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

Supreme Court brief1992

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IN THE

VOID 1999

Fi@e OF THE CLERK

Supreme Court of the United Le

OcToOBER TERM, 199]

THE COUNTY OF CORTLAND, 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 COMMISSION; SAMUEL K. SKINNER.

as Secretary of Transportation; and WILLIAM P. BARR, as Acting

United States Attorney General,

Respondents,

STATE OF WASHINGTON, STATE OF NEVADA, and STATE OF

SOUTH CAROLINA,

Intervenors-Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

MICHAEL B. GERRARD

Counsel of Record

PaTRICK M. Snyper, P.E., Esa. BERLE, Kass & CASE

1 North Main Street, Room 407 45 Rockefeller Plaza

Cortland, New York 13045 New York, New York 1011]

(607) 753-8050 (212) 765-1800

DEBORAH GOLDBERG

Of Counsel

Attorneys for Petitioner

The County of Cortland, New York

QUESTIONS PRESENTED

1. When Congress rejects a wide array

of indisputably lawful techniques for

effecting the federal will and, for the

first time in this nation's history,

issues direct orders to the states --

as has been done in the Low-Level

Radioactive Waste Policy Amendments Act

of 1985 by requiring the states to

provide for disposal of such waste and

punishing failure to do so by forcibly

transferring the waste to the states --

should those commands be declared

violative of fundamental principles of

federalism expressed in the Tenth

Amendment and the Guaranty Clause of the

United States Constitution?

2. Should this Court clarify Garcia v.

Antonio Met Lit r r

Authority, 469 U.S. 528 (1985), by

recognizing that the political process

inadequately protects state sovereignty

when Congress commands the states alone

to undertake a specified program of

activities without possibility of

withdrawal from the field, and thereby

avoids responsibility for implementing

national policy, blurs the lines of

political accountability, and reduces

the ability of the states to serve as a

check on federal power?

iii

PARTIES TO THE CASE

IN _ THE SECOND CIRCUIT

The State of New York, Plaintiff-

Appellant

The County of Allegany, New York,

Plaintiff-Appellant

The County of Cortland, New York,

Plaintiff-Appellant

The United States of America,

Defendant-Appellee

James D. Watkins, as Secretary of

Energy, Defendant-Appellee

Kenneth M. Carr, as Chairman of the

Nuclear Regulatory Commission,

Defendant~-Appellee

The United States Nuclear Regulatory

Commission, Defendant-Appellee

Samuel K. Skinner, as Secretary of

Transportation, Defendant-Appellee

9. Richard Thornburgh, as United States

Attorney General, Defendant-

Appelleel

10. State of Washington, Intervenor-

Appellee

11. State of Nevada, Intervenor-Appellee

12. State of South Carolina, Intervenor-

Appellee

lRichard Thornburgh, former United

States Attorney General, was named as a

party in the proceedings below. Pursuant

to Supreme Court Rule 35.3, William P.

Barr, Mr. Thornburgh's successor in

office, has been substituted as a party

in this proceeding.

QUESTIONS PRESENTED.......+.---

PARTIES TO THE CASE

IN THE SECOND CIRCUIT..........

TABLE OF CONTENTS.....-+-++eeee.

TABLE OF AUTHORITIES..........-

OPINIONS BELOW.......--2eee6: eee

JURISDICTION... cccccccevcecees

CONSTITUTIONAL PROVISIONS

AND STATUTE INVOLVED..........-

STATEMENT OF THE CASE........+--.

ARGUMENT... cc csccccccccecccsces

POINT I: THE QUESTION WHETHER

LLRWPAA'S COMMANDS AND PENALTY

ARE CONSISTENT WITH

CONSTITUTIONAL PRINCIPLES OF

FEDERALISM SHOULD BE SETTLED

BY THIS COURT... -cceeeeececces

LLRWPAA Imposes Inescapable

Obligations upon the States

The Mechanisms of Federal

Control Employed in LLRWPAA

Contrast Sharply with Those

Previously Upheld by This

COUFE.ccccccccccscscccccces

1. Preemption and

Conditional Preemption.

TABLE OF CONTENTS (cont'd)

2. Federal Regulation of

Both Private and State

BOSE EE sc cceescncescess

3. Conditional Grants.....

C. The Further Expansion of

Federal Power Effected by

LLRWPAA Should Not Be

Permitted Without Prior

Review by This Court.......

POINT II: THE SECOND CIRCUIT'S

ANALYSIS IS INCONSISTENT WITH

THAT OF OTHER COURTS OF APPEALS

AND WITH THIS COURT'S STATEMENTS

REGARDING THE CONSTITUTIONALITY

OF DIRECT FEDERAL COMMANDS TO

SH STATES. cccccccccccceccccces

A. EPA v. Brown and the

Decisions of the Fourth,

Ninth, and District of

Columbia Circuits..........

De Bee coceseceoccesscveccese

Se} Bain We Bec cctcceccesses

D. The Decision Below..... caw a

APPENDIX

vii

TABLE OF CONTENTS (cont'd)

Opinion of the United

States Court of Appeals

for the Second Circuit.....

Opinion of the United

States District Court for

the Northern District of

Mane TEER cccccceseceseceece

Judgment of the United

States District Court for

the Northern District of

Mane TEE Rccccceeeesseeseeses

Excerpts, Low-Level

Radioactive Waste Policy

Amendments Act of 1985,

42 U.S.C. §§ 2021b-2021)j...

§ 2021c(a)(1) (A), (B)..----

Excerpt,

§ 20210(d) (2) (C)..-ccceeeee

§ 202le(e)(1) (A), (B), (C)-

18a

27a

29a

30a

3la

- , eS i el ae ae

ee ee eee i ee ee 7 eS

viii

CASES Page

Brown v. Environmental

, 521 F.2d 827

Protection Agency

(9th Cir. 1975), vacated sub

nom. Environmental Protection

Agency v. Brown, 431 U.S. 99

(AST Tpecccece ceeenseseeeooeseoes passim

521 F.2d 971 (D.C. Cir. 1975),

vacated sub nom. Environmental

Protection Agency v. Brown

431 U.S. 99 (1977)...... eases as passim

Envi “et

Agency v. Brown, 431 U.S. 99

DS tee eeetudedbueeueeees<s 12, 34,

39, 40

Equal Employment Opportunity

Comm'n v. Wyoming, 460

FF FP 226 (1983) wccccce e*eeer#**e#eee#e#*# 23

Federal Energy Regulatory

ieee my oy rm |

456 U.8. 742 (IGSSZ) occccccccces passim

Fry v. United States,

5 ey yl eee 22

Garcia v. San Antonio

Metropolitan Transit Authority,

469 U.S. S28 (1968) .cccccccccecs assi

TABLE OF AUTHORITIES (cont'd)

CASES (cont'd) Page

Hode] Neminin gure

Mining & Reclamation

Ass'n, Inc., 452 U.S.

