter of fact, if I could sell them by the pound, I think I'd

be in very good shape.

The plaintiffs State of New York and the Counties of

Allegheny and Cortland challenge the constitutionality of

the Low Level Radioactive Waste Policy Act Amendments

of 1985, 42 U.S. Code Sections 2021 et seq, on the grounds

that the Act violates the Tenth and Eleventh Amendments

as well as the Guaranty Clause and Due Process Clause of

the United States Constitution.

Before the Court are numerous motions and cross-

motions. At this juncture all parties have moved for sum-

mary judgment, and there appear to be no issues of material

fact, and the case therefore appears ready for summary

treatment by the Court. )

The United States in its motions to dismiss and for sum-

mary judgment relies principally on the Supreme Court

case of Garcia v. San Antonio Metropolitan Transit Author-

22a

ity, 469 U.S. 528 (1985). This case calls into question the

judiciary’s ability and authority to consider challenges to

Congressional power over the States. Garcia overturned

National League of Cities v. Usury, 426 U.S. 833 (1976), in

which the Supreme Court proclaimed that the Tenth

Amendment limited Congressional power to legislate under

the Commerce Clause. The Court concluded in National

League that the Tenth Amendment sheltered “the states’

freedom to structure integral operations in areas of tradi-

tional governmental functions”. Accordingly, Congress

could not displace the states’ freedom by regulating “the

states as states” and limiting the attributes of state sover-

eignty. Id. at 552-554

In Garcia, a sharply divided Court rejected National

League, concluding:

In short, the framers chose to rely on a federal

system in which special restraints on federal power

over the states inhered principally in the workings of

national government itself rather than in the discrete

limitations on the objects of federal authority. State

sovereign interests, then are more properly protected

by procedural safeguards inherent in the structure of

the federal system than by judicially created limita-

tions on federal power.

Garcia, 469 U.S. at 552.

The Court in Garcia ruled that judicial review of Con-

gressional enactments founded on Commerce Clause

powers should be limited primarily to an inquiry of whether

the political process has failed. The Court did, however,

indicate that some additional limits might exist on Con-

gressional action based on “the constitutional structure”.

The Garcia court, however, did not define or identify these

limits apart from citing without discussion the 1911

Supreme Court case of Coyle v. Oklahoma, 211 U.S. 559.

23a

The citing of the Coyle case is significant. The Coyle case

struck down a Congressional enactment which conditioned

the statehood of Oklahoma on the placement of the state

capital at a certain location. The Court acknowledged at

page 565 of that opinion that “the power to locate its own

seat of government was essentially and peculiarly [a] state

power”. The holding in Coyle, however, is clearly based on

the finding that Oklahoma was being forced to do some-

thing which no other state was being forced to do; that

being to locate her capital according to the wishes of

Congress.

The Coyle Court stated in the last paragraph of its opin-

ion on page 58 the following:

The constitutional equality of the states is essential

to the harmonious operation of the scheme upon

which the Republic was organized. When that

equality disappears, we may remain a free people,

but the Union will not be the Union of the

Constitution.

Therefore, this Court reads Garcia as allowing judicial

interdiction of federal powers over the states in the follow-

ing areas: One, when that power is the result of a defect in

the political process, and two, possibly when constitutional

equality among the states has been jeopardized.

Garcia and the 1988 Supreme Court decision South Car-

olina v. Baker, 485 U.S. 505 (1988), foreclose, in this

Court’s view, judicial review of any Congressional action

over the states which is validly enacted and equally applied

to all states. Any review of the substantive merits of such an

action apart from an inquiry into the “constitutional equal-

ity” of the action would require a judicially determined

definition of the contours of state sovereignty. This Court is

barred by Garcia from making such a definition.

24a

The United States argues that there was no defect in the

political process in the passage of the Act and that no other

judicial challenge may be made pursuant to Garcia. Plain-

tiff Cortland County argues that several political process

defects exist which should invalidate the law.

First, Cortland County argues that a lack of political

accountability of Congress as regards this Act is a signal

that the political process has failed. Cortland’s argument is

that Congress has passed a law which puts burdens on the

states to pass certain unpopular laws. The political “heat”

as well as the fiscal burden are then absorbed by the states

rather than by Congress, the truly responsible party. Cort-

land also presents a second political defect theory in which

the Congress is portrayed as being controlled by political

action committees who have neutralized states’ interests

and influence.

