The nuke-speak spin doctors have expended quite a large amount of time, not to mention money, to represent to the country that the 1992 U.S. Supreme Court decision in New York v. United States, et al., was an endorsement of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (the 1985 Act), requiring states to accept responsibility for the nuclear industries' low-level radioactive waste (LLRW). Further, it has been suggested, and continues to be suggested, that the Supreme Court's declaration that a provision of the 1985 Act was unconstitutional may not apply to States that are members of compacts.When one studies the Court's decision in its entirety, it appears that such representations are a bit off ground-zero.
Basically, the Court upheld the provisions of the 1985 Act which (1) allowed for the collection of surcharges by the States which had LLRW disposal sites operating within their borders (Sited States), and provided for the redistribution of 25% of such surcharges to the non-sited States if certain milestones were met, and (2) allowed such Sited States to deny access to the disposal sites within their borders after December 31, 1992.The Court struck down as unconstitutional a thrid provision, which required states that did not have LLRW disposal capacity available by January 1, 1996, to take title to the LLRW generated within their borders and assume liability therefor. The Court found that, "In this provision, Congress has not held out the threat of exercising its spending power or its commerce powers, it has instead held out the threat, should the States not regulate according to one federal instruction, of simply forcing the States to submit to another federal instruction. A choice between two unconstitutionally coercive regulatory technniques is no choice at all. ...Whether one views the take title provision as lying outside Congress' enumerated powers, or as infringing upon the core of state sovereignty reserved by the Tenth Amendment, the provision is inconsistent with the federal structure of our Government established by the Constitution." [Emphasis supplied.]
It is difficult to understand how the nuclear industry came to the conclusion that the Court's decision endorses a requirement that States be responsbile for the disposal of LLRW. The Court declined to view the 1985 Act as a command. Rather, the Court staed, "The affected States are not compelled by Congress to regulate because any burden caused by the State's refusal to regulate will fall on those who generate waste and find no outlet for its disposal, rather than on the State as a sovereign. A State whose citizens do not wish to attain the Act's milestones may devote its attention and its resources to issues its citizens deem more worthy; the choice remains at all times with the State, not with Congress. The State need not expend any funds, or participate in any federal program, if local residents do not view such expenditures or participation as worthwhile. Nor must a State abandon the field if it does not accede to federral direction; the State may continute to regulate the generation and disposal of radioactive waste in any manner its citizens see fit." [Emphasis supplied.]
It is even more difficult to understand how anyone could suggest that a provision of law declared unconstitutional by the Supreme Court, could somehow still apply to any State, regardless of a state's membership in a compact. Apparently, the concept goes like this: States that joined compacts consented to all provisions of the 1985 Act when Congress consented to the various compacts, as a part of the 1985 Act. The Sited States argued in New York v. United States, et al.,, that because New York had representatives in Congress who supported the 1985 Act, and because New York had accepted surcharge rebate funds, it had acted under the provisions of the 1985 Act and therefore was barred from claiming that the Act was unconstitutional. The Court rejected this argument, stating, "Where Congress excceds its authority relative to the States, therefore, the departure from the constitutional plan cannot be ratified by the "consent" of state officials. ...State official thus cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution. Indeed, the facts of this case raise the possibility that powerful incentives might lead both federal and state officials to view departure from the federal structure to be in their personal interest. Most citizens recognize the need for radioactive waste disposal sites, but few want sites near their homes. As a result, while it would be well within the authority of either federal or state officials to choose where the disposal sites will be, it is likely to be in the political best interest of each individual official to avoid being held accountable to the voters for the choice of location. If a federal official is faced with the alternatives of choosing a location or directing the States to do it, the official may well prefer the latter, as a means of shifting responsibility for the eventual decision. If a state official is faced with the same set of alternatives -- chosing a location or having Congress direct the choice of a location -- the state official may also prefer the latter, as it may permit the avoidance of personal responsibility. The interests of public officials thus may not coincide with the Constitution's intergovernmental allocation of authority. Where state officials purport to submit to the direction of Congress in this manner, federalism is hardly being advanced." [Emphasis supplied.]
The Supreme Court declared the take title provision of the 1985 Act to be unconstitutional and severed it from that Act. This is a fairly simple legal concept: If a provision of law is declared to be unconstitutuional and severed, it is as though that provision never existed. Surely no one is follish enough to believe that the take title provision was unconstitutional and severed only in the State of New York. Surely no one is foolish enough to believe that for states that are members of compacts, the take title provision was not severed from the federal statutes and remains a constitutional part of the 1985 Act.