BE BR 18-19,

Maryland v. Environmental]

Protection Agency, 530 F.2d 215

(4th Cir. 1975), vacated sub

nom.

Agency v. Brown, 431 U.S. 99

(1977) ee © @ se @eeeeeee#ee#ee#ee#e ee & 2 @ @& @ 12, >

35, 36

Vv , 392 U.S.

Se See sukhaaGecen Sl oar 23, 31

Usery, 426 U.S. 833 (1976)..... | |

Comm'n, 330 U.S. 127

Pi cthantenaddweede ducer. ces 26

South Carolina v. Baker, 485

U.S. 505 C2SSS) cccccecce effet © @ ssi

South Dakota v. Dole, 483 U.S.

203 +, eee re eFrFfe # 25, 26

WwW j ,

301 U.S. 548 (1937)......eeeeee 26

UNITED STATES CONSTITUTION Page

ee BE. @ Gs ccsevecceceoves nes 4

Amend. X.ccccccccscccccsevccves 3

FEDERAL STATUTES

28 U.S.C. § 1254(1).-- eee eevee 3

28 U.S.C.w § L3BBLwce eevee eeeeces 4 n.3

28 U.S.C. § DST ccccccccccecces 4n.3

28 U.S.C.w § 1346. cee eee eee eveess 4n.3

28 U.S.C. § 22O0L.~ cc cee eceveees 4n.3

28 U.S.C.w § 2202. ccc cccccececcecs 4n.3

Low-Level Radioactive Waste

Policy Amendments Act,

42 U.S.C. §§ 2021b-2021j....... passim

42 U.S.C. § 2021c(a)(1) ....... 15

SB UiBsG. 6 OURIOEEE icc cccceess 7

42 U.S.C. § 2021le(d)(2)(C)..... &

42 U.S.C. § 2021le(e) (1) (A)..... 15-16

42 U.S.C. § 2021e(e) (1) (B) (ii). 16

42 U.S.C. § 2021e(e) (1) (B) (iii) 16

TABLE OF AUTHORITIES (cont'd)

NEW YORK STATUTES Page

Beem Wete BED Gibco ccctecsccse 9

RULES

Supreme Court Rule 35.3........ iv n.l

OTHER AUTHORITIES

, No. 43,

at 315 (J. Madison)

(ae Wee Gis BED cccéecscsec 18

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

No.

THE COUNTY OF CORTLAND, NEW YORK,

Petitioner,

V «

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,

Respondents,

STATE OF WASHINGTON, STATE OF NEVADA,

and STATE OF SOUTH CAROLINA,

Intervenors~-Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petiti@mer, the County of

Cortland, New York ("Cortland County"),

respectfully prays that a writ of

certiorari issue to review the judgment

and opinion of the United States Court

of Appeals for the Second Circuit in

the above-captioned case.

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Second Circuit

in this case is reported at __ F.2d

__, 60 U.S.L.W. 2147, 1991 U.S. App.

LEXIS 18181, and is reprinted in the

Appendix at la-17a.2

The opinion of the United States

District Court for the Northern District

of New York is reported at 757 F. Supp.

10 and is reprinted in the Appendix at

18a-26a.

2" a" refers to pages of the

Appendix hereto. Pages of the Joint

Appendix submitted to the Court of

Appeals for the Second Circuit in this

case are cited as "Jt. App. at _."

JURISDICTION

The judgment of the Court of Appeals

in this case was entered on August 8,

1991. This Court has jurisdiction to

review that judgment pursuant to 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

—__AND STATUTE INVOLVED _

This case involves fundamental

principles of federalism established in

the United States Constitution,

especially as expressed in the following

provisions:

The 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." U.S.

Const. amend. X.

The Guaranty Clause: "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

Legislature, or of the Executive (when

the Legislature cannot be convened)

against domestic violence." U.S. Const.

art. IV, § 4.

The statute challenged in this case

is the Low-Level Radioactive Waste

Policy Amendments Act, 42 U.S.C.

§§ 2021b-2021}. Pertinent portions of

the statute challenged are reprinted in

the Appendix at 29a-33a.

STATEMENT OF THE CASE

This declaratory judgment action

challenges the Low-Level Radioactive

Waste Policy Amendments Act of 1985

("LLRWPAA"), 42 U.S.C. §§ 2021b-2021j,

as violative of constitutional principles

of federalism.? LLRWPAA is the federal

3The action was filed originally

in the United States District Court for

the Northern District of New York

pursuant to 28 U.S.C. §§ 1331, 1337,

response to the limited supply of low-

level radioactive waste ("LLRW") disposal

facilities. The LLRW disposal issue

began to receive national attention in

the late 1970s, when three of the

existing six facilities were closed

down because of serious environmental

problems.

In an effort to expand disposal

capacity, the State Planning Council on

Radioactive Waste, the National

Conference of State Legislatures, and

the National Governors' Association

recommended to Congress that the states

be given primary control over the

disposal site selection process. See

Jt. App. at 241. Instead of adopting

the recommended policy of primary state

control, with continued federal

1346, 2201, and 2202.

responsibility for disposal of federally

generated waste, Congress altogether

abdicated its responsibility for the

funding and siting of LLRW disposal

facilities by transferring that

responsibility exclusively to the states.

