Federalism
Constraints on Congressional Power
New York v. United States (1992)
505 U.S. 144 (1992)
Decision: Affirmed in part and reversed in part
Vote: 6-3
Majority: O’Connor, joined by Rehnquist, Scalia, Kennedy, Thomas, as well as White, Blackmun, and Stevens (parts III-A and III-B only)
Concur/dissent: White, joined by Blackmun and Stevens
Concur/dissent: Stevens
Justice O’CONNOR delivered the opinion of the Court.
These cases implicate one of our Nation’s newest problems of public policy and perhaps our oldest question of constitutional law. The public policy issue involves the disposal of radioactive waste: In these cases, we address the constitutionality of three provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985 … The constitutional question is as old as the Constitution: It consists of discerning the proper division of authority between the Federal Government and the States. We conclude that while Congress has substantial power under the Constitution to encourage the States to provide for the disposal of the radioactive waste generated within their borders, the Constitution does not confer upon Congress the ability simply to compel the States to do so. We therefore find that only two of the Act’s three provisions at issue are consistent with the Constitution’s allocation of power to the Federal Government.
The waste must be isolated from humans for long periods of time, often for hundreds of years. Millions of cubic feet of low level radioactive waste must be disposed of each year …
As a result, since 1979 only three disposal sites— those in Nevada, Washington, and South Carolina—have been in operation. Waste generated in the rest of the country must be shipped to one of these three sites for disposal. …
In 1979, both the Washington and Nevada sites were forced to shut down temporarily, leaving South Carolina to shoulder the responsibility of storing low level radioactive waste produced in every part of the country. The Governor of South Carolina, understandably perturbed, ordered a 50% reduction in the quantity of waste accepted at the Barnwell site. The Governors of Washington and Nevada announced plans to shut their sites permanently …
Faced with the possibility that the Nation would be left with no disposal sites for low level radioactive waste, Congress responded by enacting the Low-Level Radioactive Waste Policy Act … Congress declared a federal policy of holding each State “responsible for providing for the availability of capacity either within or outside the State for the disposal of low-level radioactive waste generated within its borders … ” The 1980 Act authorized States to enter into regional compacts that, once ratified by Congress, would have the authority beginning in 1986 to restrict the use of their disposal facilities to waste generated within member States … The 1980 Act included no penalties for States that failed to participate in this plan.
By 1985, only three approved regional compacts ha