Taking Cortland’s second argument first, it is clear that

the pervasiveness of political action committees in Con-

gress is not the type of systemic breakdown envisioned by

the Garcia court. This argument is really nothing less than

an indictment of how the political system works. Accord-

ing to Garcia, the proper remedy is not judicial intervention

but the rejection by voters of those representatives who are

beholden to the special interest groups. The “built-in

restraints that our system provides” will presumably correct

this perceived problem. Therefore, Cortland’s position is, in

this Court’s view, without merit.

Cortland’s argument concerning political accountability

is similarly lacking in legal foundation. In the South Caro-

lina v Baker case, the Supreme Court declined to define

what was meant by “political defects” but did characterize

the terms as referred to “extraordinary defects in the

national political process”. Baker, 485 U.S. at 515. The

Court in its discussion cited to a footnote contained in the

1938 Supreme Court case of United States v Carolene Pro-

ducts, 304 U.S. 144, 152 n. 4.

25a

The Court interprets this authority as meaning that the

“political process tests” referred to problems which may

have had an untoward effect on a particular law’s enact-

ment or its subsequent political review. If the law is validly

enacted, it may not thereafter be judicially challenged on

political process grounds unless the effect of the law

restricts a state from continuing meaningful political par-

ticipation, where a state is foreclosed from challenging the

law politically. In other words, the political process

rationale for judicial intervention only arises when the leg-

islative/political avenue has been functionally closed.

Such is not the case here. Nothing in the Act restricts

New York’s, or any other state’s, ability to operate in the

political arena and to challenge the law. This is not, in this

Court’s view, the type of political breakdown or type of

extraordinary situation the Supreme Court envisioned as

requiring judicial intervention. Therefore, this Court rejects

any challenge to the Act based on the so-called “political

process defect” test.

New York State argues that Garcia left open another path

of attack other than the political process test. The State,

joined by the other plaintiffs, argues that the Court still has

the power to rule that particular laws destroy state

sovereignty.

As just explained, this Court does not see how such an

argument may be sustained and be consistent with Garcia.

Plaintiffs do not allege that New York State is being

treated inequitably with other States. The State’s argument,

reduced to its essence, would require this Court to dictate a

sacred province of state autonomy, and this, in this Court’s

judgment, would violate the Garcia holding. In this Court’s

view, any claims under the Guaranty Clause are inextrica-

bly intertwined with the position just made in this decision,

and those claims are accordingly dismissed.

The claims under the Eleventh Amendment are likewise

dismissed pursuant to the Supreme Court holding in Penn-

sylvania v Union Gas, 491 U.S. 1 (1989).

26a

This Court is aware that the Garcia case was decided by

a divided court, that the make-up of the Court has since

changed, and that the Garcia doctrines may not survive. In

fact, it may well be this case which results in Garcia being

overturned. While this Court has problems with the Garcia

holding, it is nonetheless constrained by the precedents

which it reads as residing therein.

The defendant United States’ motion to dismiss the com-

plaint is therefore granted in all respects. I believe I have an

appropriate order which will be signed and in all proba-

bility will be filed today. Thank you ladies and gentlemen.

27a

Judgment of the United States District Court for the

Northern District of New York, dated December 26,

1990.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

THE STATE OF NEW YORK; THE COUNTY OF ALLEGANY,

NEW YORK; and THE COUNTY OF CORTLAND, NEW

YORK

VS.

THE UNITED STATES OF AMERICA; WATKINS, JAMES D., as

Secretary of Energy; CARR, KENNETH M., as Chairman

of the U.S. Nuclear Regulatory Commission; THE U.S.

NUCLEAR REGULATORY COMMISSION; SKINNER, SAMUEL

K., as Secretary of Transportation; and THORNBURGH,

RICHARD, as U.S. Attorney General, et al

Case Number: 90-CV-162.

Decision by Court. This action came to trial or hearing

before the Court. The issues have been tried or heard and a

decision has been rendered.

28a

IT Is ORDERED AND ADJUDGED

That Defendants’ Motion to Dismiss is Granted and all

claims against Defendants are dismissed with prejudice.

Dated: December 26, 1990

GEORGE A. RAY

Clerk

MARY ANN FRANCISCO

(By) Deputy Clerk