# Petition for Writ of Certiorari — New York v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0191%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 505 U.S. 144 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0191%3A02. Public record. Not legal advice.