In the Low-Level Radioactive Waste

Policy Act, 42 U.S.C. §§ 2021b-202175

(the "LLRW Policy Act"), enacted on

December 22, 1980, Congress affirmatively

ordered each state to provide for

disposal of the LLRW generated within

its borders -- including some of the

waste generated by the federal government

itself -- within a specific timetable

set forth in the statute. Nevertheless,

in the years following the enactment of

the LLRW Policy Act, there was little

progress in developing new LLRW disposal

sites.

Consequently, Congress amended the

statute in 1985, enacting LLRWPAA,

which set new deadlines and established

stiff monetary sanctions for failure to

meet them. See 42 U.S.C. § 2021e(d).

As an additional penalty, Congress also

provided that if a state is unable, by

January 1, 1996, to provide for disposal

of all commercially generated LLRW

(including mixed waste)* produced within

its borders, the waste generators may

notify the state that their waste is

available for shipment and then require

the state to take title to and possession

of their LLRW. The generators may also

sue the state for any damages incurred

as a result of the state's failure to

take possession. See 42 U.S.C.

§ 2021e(d) (2) (C).

Like the requirement that states

alone establish LLRW disposal facilities,

4mixed waste is waste that is

classified as both radioactive and

hazardous. See Jt. App. at 47.

LLRWPAA's "take title" provision was

adopted without the endorsement of the

state organizations that had recommended

LLRW disposal policy to Congress in

1980. That provision was introduced at

the last minute, by Senate amendment to

the House bill, and was accepted by the

House on the same day, the last day of

the 1985 legislative session. See Jt.

App. at 12-13. Officials of the State

of New York therefore had no effective

opportunity to influence the provision

most directly responsible for forcing

the states to enter and remain in the

field of LLRW disposal.

The intrusion upon state sovereignty

effected by LLRWPAA is unprecedented.

Each branch of state government --

legislative, executive, and judicial --

has been conscripted into the service

of federal goals. State legislative

energies have been diverted to the

drafting, debating, and enacting of

state laws providing for a new LLRW

disposal facility that would never have

been contemplated but for the enactment

of the LLRWPAA. See, e.g., 1986 N.Y.

Laws 673; Jt. App. at 79-80, 87-154.

LLRWPAA has also commandeered New York's

executive apparatus by compelling the

State to develop and administer new

regulatory programs for land disposal.

See Jt. App. at 80-81. Finally, Congress

appropriates New York's judicial

machinery by imposing upon state courts

the task of enforcing the LLRWPAA's

sanctions against the State -- even

without prior waiver of the State's

sovereign immunity. See id. at 24.

Cortland County, together with the

State of New York and the County of

Allegany, New York, commenced this

action to challenge the constitutionality

LLRWPAA's incursion upon state autonomy.

The District Court upheld the statute,

see 24a-26a, and the Second Circuit

affirmed. See 17a.

The direct orders to the states

upheld by the courts below do not

“gradually erase the diffusion of power

between State and Nation." Garcia v.

San Antonio Metro. Transit Auth., 469

U.S. 528, 584 (1985) (O'Connor, J.,

dissenting). Those directives, enforced

by LLRWPAA's punitive sanctions, abruptly

transform the states into instruments

of the federal will. Such a radical

shift in the balance of power between

the federal government and the states

should not become final without this

Court's prior examination of the

constitutionality of the statute.

ARGUMENT

This challenge to LLRWPAA presents

a question of first impression for this

Court: whether direct federal commands

to the states violate constitutional

principles of federalism. The Court of

Appeals for the Second Circuit decided

that, under Garcia, such affirmative

orders to the states were consistent

with the system of dual sovereignty

established in our Constitution. The

Second Circuit's decision countenances

an unprecedented extension of federal

power and, if not overturned by this

Court, will undoubtedly be cited as

authority for further incursions upon

state sovereignty. Cortland County

respectfully suggests that this important

question of constitutional law merits

the consideration of, and should be

settled by, this Court.

The Second Circuit's determination

is also inconsistent with the analyses

of the Courts of Appeals for the District

of Columbia in District of Columbia v.

Train, 521 F.2d 971 (D.C. Cir. 1975),

vacated ied f eens:

of mootness sub nom. Environmental

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

(1977) ("EPA v. Brown"); the Fourth

Circuit in Maryland v. Environmental

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

Cir. 1975), vacated and remanded for

consideration of mootness, sub nom. EPA

v. Brown, supra; and the Ninth Circuit

in Brown v. Environmental Protection

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

vacated ; ied f —*

of mootness sub nom. EPA v. Brown,

supra; as well as with this Court's

reasoning in South Carolina v. Baker,

485 U.S. 505 (1988) ("S.C. v. Baker"),

and Federal Energy Regulatory Commission

v. Mississippi, 456 U.S. 742 (1982)

("FERC"). In those cases, the District

of Columbia Circuit expressly held, and

the Fourth and Ninth Circuits and this

Court suggested without deciding, that

affirmative federal orders to

unconsenting states are unlawful under

the Tenth Amendment. To resolve this

conflict in the analyses of the circuits

and the inconsistency with prior

statements of this Court, and to settle

the important questions of constitutional

law presented in this case, Cortland

County respectfully asks this Court to

issue a writ of certiorari to review

the judgment and opinion of the Second

Circuit.

POINT I

THE QUESTION WHETHER

LLRWPAA'S COMMANDS AND PENALTY

ARE CONSISTENT WITH

CONSTITUTIONAL PRINCIPLES OF FEDERALISM

___™[SHOULD BE SETTLED BY THIS COURT

The statute challenged in this case

is qualitatively different from any

previously considered by the United

States Supreme Court. Prior to LLRWPAA,

statutes reviewed and upheld by the

Supreme Court employed a wide range of

techniques to encourage the states to

promote federal goals, but none imposed

upon the states an inescapable obligation

to enter a new field, and none, to

Cortland County's knowledge, attempted

to penalize the states by compelling

state acquisition of property --

certainly not hazardous private property.

The cases discussed below clarify

exactly how far this Court has been

willing to go in expanding congressional

power under the Commerce Clause. The

discussion also demonstrates how much

further Congress has gone in enacting

LLRWPAA. Before Congress is permitted

to effect the extraordinary expansion

of power contemplated in LLRWPAA, this

Court should carefully review the statute

to ensure that it is consistent with

constitutional principles of federalism

and the guarantee of republican

government.

