Petition for Writ of Certiorari — County of Allegany, New York v. United States (Nos. 91-558, 91-543, 91-563)

91-558 " i} FILED

OCT 3 199)

No. - _DEFiGE OF THE CLE

In The

Supreme Court of the United States

October Term, 1991

THE COUNTY OF ALLEGANY, New York,

Petitioner,

VS.

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 COMMIS-

SION; SAMUEL K. SKINNER, as Secretary of Transporta-

tion; and WILLIAM P. BARR, as Acting United States Attor-

ney General,

Respondents,

STATE OF WASNINGTON, STATE OF NEVADA, and STATE

OF SOUTH CAROLINA,

Intervenors-Respondents.

PETITION OF THE COUNTY OF ALLEGANY

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

HARTER, SECREST & EMERY

Attorneys for Petitioner

700 Midtown Tower

Rochester, New York 14604

Telephone: (716) 232-6500

Edward F. Premo, II, Esq.

Counsel of Record

Paul D. Sylvestri, Esq.

Rochester New York (17770)

QUESTIONS PRESENTED FOR REVIEW

1. Does the Commerce Clause, Article I, §8, cl. 3, empower

the national government to compe! the States to exercise their re-

served sovereign powers to implement a federal policy?

2. Does the Guarantee Clause, Article IV, §4, restrict the na-

tional government from compelling the States to exercise their re-

served sovereign powers to implement a federal policy?

il

PARTIES

The parties to the proceeding below were:

1. 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 Nuclear

Regulatory Commission, Defendant;

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

fendant;

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

Defendant;’

9. The State of Washington, Intervenor;

10. The State of Nevada, Intervenor; and

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 Su-

preme Court Rule 35.3.

il

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW..........

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CONSTITUTIONAL PROVISIONS, STATUTES AND

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Basis For Federal Jurisdiction Of The District Court .

REASONS FOR GRANTING THE PETITION.......

A. The Nationa! Government is Not Empowered to

Order the States to Exercise Their Reserved Sover-

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B. The Act Violates the Guarantee of a ““Republican

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15

iv

TABLE OF AUTHORITIES

Page

Cases

Brown v. Environmental Protection Agency, 521 F.2d

827 (9th Cir. 1975), vacated and remanded for consid-

eration of mootness, 431 U.S. 99 (1977) .........55. 12, 13

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

1975), vacated and remanded for consideration of

mes, GHG TE GO OHEED cb ccdcccaccesccvesces 12, 13

Environmental Protection Agency v. Brown, 431 U.S. 99

Ecc ccccanaseeetedanasseenekshpvecaesennes 12, 13

Federal Energy Regulatory Commission v. Mississipp1,

SSS CUED kha caecdeavecacedees 9, 10, 11, 14, 17, 18

Fry v. United States, 421 U.S. 542 (1975). .........-4-. 11

Garcia v. San Antonio Metropolitan Transit Authority,

IS 64. 0bc6ncudodcccusecneunsneent 7, 11,14

Gregory v. Ashcroft, 111 S. Ct. 2395 (1991) .......... 9,15, 16

Hodel v. Virginia Surface Mining and Reclamation Asso-

ciate, Bue.. GEE UB. BOP UEOEE cc cecccvccucencecs 14

Marbury v. Madison, § U.S. (1 Cranch) 137 (1803) ..... 14

Maryland v. Environmental Protection Agency, 530 F.2d

215 (4th Cir. 1975), vacated and remanded for consid-

eration of mootness, 431 U.S. 99 (1977). ........45. 12, 13, 18

Maryland v. Wirtz, 392 U.S. 183 (1968)............... 11,14

Page

Nevada v. Skinner, 884 F.2d 445 (9th Cir. 1989), cert. de-

OU, Doers Ges SOT 6 ons ovcees dccecsiduies 1]

Pennsylvania v. Environmental Protection Agency, 500

PE WINS iii FaGec coved eds ecsnauder, 13n.2

South Carolina v. Baker, 485 U.S. 505 (1988).......... 11,14

South Dakota v. Adams, 506 F. Supp. 50(D.S.D.), aff'd,

635 F.2d 698 (8th Cir. 1980), cert. denied, 451 U.S. 984

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United States Constitution

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Federal Statutes

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42 U.S.C. §2021e(dM(2M(C) . 2 cece eee cece ee eees

Other

Merritt,

“The Guarantee Clause and State Autonomy:

Federalism for a Third Century” 88 Colum. L. Rev. |

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L. Tribe, American Constitutional Law, §5-23 (2d ed.

