New York v. United States

"We live in a world full of low level radioactive waste," Justice O'Connor wrote in the Supreme Court's New York v. United States ruling. As she observed, such waste comes from "luminous watch dials, smoke alarms, measurement devices, medical fluids, research materials, and the protective gear and construction materials used by workers at nuclear power plants." Industry produces such waste, as do hospitals, research institutions, and governments. That waste is most often buried in the ground at specific dumping sites. Few people choose to have such a site near them, since the waste is harmful to the environment and to human health.

In 1962, Congress established the first dumping site for low-level radioactive waste in Beatty, Nevada. During the next decade, it set up five more sites, in Maxey Flats, Kentucky; West Valley, New York; Hanford, Washington; Sheffield, Illinois; and Barnwell, South Carolina. Between 1975 and 1978, three of the sites--in Illinois, Kentucky, and New York permanently closed. This left only the Nevada, Washington, and South Carolina dumps, to which the rest of the country shipped its waste. The two western sites shut down temporarily in 1979, and the governors of Nevada and Washington announced plans for permanent shutdowns. Thus, South Carolina was to be left to bear the burden for the entire nation. In response to the situation, that state's governor ordered the Barnwell site to accept half of the waste it had previously received.

Congress was compelled to act, so in 1980, following a set of recommendations submitted to it by the National Governors' Association (NGA), it passed the Low-Level Radioactive Waste Policy Act. The act held each state responsible for dealing with its own radioactive waste, which could be done "most safely and efficiently . . . on a regional basis." Therefore it authorized states to make regional compacts for waste disposal, but it did not penalize states who failed to participate in such compacts. By 1985, only three compacts had been approved--and these had been formed around the existing "sited states" of South Carolina, Nevada, and Washington. Not surprisingly, other states had been reluctant to create sites, and 31 states not covered by regional compacts would have no available place to dump their wastes.

Based on a proposal submitted by the NGA, the 1985 act proposed a compromise: the three sited states would continue to accept the rest of the nation's waste for seven more years, until 1992, by which time the states not covered by regional compacts would be expected to make other arrangements for their waste disposal. "The mechanics of this compromise," Justice O'Connor wrote, "are intricate," and involved a graduated surcharge system whereby the cost of dumping by non-sited states would increase with time: $10 per cubit foot in 1986-87; $20 in 1988-89; and $40 in 1990-92. Under the act, states had three forms of incentive to comply with the statute's requirement that they develop their own arrangements for waste disposal. The first of these was monetary: the U.S. secretary of energy would collect one-quarter of the surcharges collected by the sited states in an escrow account, from which the states who complied would receive payments. The second incentive involved access--specifically, the denial of access to waste-disposal sites for non-sited states (i.e., states without any compact agreement), and graduated surcharges for each period in which they failed to make the necessary steps for compliance. Then there was the third incentive, the "take-title provision," which the Court would later deem "the most severe." If a state failed to provide for disposal, either within its borders or through a regional compact, by 1 January 1996, it would be required to "take title to the waste." The act further provided that the state would "be obligated to take possession of the waste, and shall be liable for all damages directly or indirectly incurred . . . as a consequence of the failure of the State to take possession of the waste . . . " This could potentially cost states large sums of money, not only for the waste disposal itself, but from claims against states by entities wishing to dispose of such waste.

In the years from 1985 to 1992, Congress approved nine regional compacts, covering 42 of the states. In a brief to the U.S. Supreme Court, the federal government explained that New York was a state that generated "a relatively large share of the Nation's low level radioactive waste," but had not joined a regional compact. Instead, it had identified five potential dumping sites, three in Allegany County and two in Cortland County. Residents of those counties opposed the state's plan, so New York and the two counties filed suit against the United States in 1990. The states of Washington, Nevada, and South Carolina also included themselves as defendants. The district court dismissed the complaint, and the petitioners appealed. They had originally raised a number of constitutional challenges to the act, but by the time the case reached the Supreme Court, their opposition rested on the Tenth Amendment and the Guarantee Clause, which holds in part that "The United States shall guarantee to every State of this Union a Republican Form of Government, and shall protect each of them against invasion . . . "

Briefs of amici curiae urging reversal of the lower court's ruling were filed by officials representing the states of Arizona, Arkansas, California, Illinois, Indiana, Kentucky, Maine, Massachusetts, Nebraska, New Jersey, Ohio, Pennsylvania, Rhode Island, South Dakota, Texas, West Virginia, and Wisconsin; for the territory of Guam; and for the Council of State Government. Briefs urging affirmance were filed by the American College of Nuclear Physicians et al., the American Federation of Labor and Congress of Industrial Organizations (AFL/CIO), and the Rocky Mountain Low-Level Radioactive Waste Compact. Briefs were also filed by the states of Connecticut and Michigan, and US Ecology, Inc.