A. LLRWPAA Imposes Inescapable

The coercive effect of LLRWPAA is

evident on the face of the statute.

The statute provides in unequivocal

terms: "Each State shall be responsible

for providing, either by itself or in

cooperation with other States, for the

disposal of" LLRW. 42 U.S.C.

§ 2021c(a)(1) (reprinted at 29a). No

state is exempt from LLRWPAA's

requirements; no state may cede the

field to federal regulatory authorities;

no state may transfer its federally

imposed responsibilities to private

generators of LLRW.

LLRWPAA also expressly provides:

By July 1, 1986, each [state

that is not a member of a compact

region) shall ratify compact

legislation, or, by the enactment

of legislation or the

certification of the Governor,

indicate its intent to develop

a site for the location of a

low-level radioactive waste

disposal facility within the

State.

42 U.S.C. § 202le(e)(1)(A) (reprinted

at 3la). Thus, Congress has issued

direct orders to the legislature or

highest executive officer of each non-

compact. state, commanding specific

action with respect to the establishment

of a LLRW disposal facility. The statute

also specifies in detail the contents

of the siting plan that must be prepared

by each of those states. See jd. at

§ 202le(e)(1)(B)(ii) and (iii) (reprinted

at 3la-32a). These are additional non-

delegable duties imposed upon the states

by the statute.

In addition to the affirmative

obligations imposed by LLRWPAA, the

statute contains a novel and extreme

penalty for a state's failure to provide

for such disposal by 1996. The statute

compels the state to take title to and

possession of all LLRW offered to it

from generators and owners producing

such waste in the state or to assume

liability for all damages incurred by

those generators and owners as a result

of the failure to accept that waste.

see 42 U.S.C. § 2021le(d)(2)(C) (reprinted

in pertinent part at 30a). To our

knowledge, LLRWPAA is the first federal

statute in the history of this nation

seeking to impose such a liability on

the states.

B. The Mechanisms of Féderal Control

Employed in LLRWPAA Contrast

Sharply with Those Previously

The cases discussed below illustrate

some of the lawful techniques that

Congress might have used to impose its

LLRW disposal policy upon the states.

They also illuminate the difference in

kind between those constitutional

mechanisms of federal control and the

means of coercion adopted in LLRWPAA.

The decisions thus present the question

whether, in enacting LLRWPAA, Congress

has exceeded the limits of its undeniably

broad constitutional power and has

violated the "residuary sovereignty of

the States." Garcia, 469 U.S. at 552

(quoting The Federalist No. 43, at 315

(J. Madison) (B. Wright ed. 1961)).

This Court should issue a writ of

certiorari to the Second Circuit to

settle that important federal question.

1. Preemption and

The Supreme Court has consistently

held that "when regulations promulgated

by {federal and state] sovereigns

conflict, federal law necessarily

controls." FERC, 456 U.S. at 767. This

doctrine, known as the doctrine of

preemption, governed the outcome in

ode) — Mining §

Reclamation Association, Inc., 452 U.S.

264 (1981). Hodel involved a challenge

to the Surface Mining Control and

Reclamation Act of 1977 ("SMCRA"),

which established federal environmental

protection performance standards for

coal mining operations. The Act

permitted states to establish their own

regulatory programs to implement the

federal standards and provided for

direct federal enforcement of the

standards in the absence of such

programs. Thus, "the States [were] 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." Hodel, 452 U.S. at 288.

Citing a "wealth of precedent" attesting

to congressional authority to preempt

state laws governing private activity,

the Court upheld the Act's program of

"cooperative federalism" against

Virginia's Tenth Amendment challenge.

Id. at 289-90.

The federal requirements at issue

in FERC were more intrusive than those

in Hodel. In FERC, provisions of the

Public Utilities Regulatory Policies

Act ("PURPA") required state regulatory

authorities to implement certain federal

rules. See 456 U.S. at 759. PURPA

also required that state utility

commissions "consider," within certain

deadlines, the adoption and

implementation of specified ratemaking

standards. ld.

The Supreme Court applied the

doctrine of preemption in upholding the

obligation to implement federal rules.

A variation of the doctrine was also

invoked to uphold the second type of

requirement. The Court reasoned that

because the federal government could

have preempted all state regulation of

utilities, it could adopt the less

intrusive course of permitting the

states to continue regulating on the

condition that they merely consider the

federal standards. See id. at 765.

Finally, the Court noted that a state

could avoid even this obligation if it

"simply stops regulating in the field."

Id. at 764.

The statutes reviewed in these

decisions present a sharp contrast to

LLRWPAA. In LLRWPAA, unlike SMCRA,

Congress is not volunteering to undertake

LLRW disposal if the states decline

that opportunity. Nor is Congress

merely asking the states to implement

federal regulations governing private

activity. LLRWPAA governs the states,

alone, and as states; Congress abdicates

to them the entire responsibility for

creating disposal capacity for

commercially generated (and some

federally generated) LLRW.

In upholding PURPA, this Court

expressly distinguished the obligation

to consider federal rules from "a federal

command to the States to promulgate and

enforce laws and regulations." FERC,

456 U.S. at 762. The very need to make

that distinction indicates that this

Court regarded such direct commands .as

constitutionally suspect. Congress

ignored this Court's hints when enacting

LLRWPAA, however, which directly orders

the states to promulgate and enforce

new state laws and regulations and does

not permit states to "stop regulating

in the field."

2. Federal Regulation of Both

A second category of Tenth

Amendment lawsuits challenged statutes

that applied federal regulations to

both private activity and the states.

Fry _v. United States, 421 U.S. 542

(1975) (applying the Economic

Stabilization Act to state employees)

and Equal Employment Opportunity

Commission v. Wyoming, 460 U.S. 226

(1983) (applying the Age Discrimination

in Employment Act to state employees)

are examples of this type of suit. So

too are Maryland v. Wirtz, 392 U.S. 183

(1968); National League of Cities v.

Usery, 426 U.S. 833 (1976); and Garcia,

supra, all of which involved claims

under the Fair Labor Standards Act.