17

17

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Sec-

ond Circuit (reproduced at Appendix A-1) (hereinafter “‘A.’”’), is-

sued on August 8, 1991, is reported at _ F.2d (2d Cir. 1991)

(Westlaw 1991 WL 150660).

The opinion of the United States District Court for the North-

ern District of New York (reproduced at A. 17) is reported at 757

F. Supp. 10 (N.D.N.Y. 1990).

JURISDICTION

The judgment of the Court of Appeals was dated and entered

on August 8, 1991. (A. 1). Jurisdiction to review the judgment of

the Court of Appeals is conferred to this Court by 28 U.S.C.

§1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS

The following constitutional provisions, statutes and regula-

tions are involved in this Petition.

The Commerce Clause, United States Constitution, Article |

38, cl. 3, which provides:

The Congress shall have the Power ...

To regulate Commerce with foreign Nations, and among

the several States, and with the Indian Tribes.

The Guarantee Clause of the United States Constitution, Ar-

ticle [V, §4, which provides:

The United States shall guarantee to every State in this Un-

ion a Republican Form of Government, and shall protect

each of them against Invasion; and on Application of the

Legislature, or of the Executive (when the Legislature can-

not be convened) against domestic Violence.

The Tenth Amendment to the United States Constitution

which provides:

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

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

States respectively, or to the people.

The Low-Level Radioactive Waste Policy Amendments Act of

1985 which provides in relevant parts:

(a)(1) 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 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 subpara-

graph (A) that is generated by the Federal Government ex-

cept such waste that is —

(i) owned or generated by the Department of Energy;

(ii) owned or generated by the United States Navy as a

result of the decommissioning of vessels of the United

States Navy; or

(iii) owned or generated as a result of any research, de-

velopment, testing, or production of any atomic weapon,

and

(C) low-level radioactive waste described in subpara-

graphs (A) and (B) that is generated outside of the State and

accepted for disposal in accordance with sections 2021e or

2021f of this title.

42 U.S.C. §2021c(a)(1).

eee

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 gen-

erator 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 gener-

ator Or Owner as a consequence 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. §2021e(d)(2)(C).

STATEMENT OF THE CASE

Introduction

This case presents two related issues of fundamental impor-

tance to the structure of the federal system of the United States

which have never been reviewed by this Court.

The first issue is whether the national government is empow-

ered by the Commerce Clause to compel the States to exercise

their reserved sovereign powers to carry out a federal policy. The

Low-Level Radioactive Waste Policy Amendments Act of 1985,

42 U.S.C. §2021b et seq. (the “Act”’) mandates that each State is

“responsible” for the disposal of low-level radioactive waste gen-

erated within the State. While the States have three options as to

how to carry out this responsibility, each option requires action

by State officials and/or expenditure of State funds. The Court

of Appeals held that the Act’s mandate was within the power of

Congress pursuant to the Commerce Clause and that the federal

courts essentially have no role in preserving State sovereignty in

the federal system.

J

Second, this action presents for the first time the issue of the

applicability of the Guarantee Clause, Article IV, §4 to a Con-

gressional mandate pursuant to the Commerce Clause. The Act

requires the officials of each State to comply with a mandate by

the national government regardless of the wishes of the people of

each State. The Act’s mandate violates the guarantee of a Repub-

lican Form of Government for the States contained in the United

States Constitution. The Court of Appeals implicitly held, how-

ever, that the Guarantee Clause did not provide any protection of

State sovereignty.

These two issues go to the essence of the relationship between

the States, the people of the States and the national government.

The resolution of these issues will determine whether the States

will remain sovereign governments answerable to the people of

each State. The use by the national government of schemes com-

prised of mandates and sanctions threatens to relegate the States

to the status of mere departments of an all encompassing na-

tional government. These fundamental issues affecting the basic

structure of the Nation should be settled by this Court.

