New York v. United States

Justices Blackmun, Stevens, and White dissented from the Court's ruling on the "take-title" incentive, and two filed dissenting opinions. White's, in which Blackmun and Stevens joined, was by far the longer. He began it by tracing the history of the act from his perspective, as a "delicate compromise" between the states and the federal government--a balance which in his view the Court would upset by its ruling. "I am unmoved," Justice White wrote, "by the Court's vehemence in taking away Congress' authority to sanction a recalcitrant unsited State now that New York has reaped the benefits of the sited States' concessions." By no means did the provision place undue penalties on New York; in order to be effective, the act had to offer some sort of punitive measures to discourage noncompliance.

Justice White also offered a reading of Hodel and FERC v. Mississippi (1982), another case that the Court had cited in its ruling, which differed sharply from the Court's view of those cases. Indeed, White questioned the very basis of the distinction that the Court had made between federal statutes that regulated both states and private parties, as opposed to those which placed a regulation solely on states. While conceding the value of the system of checks and balances between the powers of the federal government and those of the states, White held that in the present case, that concept had been wielded for no good purpose. The act did not pose a genuine threat to state sovereignty, he held, whereas the situation it was made to address--nuclear waste--was a "crisis of national proportions." The Court's ruling on the act, a judgment which White viewed as defeating the flexibility offered by the "delicate compromise," did nothing to further the solution of that crisis.

Justice Stevens also concurred in part and dissented in part, holding that "The notion that Congress does not have the power to issue a simple command to state governments to implement legislation enacted by Congress . . . is incorrect and unsound." After all, the Court had power to resolve controversies between the states, and if one state took action against another over an issue arising from a regional compact, the Court had authority to adjudicate it. If the Court had such power to decide issues between states, Justice Stevens asked, why did Congress not have similar authority to order the states to comply with federal law?