S.C. v. Baker, supra, also falls

into this category. That case involved

a challenge to section 310(b)(1) of the

Tax Equity and Fiscal Responsibility

Act of 1982 ("TEFRA"), which removed

the federal income tax exemption for

interest earned on publicly offered

long-term bonds issued by state and

local governments unless those bonds

were in registered form. TEFRA also

imposed tax penalties on unregistered

private corporate bonds. The plaintiffs

argued that the statute unlawfully

commandeered state legislative and

administrative processes by effectively

coercing states into enacting legislation

authorizing bond registration and

implementing the registration scheme.

This Court rejected those arguments,

stating: "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."

S.C. v. Baker, 485 U.S. at 515-16.

The instant case differs crucially

from S.C. v. Baker. TEFRA merely

requires South Carolina to conform to

federal standards while it engages in

voluntary activity, whereas LLRWPAA

compels New York to exercise its

legislative and executive powers in the

field of LLRW disposal, which the State

would eschew entirely were it not for

the threat of federally imposed

sanctions. Unlike TEFRA, LLRWPAA does

not regulate ongoing programs; it

mandates new activity irrespective of

the states' will.

3. Conditional Grants

The granting of federal funds upon

the condition that states comply with

federal requirements has consistently

been held constitutional. See South

Dakota v. Dole, 483 U.S. 203, 206-07

(1987) ("S.D. v. Dole"), and cases

cited therein. The Supreme Court

reaffirmed in S.D. v. Dole that "a

perceived Tenth Amendment limitation on

congressional regulation of state affairs

did not concomitantly limit the range

of conditions legitimately placed on

federal grants." Id. at 210.

Conditional grants have been upheld

because the states are free to decline

federal funds. See Oklahoma v. Civil

Serv. Comm'n, 330 U.S. 127 (1947).

When federal benefits are contingent

upon a state's cooperation with federal

plans, Congress merely prescribes "a

condition which the state is free at

pleasure to disregard or fulfill."

Stewart Mach. Co. v. Davis, 301 U.S.

548, 595 (1937).

The contrast with LLRWPAA is obvious.

The State of New York is not free at

pleasure to disregard or fulfill the

obligation imposed by LLRWPAA. New

York is being required to undertake a

new and risky business. Its financial

resources and administrative machinery

are being diverted against its will

from the goals preferred by the citizens

of New York to those selected by

Congress.

C. The Further Expansion of Federal

Power Effected by LLRWPAA Should

Not Be Permitted Without Prior

Review by This Court

As the discussion above shows,

"(t)his Court has been increasingly

generous in its interpretation of the

commerce power of Congress ... ."

Garcia, 469 U.S. at 583 (O'Connor, J.,

dissenting). Pursuant to that power,

Congress has lawfully preempted state

regulation, conditioned federal funding

upon the states' compliance with federal

rules, and required the states to

consider federal standards before

regulating ongoing programs.

Congress abjured that entire array

of unquestionably lawful techniques for

effecting federal policy when it enacted

LLRWPAA. In that statute, Congress

instead adopted a new and qualitatively

different means of effecting its will.

It baldly issued direct orders to the

states to undertake new activity.

The courts below treated this novel

legislative device as if it were no

different from prior exercises of federal

legislative power. The Second Circuit

wholly failed to appreciate the

substantially different implications of

the new technique for the accountability

of elected representatives and the role

of federalism as a check on national

power; indeed, that court dismissed

arguments directed to those issues

without discussion. See 17a. Having

declined to consider either the functions

or history of constitutional federalism,

the.Second Circuit concluded that

LLRWPAA's direct commands to the states

were lawful under Garcia. See 17a.

It is unclear from the majority

opinion in Garcia, however, whether

this Court intended the political process

to serve as the primary safeguard of

state sovereignty when Congress simply

orders the states to enter and remain

in a new field. Garcia merely concerned

an effort to regulate the states along

with similarly situated private parties.

Likewise, S.C. v. Baker, the only Tenth

Amendment case decided by this Court

since Garcia, involved a statute that

treated private parties and the states

equally. Here, where the statute singles

out the states for LLRW disposal

responsibilities, and in fact lifts and

shifts those burdens from the shoulders

of private (and some federal) waste

generators, it is not obvious whether,

and if so how, the approach endorsed in

Garcia is to be applied.

The issue presented in the instant

case is too important to be finally

decided by an intermediate appellate

court. The decision below not only

extends the jurisprudential analysis in

Garcia far beyond that contemplated by

this Court when deciding that case but

also, for the first time, allows the

federal government to operate directly

upon the states rather than through the

constitutional mechanism of the Supremacy

Clause. See FERC, 456 U.S. at 795 &

n.34 (O'Connor, J., concurring in the

judgment in part and dissenting in

part). Before Congress is licensed to

avoid the costs of enforcing unpopular

federal programs by simply requiring

the states to implement national policy

-- as would be permitted pursuant to the

decision below -- this Court should

consider carefully whether such an

extension of federal power is consistent

with the history and purposes of

constitutional federalism.

Such review is all the more important

in view of the longstanding controversy

within this Court regarding the proper

analytical approach to issue of

federalism. Within a ten-year period,

this Court twice overruled leadiiig

Tenth Amendment cases by narrow 5-4

margins, and both Garcia and National

League of Cities contained impassioned

dissents. See Garcia, supra (Burger,

C.J., and Powell, Rehnquist, and

O'Connor, JJ., dissenting), overruling

National League of Cities in 1985;

National League of Cities, supra

(Brennan, White, Marshall, and Stevens,

JJ., dissenting), overruling Maryland

v. Wirtz in 1976. If the analysis

endorsed by the majority in Garcia is

to be reaffirmed and applied to LLRWPAA,

and thus to future congressional commands

to the states, the decision to do so

should come from the court best able to

elucidate the intent and scope of

Garcia's jurisprudential approach.

In sum, when it enacted LLRWPAA,

Congress adopted a constitutionally

untried method to enlarge its own power.

Because the constitutionality of

statutory provisions affirmatively

requiring the states to enter a field,

without possibility of withdrawal, has.

never been considered by this Court, the

courts below were forced to decide the

important issues presented in this case

without clear guidance from this Court.

To provide clear guidance for future

decisions, and to ensure adequate

consideration of the consistency of

LLRWPAA's commands with the history and

purposes of constitutional federalism,

Cortland County respectfully petitions

this Court for a writ of certiorari.