How The Case Arose

The Act provides that each State is “responsible” for disposal

of low-level radioactive waste generated in the State. 42 U.S.C.

§2021c(a)(1). A State’s responsibility is not conditioned on any

actions by the State, and there is nothing the State can do to avoid

this responsibility.

The States can meet their responsibility in only three ways. A

State can either (a) alone, or with other States in a compact, de-

velop a low-level radioactive waste disposal facility (42 U.S.C.

§§2021c and 2021d); or, (b) take title and possession of the low-

level radioactive waste generated in the State (42 U.S.C.

§2021e[d][2][C]); or, (c) become liable to the generators of such

waste for all damages caused by the failure of the State to take

title and possession of the waste. (42 U.S.C. §2021e[d][2][C)).

Under any of these options, the State is required to exercise its

sovereign powers to meet a federally mandated obligation. The

Respondents have previously argued that such a mandate is au-

thorized by the Commerce Clause of the United States Constitu-

tion, Article I, §8, cl. 3.

In response to the mandatory provisions of the Act, the State

of New York has enacted various laws and formed a commission

to find a site for a low-level radioactive waste disposal facility. The

State action in this regard has been the result of the coercive nat-

ure of the Act. (A. 37-40) (Affidavit of Clarence D. Rappleyea,

Jr., sworn to on September 5, 1990, 446-13). In September, 1989,

the New York State Low-Level Radioactive Waste Disposal Siting

Commission (the “Commission”) designated three potential

sites of approximately one mile square in size for a low-level ra-

dioactive waste disposal site in the Allegany County Towns of

Caneadea, West Almond and Allen. (A. 29, 30) (Affidavit of De-

lores Cross, sworn to on September 5, 1990, [“‘Cross Aff.”], 44).

These three sites were selected from a candidate area previously

identified by the Commission. /d.

Thereafter, the Board of Legislators of the County of Allegany

enacted various resolutions opposing the selection of the County

as a potential location for a low-level radioactive waste disposal

facility and indicated the County’s “irrevocable” opposition to

the disposal facility. (A. 30) (Cross Aff. 45).

Nevertheless, the County has been forced by the terms of the

Act and resulting actions by the State of New York to act as

“agents” to carry out the policy of the Act. The Sheriff for Alle-

gany County has been forced to serve civil process and to accom-

pany members of the Commission staff on various attempted vis-

its to potential sites. Allegany County facilities such as the

county jail, county courthouse and other buildings have been

used for the purpose of holding citizens who have been charged

with impeding the actions of the Commission. The Allegany

County District Attorney and his staff have been forced to be-

come involved in criminal prosecutions of citizens who allegedly

illegally impeded the siting process. At various times the State of

New York has indicated that the County may have to invoke the

“mutual aid” system of police protection. When such “mutual

aid” is requested, the County becomes financially liable for the

services provided. Innumerable hours have been spent by County

officials in setting up procedures to attempt to avoid violence

during the siting process. (A. 31) (Cross Aff. 448, 9).

All these actions and expenditures of funds have been occa-

sioned by the Act and the resulting State government reaction

and are against the wishes of the citizens of Allegany County. The

various officials of Allegany County, against their will and

against the will of their constituents, have been forced to carry

out the Congressional mandate with respect to low-leve! radioac-

tive waste. (A. 31) (Cross Aff. 410).

Proceedings Below

This action was brought by the State of New York, the County

of Allegany and the County of Cortland to obtain a declaratory

judgment that the Act is null and void as violative of the United

States Constitution. The federal defendants moved to dismiss the

action for failure to state a claim. Thereafter, the District Court

permitted a number of private generators of low-level radioactive

waste to appear as an amicus curiae in this action.

Subsequently, the States of Washington, Nevada and South

Carolina intervened as parties in this action and appeared in sup-

port of the constitutionality of the Act. These three States consti-

tute the only States in the Union that currently have operating

commercial low-level radioactive waste disposal sites. The inter-

venors thereafter also moved to dismiss the action.

