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New York v. United States

Citation. 505 U.S. 144 (1992)
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Brief Fact Summary.

Petitioners challengedthe Low-Level Radioactive Waste Policy Act and specifically the three incentives provided by the Act that seek to encourage the States to comply with their statutory obligation to provide for the disposal of waste generated within their borders.

Synopsis of Rule of Law.

Under Congress’ spending power, Congress may attach conditions on the receipt of federal funds. Where Congress has the authority to regulate private activity under the Commerce Clause, the Court has recognized Congress’ power to offer States the choice of regulating that activity according to federal standards.


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. Relying on the evidence submitted, Congress authorized States to enter into regional compacts that would have the authority beginning in 1986 to restrict the use of their disposal facilities to waste generated within member States. The Act included no penalties for States that failed to participate in this plan. By 1985, only three approved regional compacts had operational disposal facilities. The Act gave these three compacts the ability to exclude waste from nonmembers and the remaining 31 States had no assured outlet for their low level radioactive waste. Congress provided three incentives to encourage the States to comply with their statutory obligation: monetary incentives, access incentives, and the take title provision.


Can Congress provide incentives – monetary incentives, access incentives, and the take title provision – to encourage the States to comply with their statutory obligation?


Congress may provide monetary incentives and access incentives, but it may not offer the take title provision as an incentive. An instruction to state governments to take title to waste would be beyond the authority of Congress and a direct order to regulate would be beyond the authority of Congress. Thus, Congress lacks the power to offer the States a choice between the two. Unlike the first two sets of incentives, the take title incentive does not represent the conditional exercise of any congressional power enumerated in the Constitution. A choice between two unconstitutionally coercive regulatory processes of the States by directly compelling them to enact and enforce a federal regulatory program may not be given to States by Congress.


Justice Stevens

Under the Articles of Confederation, Congress had the power to issue commands to the States. Because that indirect exercise of federal power proved ineffective, the Framers empowered Congress to exercise legislative authority directly over individuals within the States even if that authority constituted a greater intrusion on State sovereignty. Nothing in the history suggests that Congress may not also impose its will upon States as it did under the Articles.


The take title provision offers state governments a choice of either accepting ownership of waste or regulating according to the instructions of Congress. The Constitution would not permit Congress simply to transfer radioactive waste from generators to state governments. Such a forced transfer would in principle be no different than a congressionally compelled subsidy from state governments to radioactive waste producers. The same is true of the provision requiring the States to become liable for the generators’ damages. This provision would be indistinguishable from a congressional act directing the States to assume the liabilities of certain state residents. Either type of federal action would commandeer state governments into the service of federal regulatory purposes and would for this reason be inconsistent with the Constitution’s division of authority between federal and state governments.

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