POINT If

THE SECOND CIRCUIT'S ANALYSIS

IS INCONSISTENT WITH THAT

OF OTHER COURTS OF APPEAL

AND WITH THIS COURT'S STATEMENTS

REGARDING THE CONSTITUTIONALITY OF

_DIRECT FEDERAL COMMANDS TO THE STATES |

The Second Circuit is the first

appellate court to review the

constitutionality of LLRWPAA. Cortland

County thus does not pretend that a

direct conflict exists among the courts

of appeals regarding the legitimacy of

that statute.

The Second Circuit is not, however,

the first appellate court to decide

whether direct congressional commands

to the states violate constitutional

principles of federalism. The Fourth,

Ninth and District of Columbia Circuits,

in Maryland v. EPA, Brown v. EPA, and

D.c. v. Train, respectively, as well as

this Court in FERC and S.C. v. Baker,

have addressed that issue and, unlike

the Second Circuit, have consistently

found federal orders to the states that

prevent them from withdrawing from a

mandated activity to be suspect under the

Tenth Amendment. The divergent views

of the courts of appeals and the

inconsistency of the Second Circuit

opinion in this case with prior

statements of this Court create

uncertainty regarding the proper

constitutional analysis of congressional

orders compelling states to undertake

specific activity. This Court should

grant a writ of certiorari in this case

to settle this important jurisprudential

issue.

A. EPA v. Brown and the Decisions of

the Fourth, Ninth, and District of

Columbia Circuits _

The question now facing this Court

was first presented to it in EPA vy.

Brown, supra. That case involved the

consolidated review of the decisions of

three circuits, see Maryland v. EPA,

supra; Brown v. EPA, supra; D.C. V+

Train, supra, concerning the authority

of the Environmental Protection Agency

("EPA") under the Clean Air Act to

require states to establish mandatory

vehicle inspection and maintenance

("I&M") programs. The appellate courts

agreed that the Clean Air Act would be

unconstitutional if it authorized the

I&M requirements.

In Maryland v. EPA, Maryland

challenged EPA's right to compel it to

enact I&M programs and other pollution

control legislation. In evaluating the

EPA regulations, the Fourth Circuit

distinguished constitutionally

permissible forms of federal pressure

on the states from attempts by "the

nation [to] direct tne legislature of a

state to act." Maryland v. EPA, 530

F.2d at 225, 228. Finding that the

constitutional validity of the challenged

regulations was "very doubtful at the

very best," the Court held that the

Clean Air Act did not authorize their

promulgation. See id. at 225-26.

The Ninth Circuit also concluded

that the Clean Air Act would likely be

unconstitutional were it to be

interpreted to permit imposition of an

affirmative state obligation to

"undertake a program of control suggested

by the Administrator," Brown v. EPA,

521 F.2d at 840, including challenged

I&M regulations. That circuit court

explained:

[O)ur constitutional concerns

{should not be] interpreted as

disfavoring a determination by

Congress that the states may

regulate certain aspects of

commerce which have an effect

on interstate commerce only in

certain specified ways if a

- We

are, however, adopting an

interpretation which makes it

unnecessary for us to face the

issue of whether Congress can

prevent a state's withdrawal

from the field.

Id. To avoid problems under both the

Tenth Amendment and the Guaranty Clause,

the Ninth Circuit determined that the

EPA was without statutory authority to

compel the states to administer a

federally dictated program of

environmental control.

In D.C. v. Train, the District of

Columbia Circuit agreed that EPA's I&M

regulations were invalid in part because

they were unauthorized under the Clean

Air Act; it also found them

unconstitutional. D.C. v. Train, 521

F.2d at 994. That circuit court directly

addressed Commerce Clause and the Tenth

Amendment challenges to EPA's requirement

that the District of Columbia establish

federally specified retrofit programs

for four types of vehicle. The court

distinguished permissible federal

regulation from compelled state

administration of the federal regulatory

scheme and concluded: "We are aware of

no decisions of the Supreme Court which

hold that the federal government may

validly exercise its commerce power by

directing unconsenting states to regulate

activities affecting interstate commerce,

and we doubt that any exist." Id. at

992.

The District of Columbia Circuit

also declared the I&M and retrofit

regulations unconstitutional under the

Tenth Amendment. The court suggested

that "the Tenth Amendment may prevent

Congress from selecting methods of

regulating which are 'drastic' invasions

of state sovereignty where less intrusive

means are available." Jd. at 994. The

Court rejected the argument that state

administration would be less intrusive

than direct federal regulation. "The

principle at work here is not that the

states have an interest in keeping the

federal government from regulating

. . but rather that they are to be

inactive." Id. (emphasis added).

The Solicitor General petitioned

the United States Supreme Court for

writs certiorari to review the decisions

from the three circuits insofar as they

invalidated the I&M programs. In

briefing the case, the federal parties

admitted that the EPA regulations would

be invalid unless modified to remove the

requirements that the states enact laws

and submit legally adopted I&M

regulations. See EPA v. Brown, 431

U.S. at 103. In view of this admission,

this Court could simply have affirmed

the decisions below. Instead, it avoided

discussing the constitutional questions

by declining to review the regulations,

vacating the appellate court judgments,

and remanding the cases for consideration

of mootness. See id. at 104.

LLRWPAA is strikingly similar to

the regulations challenged in the EPA

cases. Like the EPA regulations, LLRWPAA

explicitly directs the states to enact

specific new statutes and regulations

and imposes serious penalties for

noncompliance.> Like the regulations,

LLRWPAA creates a situation in which

the states are forced to enter and are

unable to withdraw from a particular

°LLRWPAA goes beyond even these

demands, requiring the states to take

title and possession of LLRW in

perpetuity if disposal facilities are

not available by 1996. Because few

sites are likely to be ready by then,

see Jt. App. at 54-55, Congress has

effectively designated new owners of

dangerous materials the generation of

which is not in the control of the

states.

field of environmental concern. The

basic constitutional issue skirted in

EPA v. Brown is thus virtually identical

to that presented in the instant case.