The plaintiffs opposed both motions to dismiss. The State of

New York and the County of Allegany also made a cross-motion

for summary judgment. The defendants and the interveners also

moved for summary judgment.

On December 7, 1990, the District Court heard oral argument

on all motions and issued its decision. The District Court ruled

that Garcia v. San Antonio Metropolitan Transit Authority, 469

U.S. 528 (1985), was dispositive of the case and barred any judi-

cial intervention to declare the Act unconstitutional. (A. 21). The

District Court granted the defendants’ and interveners’ motion

to dismiss the action, and judgment was thereafter entered on

December 26, 1990. (A. 26, 27). On January 30, 1991, the State

of New York, the County of Allegany, and the County of Cor-

tland filed timely notices of appeal. The appeals were consoli-

dated for hearing and determination by the Court of Appeals.

The appeals were argued before the United States Court of Ap-

peals for the Second Circuit on May 21, 1991. On August 8, 1991,

the Court of Appeals affirmed the decision of the District Court.

The Court of Appeals agreed with the District Court that Garcia

was dispositive and barred any judicial intervention. (A. 11, 15).

Basis For Federal Jurisdiction Of The District Court

The District Court had jurisdiction of this action under 28

U.S.C. §1331, 28 U.S.C. §1337, 28 U.S.C. §1346, and 28 U.S.C.

§2201.

REASONS FOR GRANTING THE PETITION

A. THE NATIONAL GOVERNMENT IS NOT EMPOW-

ERED TO ORDER THE STATES TO EXERCISE THEIR RE-

SERVED SOVEREIGN POWERS.

The key issue in this action is whether the national government

pursuant to the Commerce Clause is empowered to order the

States to exercise their sovereign powers to carry out a federal

policy. The ability to issue such orders would render the States,

their officials and their treasuries subject to the whim of the na-

tional government. No longer independent and autonomous

components of a federal system, States would become mere de-

partments of the national government. This is an issue of funda-

mental importance to the structure of the Nation which has never

been reviewed by this Court.

This Court has recently confirmed the separate and indepen-

dent existence of the States within the federai system.

As every schoolchild learns, our Constitution establishes

a system of dual sovereignty between the States and the Fed-

eral Government. This Court also has recognized this fun-

damental! principle. In Tafflin v. Levitt, 493 U.S. 455, 458,

110 S.Ct. 792, 795, 107 L.Ed.2d 887 (1990), “[w]e beg[a]n

with the axiom that, under our federal system, the States

possess sovereignty concurrent with that of the Federal

Government, subject only to limitations imposed by the Su-

premacy Clause.” Over a hundred years ago, the Court de-

scribed the constitutional scheme of dual sovereigns:

“ ‘(T]he people of each State compose a State, having its

own government, and endowed with all the functions essen-

tial to separate and independent existence, ... ‘{[WJithout

the States in union, there could be no such political body as

the United States’ Not only, therefore, can there be no loss

of separate and independent autonomy to the States,

through their union under the Constitution, but it may be

not unreasonably said that the preservation of the States,

and the maintenance of their governments, are as much

within the design and care of the Constitution as the preser-

vation of the Union and the maintenance of the National

government. The Constitution, in all its provisions, looks

to an indestructible Union, composed of indestructible

States.” Texas v. White, 7 Wall. 700, 725, 19 L.Ed. 227

(1869), quoting Lane County v. Oregon, 7 Wall. 71, 76, 19

L.Ed. 101 (1869).

The Constitution created a Federal Government of lim-

ited powers. “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.” U.S.

Const., Amdt. 10. The States thus retain subtantial sover-

eign authority under our constitutional system.

Gregory v. Ashcroft, 111 S. Ct. 2395, 2399 (1991).

This Court has also noted the vital importance of this federal

structure to the welfare of the people.

This federalist structure of joint sovereigns preserves to

the people numerous advantages. It assures a decentralized

government that will be more sensitive to the diverse needs

of a heterogenous society; it increases opportunity for citi-

zen 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. See generally McCon-

nell, Federalism: Evaluating the Founders’ Design, 54 U.