B. FERC

The statute reviewed in FERC,

discussed briefly above, offered this

Court a second opportunity to decide

whether Congress could impose positive

duties on the states to undertake

specified activity. Justice O'Connor

argued that PURPA's directive requiring

state agencies to evaluate specified

federal standards unconstitutionally

"conscript[ed}] state agencies into the

national bureaucratic army." FERC, 456

U.S. at 775 (O'Connor, J., concurring

in the judgment in part and dissenting

in part). The FERC majority rejected

this view, stating:

Titles I aid III [of PURPA] do

not invelve the compelled

exercise of Mississippi's

sovereign powers. And, equally

important, they do not set a

mandatory agenda to be considered

in all events by state

legislative or administrative

decisionmakers. As we read

them, Titles I and III simply

establish requirements for

continued state activity in an

otherwise pre-emptible field.

Whatever the constitutional

problems associated with more

intrusive federal programs, the

“mandatory consideration"

provisions of Titles I and III

must be validated... .

FERC, 456 U.S. at 769-70.

The clear implication of this

reasoning is that a statute, such as

LLRWPAA, that does compel the exercise

of sovereign powers and that does set a

mandatory agenda to be considered by

state legislative or administrative

decisionmakers clearly presents

constitutional problems. That the FERC

majority so understood the limits of the

commerce power is clear from its

protestation that its holding "[did} not

«lll

purport to authorize the imposition of

general affirmative obligations on the

States." Id. at 769 n.32. Such

obligations clearly are not authorized

under our Constitution.

Cc. §.C. v. Baker

In S.C. v. Baker, the State of

South Carolina argued that section 310

of TEFRA impermissibly commandeered the

state legislative and administrative

process. See 485 U.S. at 513. In

support of that argument, South Carolina

cited FERC, "which left open the

possibility that the Tenth Amendment

might set some limits on Congress’

power to compel states to regulate cn

behalf of federal interests." Id.

In response to South Carolina's

argument, this Court stated:

The extent to which the Tenth

Amendment claim left open in

FERC survives Garcia or poses

constitutional limitations

independent of those discussed

in Garcia is far from clear.

We need not, however, address

that issue because we find the

Claim discussed in FERC

inapplicable to § 310.

Id. Again, the implication of this

statement is that if the claim discussed

in FERC had applied to section 310 of

TEFRA, as it unquestionably applies to

LLRWPAA's mandates, the Court would

have had to address the issue.

This Court's reasoning in finding

FERC inapplicable to section 310 suggests

that, had the Court reached the issue,

it would have found statutory provisions

that compel the states to enter and

remain in a field unconstitutional

under the Tenth Amendment. Section 310

was found not to present any

constitutional defect because, like

PURPA, its requirements were conditioned

upon the state's voluntary undertaking

of the federally regulated activity.

See S.C. v. Baker, 485 U.S. at 514-15.

Following the logic of the majority

opinion, federal statutes that force

unconsenting states to undertake new

activity violate constitutional

principles of federalism.

D. The Decision Below

The clear implication of EPA v.

Brown, FERC, and S.C. v. Baker, as well

as the EPA cases decided by the Fourth,

Ninth, and District of Columbia Circuits,

is that Congress lacks the authority to

require the states to operate ina

field against their will. In reviewing

the instant challenge to LLRWPAA, the

Second Circuit declined even to mention

those cases, which were fully briefed

below, except twice to quote S.C. v.

Baker. Both quotes were introduced to

support the Second Circuit's view that,

under Garcia, the Tenth Amendment imposes

no limits whatsoever on federal action,

provided that the political process

does not operate defectively when

Congress exercises its commerce power.

See 12a, 16a.

Cortland County argued below that,

even under Garcia, the affirmative

obligations imposed in LLRWPAA should

be found unconstitutional. Cortland

County suggested that the avoidance of

responsibility, and blurring of the

lines of accountability, that necessarily

attend congressional commands to the

states should be regarded as

constitutionally fatal defects in the

poiitical process. See FERC, 456 U.S.

at 787 & n.19 (O'Connor, J., concurring

in the judgment in part and dissenting

in part). Cortland County's analysis

is consistent with this Court's decision

in Garcia as well as the appellate and

Supreme Court opinions discussed above.

The Second Circuit summarily

dismissed Cortland County's arguments

and disregarded prior analyses whereby

federal orders preventing state

withdrawal from a mandated activity

were found unlawful under the Tenth

Amendment. The decision below thus

creates doubt about the constitutional

status of direct congressional commands

requiring the states to enter and remain

in a specified field. This issue is

far too important to our system of dual

sovereignty to remain in a state of

uncertainty. This Court should therefore

issue a writ of certiorari to the Second

Circuit to clarify the jurisprudence of

Garcia and its implications for

affirmative federal commands to the

states.

CONCLUSION

For the reasons stated above, this

Court should issue a writ of certiorari

to the Court of Appeals for the Second

Circuit in this case.

Dated: New York, New York

October 3, 1991

Respectfully submitted,

Michael B. Gerrard

Counsel of Record

BERLE, KASS & CASE

45 Rockefeller Plaza

New York, New York 10111

(212) 765-1800

Of Counsel:

Deborah Goldberg

PATRICK M. SNYDER,

P.E., ESQ.

1 North Main Street

Room 407

Cortland, New York 13045

(607) 753-8050

Attorneys for Petitioner

The County of

Cortland, New York

APPENDIX

Opinion of the United States Court of Appeals, Second

Circuit, Dated August 8, 1991

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT.

No. 1511, 1512, 1513 August Term, 1990

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

Docket No. 91-6031, 91-6033 & 91-6035

THE STATE OF NEW YORK, THE COUNTY OF ALLEGANY,

New YORK and THE COUNTY OF CORTLAND, NEW YORK,

Plaintiffs-Appellants,

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

RICHARD THORNBURGH, as United States Attorney

General,

Defendants-Appellees,

STATE OF WASHINGTON; STATE OF NEVADA; and STATE

OF SOUTH CAROLINA,

Intervenors-Appellees,

AMERICAN COLLEGE OF NUCLEAR PHYSICIANS; ARIZONA

PUBLIC SERVICE COMPANY; BALTIMORE Gas & ELEC-

TRIC COMPANY; CALIFORNIA RADIOACTIVE MATERIALS

MANAGEMENT Forum, INC.; COMMONWEALTH EDISON

COMPANY; FLORIDA POWER & LIGHT COMPANY; GULF

STATES UTILITIES COMPANY; MALLINKRODT MEDICAL.