Chi. L. Rev. 1484, 1491-1511 (1987); Merritt, The Guaran-

tee Clause and State Autonomy: Federalism for a Third

Century, 88 Colum. L. Rev. 1, 3-10 (1988).

Id.

Schemes authorizing legislation similar to the Act were consid-

ered, and rejected, in the formation of the Constitution. As Jus-

tice O’Connor showed by an analysis of notes of the Constitu-

tional Convention in her dissenting opinion in Federa/ Energy

Regulatory Commission v. Mississippi, 456 U.S. 742, 791-796

10

(1982), the Founders rejected the notion that the national gov-

ernment could commandeer the machinery of the States’ govern-

ments to carry out its policy decisions. The Convention settled on

a federal system whereby the national government had the power

to enact legislation that could operate upon the people directly.

Id. Federal policy would not depend upon cooperation of the

State legislatures, as under the Articles of Confederation. /d.

The Convention also rejected a proposal authorizing the national

government to use “force” to compel a State to fulfill its duty

and a proposal giving the national legislature veto power over

State laws. /d.

Under the Articles of Confederation, the National Legisla-

ture operated through the States. The Framers could have

fortified the central government, while still maintaining the

same system, if they had increased Congress’ power to de-

mand obedience from state legislatures. In time, this

scheme might have relegated the States to mere departments

of the National Government, a status the Court appears to

endorse today. The Framers, however, eschewed this course,

choosing instead to allow Congress to pass laws directly af-

fecting individuals, and rejecting proposals that would have

given Congress military or legislative power over state gov-

ernments. In this way, the Framers established independent

state and national sovereigns. The National Government re-

ceived the power to enact its own laws and to enforce those

laws over conflicting state legislation. The States retained

the power to govern as sovereigns in fields that Congress

cannot or will not pre-empt. This product of the Constitu-

tional Convention, I believe, is fundamentally inconsistent

with a system in which either Congress or a state legislature

harnesses the legislative powers of the other sovereign.

Federal Energy Regulatory Commission v. Mississippi, 456 U.S.

742, 795-96 (1982) (footnotes omitted).

The majority rejected Justice O’Connor’s position that the act

in question was unconstitutional on the ground that the act did

not mandate an “imposition of general affirmative obligations”.

11

a

Id. at 769 n. 32. The majority did not voice any disagreement

with Justice O’Connor’s historical analysis.

Two provisions of the Constitution confirm the existence of

the States as separate sovereign governments. The Guarantee

Clause of the Constitution, Article IV, §4, provides: “The United

States shall guarantee to every State in this Union a Republican

Form of Government ....’ The Tenth Amendment to the Consti-

tution provides: “The powers not delegated to the United States

by the Constitution, nor prohibited by it to the States, are re-

served to the States respectively, or to the people.” The combined

import of these two provisions is that the States are to be separate

sovereign governments, with general powers, answerable not to

the national government but to the people of the States.

While recent decisions of this Court have rejected Tenth

Amendment claims by States attacking Congressional legisla-

tion, none of these recent decisions have addressed the issue of a

direct Congressional mandate to the States to exercise their sov-

ereign powers to carry out a federal policy. These decisions have

involved either regulation of State activity which affects inter-

state commerce or federal tax collection (e.g., Garcia v. San An-

tonio Metropolitan Transit Authority, 469 U.S. 528 [1985];

Maryland v. Wirtz, 392 U.S. 183 [1968]; South Carolina v. Baker,

485 U.S. 505 [1988] [taxes]; Fry v. United States, 421 U.S. 542

[1975]); the setting of conditions for state involvement in a feder-

ally preemptable field (e.2g., Federal Energy Regulatory Commis-

sion v. Mississippi, 456 U.S. 742 [1982]); or the conditional grant

of funds to the States (e.g., South Dakota v. Adams, 506 F. Supp.

50 [D.S.D.], aff'd, 635 F.2d 698 [8th Cir. 1980], cert. denied, 451

U.S. 984 [1981]; Nevada v. Skinner, 884 F.2d 445 [9th Cir. 1989],

cert. denied, 110S. Ct. 1112 [1990]).