Inc.; PaciFic Gas & ELectric Co.; PuBLic SERVICE

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 seeking

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 j,

does not violate state sovereignty protected under the Tenth

Amendment and related principles 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 counsel),

for Plaintiff-Appellant State of

New York.

EDWARD F. PREMoO, II

Harter, Secrest & Emery

Rochester, N.Y.

(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

Washington, D.C.

(Anne S. Almy and Louise F. Milkman,

of counsel)

for Defendants- Appellees.

ALLEN T. MILLER, Jr.

Assistant Attorney General

(Kenneth O. Eikenberry, Attorney

General, State of Washington)

for Intervenors-Appellees State of

Washington and State of Nevada.

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-2021j, 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.

For the reasons sct forth, we affirm.

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.,

_ 110S. 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

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 already 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

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

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 well as

the due process clause of the Fifth Amendment? and the

'The Tenth Amendment provides:

?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 wy Citizens of

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

U.S. Const. amend. XI.

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

person shall:

guaranty clause of article IV of the United States Constitu-

tion.* 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

“The 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 there 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. Jd. at 13; see Fed. R. Civ. P. 12(6X6). It is uncontested that

the district court considered documentary evidence and affidavits.

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

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

717 (2d Cir. 1984). In reviewing de novo 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.” Jd. 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 due

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 nuclear 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.

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. § 2021c(aX1). If a 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. § 2021e(dX2KC).

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—ie., 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 repudiat[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, will 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 2 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 Vaste

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

less accepted the taking title provision by unanimous

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

political 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 Conference 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-

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. Ml 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 process

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

egulate 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

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 YORK, et al,

Plaintiff,

against

UNITED STATES OF AMERICA,

Defendant.

90-CV-162

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. 20530

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. I 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.

21a

complex and involved as this case obviously is. I 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 last 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 will 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 I 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 seg, 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

29a

EXCERPTS

LOW-LEVEL RADIOACTIVE WASTE

POLICY AMENDMENTS ACT OF 1985

42 U.8.C. §§ 2021b-20214

Section 2021c(a) (1) (A), (B)

§ 2021c. Responsibilities for disposal of low-level ra-

dioactive waste

(a)(1) Each State shall be responsible for pro-

viding, 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

subparagraph (A) that is generated by the

Federal Government except such waste that

is—

(1) owned or generated by the Department

of Energy;

(11) owned or generated by the United

States Navy as a result of the decommis-

sioning of vessels of the United States Navy;

(ili) owned or generated as a result of any

research, development, testing, or produc-

tion of any atomic weapon: and

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Excerpt

Section 2021le(d) (2) (C)

If a State (or, where applicable,

a compact region) in which low-level radio-

active waste is generated is unable to pro-

vide for the disposal of all such waste gener-

ated 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 pos-

session of the waste, and shall be liable for

all damages directly or indirectly incurred

by such generator or owner as a COrise-

quence of the failure of the State to take

possession of the waste as soon after Janu-

ary 1, 1996, as the generator or owner noti-

fies the State that the waste is available for

shipment.

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Section 202le(e) (1) (A), ‘7 . fe)

(e) Requirements for access to regional disposal fa-

cilities

(1) Requirements for non-sited compact regions

and non-member States

Each non-sited compact region, or State

that is not a member of a compact region that

does not have an operating disposal facility,

shall comply with the following requirements:

(A) By July 1, 1986, each such non-

member State shall ratify compact legisla-

tion or, by the enactment of legislatinn or

the certification of the Governor, indicate

its intent to develop a site for the location

of a low-level radioactive waste disposal fa-

cility within such State.

(B) By January 1, 1988

(i) each non-sited compact region shall

identify the State in which its low-leve]

radioactive waste disposal facility is to be

located, or shall have selected the devel-

oper for such facility and the site to be

developed, and each compact region or

the State in which its low-level radioac-

tive waste disposal facility is to be located

Shall develop a siting plan for such facili-

ty providing detailed procedures and a

schedule for establishing a facility loca-

tion and preparing a facility license appli-

cation and shall delegate authority to im-

plement such plan;

(ii) each non-member State shall deve)-

Op a siting plan providing detailed proce-

dures and a schedule for establishing a fa-

cility location and preparing a facility li-

cense application for a low-level radioac-

tive waste disposal facility and shall dele-

gate authority to implement such plan;

and

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(iii) The siting plan required pursuant

to this paragraph shall include a descrip-

tion of the optimum way to attain oper-

ation of the low-level radioactive waste

disposal facility involved, within the time

period specified in sections 2021b to 2021)

of this title. Such plan shall include a de-

scription of the objectives and a sequence

of deadlines for all entities required to

take action to implement such plan, in-

cluding, to the extent practicable, an iden-

tification of the activities in which a delay

in the start, or completion, of such activi-

ties will cause a delay in beginning facility

operation. Such plan shall also identify,

to the extent practicable, the process for

(1) screening for broad siting areas; (2)

identifying and evaluating specific candi-

date sites; and (3) characterizing the pre-

ferred site(s), completing all necessary en-

vironmental assessments, and preparing a

license application for submission to the

Nuclear Regulatory Commission or a

Agreement State.

(i) a complete application (as deter-

mined by the Nuclear Regulatory Com-

mission or the appropriate agency of an

agreement State) shall be filed for a li-

cense to operate a low-level radioactive

waste disposal facility within each non-

sited compact region or within each non-

member State; or

(ii) the Governor (or, for any State

without a Governor, the chief executive

officer) of any State that is not a member

of a compact region in compliance with

clause (i), or has not complied with such

clause by its own actions, shall provide a

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written certification to the Nuclear Regu-

latory Commission, that such State will

be capable of providing for, and will pro-

vide for, the storage, disposal, or manage-

ment of any low-level radioactive waste

generated within such State and requiring

disposal after December 31, 1992, and in-

clude a description of the actions that will

be taken to ensure that such Capacity

exists.

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