Although it has never decided the constitutionality of a direct

Congressional mandate to the States, this Court once granted a

petition to review mandates to the States by an agency of the na-

12

tional government. See Environmental Protection Agency v.

Brown, 431 U.S. 99 (1977). This petition involved decisions by

three different United States Courts of Appeals holding that a

mandate by the national government to the States either to estab-

lish programs to carry out a federal policy or else suffer sanctions

was not authorized by the Commerce Clause and would violate

the plan of federalism set forth in the United States Constitution.

Those three cases, Maryland v. Environmental Protection

Agency, 530 F.2d 215 (4th Cir. 1975), District of Columbia v.

Train, 521 F.2d 971 (D.C. Cir. 1975), and Brown v. Environmen-

tal Protection Agency, 521 F.2d 827 (9th Cir. 1975), dealt with at-

tempts by the national government to implement the Clean Air

Act. Pursuant to the Clean Air Act, if an area of a State fails to

achieve compliance with air quality standards, the national gov-

ernment may step in and implement its own plan. Maryland v.

Environmental Protection Agency, 530 F.2d 215, 219 (4th Cir.

1975). In each of the cases, the States failed in their attempts to

achieve air quality standards, and the EPA attempted to imple-

ment its “plan” by ordering the States’ governments to take cer-

tain actions.

The three Courts of Appeals found that these “‘orders” raised

constitutional concerns and, therefore, interpreted the Clean Air

Act as not authorizing such orders. Maryland v. Environmental

Protection Agency, 530 F.2d 215, 225-28 (4th Cir. 1975); District

of Columbia v. Train, 521 F.2d 971, 994(D.C. Cir. 1975); Brown

v. Environmental Protection Agency, 521 F.2d 827, 837-42 (9th

Cir. 1975). While the national government could permissibly

bring in its own personnel and establish a program, it could not

seize the machinery of the State to carry out a federal action. The

United States Court of Appeals for the Fourth Circuit noted:

And, while it may be true that some, or even many, of the

attributes of state sovereignty have been diminished by the

exercise by Congress of the broad rights accorded the nation

13

under the commerce clause, it is equally true that if there is

any attribute of sovereignty left to the states it is the right of

their legislatures to pass, or not to pass, laws. As the Court

stated in Jn re Duncan, 139 U.S. 449, 11 S.Ct. 573, 35 L.Ed.

219 (1891):

“By the constitution, a republican form of government is

guaranteed to every state in the Union, and the distinguish-

ing feature of that form is the right of the people to choose

their own officers for governmental administration, and

pass their own laws in virtue of the legislative power reposed

in representative bodies ....” 139 U.S. 449, 461, 11 S.Ct.

$73, $77, 35 L.Ed. 219.

Not far afield is the rejection by the Philadelphia Conven-

tion of Charles Pinkney’s constitutional plan which would

have enabled Congress to “revise,” “negative,” or “annul”

the laws of a state. See Elliot’s Debates (Michie Ed., Vol. I,

Book I, pp. 149, 400-01).

If the national legislature may not revise, negative or an-

nul a law of a state legislature, how an Act of Congress may

be construed to permit an agency of the United Staes to di-

rect a state legislature to legislate is difficult to understand.

Maryland v. Environmental Protection Agency, 530 F.2d 215,

225 (4th Cir. 1975). Accord District of Columbia v. Train, 521

F.2d 971 (D.C. Cir. 1975); Brown v. Environmental Protection

Agency, 521 F.2d 827 (9th Cir. 1975).°

This Court granted certiorari in all three EPA cases but vacated

and remanded them for consideration of mootness when the

EPA rescinded the objectionable regulations. Environmental

Protection Agency v. Brown, 431 U.S. 99 (1977) (per curiam).

* Contra Pennsylvania v. Environmental Protection A gency, SOO F.2d 246 (3d

Cir. 1974).

14

On its face the Act ignores the sovereign character of the States

and adopts a scheme for implementing federal policy which was

rejected by the Constitutional Convention. In reviewing the Act,

however, the Court of Appeals bypassed the analysis that guided

the three courts in the EPA cases. Instead, it held that under Gar-

cia and its progeny, absent a defect in the political process or an

unequal treatment of a State, the federal courts have no role in

protecting any aspect of the sovereignty of the States in the fed-

eral system.

No decision of this Court has ever gone so far in limiting the

role of the federal courts. It is the well-established role of the fed-

eral courts “to say what the law is.’’ Marbury v. Madison, 5 U.S.

(1 Cranch) 137, 177 (1803). This Court has steadfastly main-

tained in its decisions on Tenth Amendment claims that it has am-

ple power to prevent “the utter destruction of the State as a sover-

eign political entity.”’ Maryland v. Wirtz, 392 U.S. 183, 196

(1968); Garcia v. San Antonio Metropolitan Transit Authority,

469 U.S. 528, 556 (1985); South Carolina v. Baker, 485 U.S. 505,

528 (1988) (Scalia, J., concurring).

This Court has never disavowed a role in protecting States

from direct Congressional mandates. In rejecting a number of re-

cent Tenth Amendment challenges to various congressional acts,

this Court has been careful to note that the statutes under review

did not “‘authorize the imposition of general affirmative obliga-

tions on the State.” See, e.g., Federal Energy Regulatory Com-

mission v. Mississippi, 456 U.S. 742, 769 n.32 (1982); South Car-

olina v. Baker, 485 U.S. 505, 514 (1988) (“[t]hat a State wishing to

engage in certain activity must take administrative and some-

times legislative action to comply with federal standards regulat-

ing that activity is a commonplace that presents no constitutional

defect”); Hodel v. Virginia Surface Mining and Reclamation As-

sociation, inc. , 452 U.S. 264, 288 (1981) (Congressional act held

constitutional when there was “no suggestion that the Act com-

15

mandeers the legislative processes of the States by directly com-

pelling them to enact and enforce a federal regulatory pro-

gram’’).

This bright line has now been crossed. The issue raised by the

EPA cases, but later dismissed as moot, is now presented to this

Court again for review.

The Court of Appeals, in upholding the Act, has failed to con-

sider the States’ role as separate sovereign entities within the fed-

eral system. If the States can be subjected to mandates by the na-

tional government to use their officials and funds to implement

federal policies, then they are less than sovereign entities, and ina

real sense, mere agents or departments of an all-encompassing

national government. This result would undermine the vital role

of the States in the federal system so recently reaffirmed by this

Court in Gregory v. Ashcroft, 111 S. Ct. 2395 (1991). It is re-

spectfully submitted that the threat to the sovereign character of

the States represented by the Act should be reviewed by this

Court.

B. THE ACT VIOLATES THE GUARANTEE OF A “RE-

PUBLICAN FORM OF GOVERNMENT”.

This action raises for the first time in this Court the issue of

whether the Guarantee Clause, Article IV, §4, imposes limita-

tions on federal action pursuant to the Commerce Clause affect-

ing the States.

This Court has recently recognized the Guarantee Clause as

confirming the power of the people of the States to determine the

qualifications of their most important elected officials.

These cases stand in recognition of the authority of the

people of the States to determine the qualifications of their

most important government officials. It is an authority that

lies at “ ‘the heart of representative government.” ” /bid. It

16

is a power reserved to the States under the Tenth Amend-

ment and guaranteed them by that provision of the Consti-

tution under which the United States “‘guarantee[s] to every

State in this Union a Republican Form of Government.”

U.S. Const., Art. IV, §4. See Sugarman, supra, 413 U.S., at

648, 93 S. Ct., at 2850-2851 (citing the Guarantee Clause

and the Tenth Amendment). See also Merritt, 88 Colum.

L.Rev., at 50-55.

As against Congress’ powers “[t]o regulate Commerce ...

among the several States,” U.S. Const., Art. I, §8, cl. 3, the

authority of the people of the States to determine the quali-

fications of their government officials may be inviolate.

Gregory v. Ashcroft, 111 S. Ct. 2395, 2402-03 (1991) (footnote

omitted).

A holding by this Court that the right of the people of the

States to select their own government officials is “inviolate” pur-

suant to the Guarantee Clause would be of little value, however,

if the national government is entitled to compel actions by such

officials despite the contrary voices of the people of the States.

This result would render the constitutional guarantee of a “‘Re-

publican Form of Government”’ solely a matter of form with no

substance.

In an insightful article on the role of the Guarantee Clause in

protecting State sovereignty, Professor Deborah Jones Merritt of

the University of Illinois College of Law has shown that man-

dates by the national government to State governments to exer-

cise their sovereign powers would violate the Guarantee Clause.

In arepublican government, all power derives from the vot-

ers. The citizens of a republican state decide when to exer-

cise their legislative or executive power and how to wield

that authority. If the federal government forces the states to

adopt a statute, it destroys this relationship between state

voters and their representatives; state legislators become ac-

17

countable to Congress, rather than to their constituents.

Similarly, if the national government compels the states to

enforce federal regulatory programs, state budgets and ex-

ecutive resources reflect federal priorities rather than the

wishes of local citizens. These results are antithetical to the

popular control exerted in a republican form of govern-

ment.

Directives that the states consider, adopt, or enforce fed-

eral programs, moreover, permit federal officials to escape

responsibility for their own initiatives. Congress may con-

serve federal resources and avoid unpopular tax increases

by compelling state governments to evaluate or administer

costly national programs. If a necessary program threatens

to generate controversy, Congress can avoid the voters’ ire

by forcing state legislatures to adopt the measure. The citi-

zens of each state, assuming that their local officials are re-

sponsible for the unwanted enactment, will retaliate against

those officials. Such confusion over the lines of political re-

sponsibility is unacceptable in a republican government; in

order to fulfill the ideal of popular control, the citizens

must know which officials are responsible for unpopular

legislation.

Merritt, ““The Guarantee Clause and Siate Autonomy: Federal-

ism for a Third Century” 88 Colum. L. Rev. 1, 61-62 (1988)

(footnotes omitted). See also L. Tribe, American Constitutional

Law §5-23 (2d ed. 1988); Federal Energy Regulatory Commis-

sion v. Mississippi, 456 U.S. 742, 789-91 (1982) (O’Connor, J.,

dissenting).

The Act represents an unprecedented invasion of State sover-

eignty by the national government. The mandatory nature of the

Act and its sanctions undermine the separate character of the

sovereign States and deny to the people of the States the right to

determine the course of their own governments. New York and its

political subdivisions have been forced against the will of their

constituents to exercise their sovereign powers to carry out the

18

policies of the Act. See A. 29-32 (Cross Aff. 44 3-11). As shown

by Justice O’Connor in her dissenting opinion in Federal Energy

Regulatory Commission v. Mississippi, 456 U.S. 742 (1982), and

the Fourth Circuit in Maryland v. Environmental Protection

Agency, 530 F.2d 215 (4th Cir. 1975), however, the notion that

national government could use the States’ governments to carry

out federal policy decisions was rejected by the Constitutional

Convention.

The Act’s implicit repudiation of a basic guarantee of our Con-

stitution is a matter that merits review by this Court.

CONCLUSION

As this Court has recently observed, our Constitution estab-

lishes a system of dual sovereignty including both the States and

the national government. The Act, however, is destructive of an

essential attribute of State sovereignty — the right of the States

and their citizens to decide when and how to exercise the States’

sovereign powers. By mandating that each State will be responsi-

ble for the disposal of low-level radioactive wastes generated

within the State, the national govern:nent treats the States as its

mere agents or departments.

The decision of the Court of Appeals goes far beyond any

prior decision of this Court by allowing the national government

to ignore the essential sovereignty of the States and by denying

the federal courts any role in protecting such sovereignty. Such

an important departure from this Court’s prior decisions and the

19

basic framework of the Constitution should be reviewed by this

Court. It is respectfully urged, therefore, that the Court grant the

Petition and set the case for argument.

Dated: October A 199]

Respectfully submitted,

Edward F. Premo, II, Esq.

Counsel of Record

Paul D. Sylvestri, Esq.

HARTER, SECREST & EMERY

Special Counsel for Petitioner

The County of Allegany

700 Midtown Tower

Rochester, New York 14604

(716) 232-6500