New York v. United States,
505 U.S. 144 (1992)

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No. 91-543. Argued March 30, 1992-Decided June 19, 1992*

Faced with a looming shortage of disposal sites for low level radioactive waste in 31 States, Congress enacted the Low-Level Radioactive Waste Policy Amendments Act of 1985, which, among other things, imposes upon States, either alone or in "regional compacts" with other States, the obligation to provide for the disposal of waste generated within their borders, and contains three provisions setting forth "incentives" to States to comply with that obligation. The first set of incentives-the monetary incentives-works in three steps: (1) States with disposal sites are authorized to impose a surcharge on radioactive waste received from other States; (2) the Secretary of Energy collects a portion of this surcharge and places it in an escrow account; and (3) States achieving a series of milestones in developing sites receive portions of this fund. The second set of incentives-the access incentives-authorizes sited States and regional compacts gradually to increase the cost of access to their sites, and then to deny access altogether, to waste generated in States that do not meet federal deadlines. The so-called third "incentive"-the take title provision-specifies that a State or regional compact that fails to provide for the disposal of all internally generated waste by a particular date must, upon the request of the waste's generator or owner, take title to and possession of the waste and become liable for all damages suffered by the generator or owner as a result of the State's failure to promptly take possession. Petitioners, New York State and two of its counties, filed this suit against the United States, seeking a declaratory judgment that, inter alia, the three incentives provisions are inconsistent with the Tenth Amendment-which declares that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States" -and with the Guarantee Clause of Article IV, § 4-which directs the United States to "guarantee to every State ... a Republican Form of Government." The District Court dismissed the complaint, and the Court of Appeals affirmed.

*Together with No. 91-558, County of Allegany, New York v. United States et al., and No. 91-563, County of Cortland, New York v. United States et al., also on certiorari to the same court.



1. The Act's monetary incentives and access incentives provIsIOns are consistent with the Constitution's allocation of power between the Federal and State Governments, but the take title provision is not. Pp. 155-183.

(a) In ascertaining whether any of the challenged provisions oversteps the boundary between federal and state power, the Court must determine whether it is authorized by the affirmative grants to Congress contained in Article 1's Commerce and Spending Clauses or whether it invades the province of state sovereignty reserved by the Tenth Amendment. Pp. 155-159.

(b) Although regulation of the interstate market in the disposal of low level radioactive waste is well within Congress' Commerce Clause authority, cf. Philadelphia v. New Jersey, 437 U. S. 617, 621-623, and Congress could, if it wished, pre-empt entirely state regulation in this area, a review of this Court's decisions, see, e. g., Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 288, and the history of the Constitutional Convention, demonstrates that Congress may not commandeer the States' legislative processes by directly compelling them to enact and enforce a federal regulatory program, but must exercise legislative authority directly upon individuals. Pp. 159-166.

(c) Nevertheless, there are a variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program consistent with federal interests. As relevant here, Congress may, under its spending power, attach conditions on the receipt of federal funds, so long as such conditions meet four requirements. See, e. g., South Dakota v. Dole, 483 U. S. 203, 206-208, and n. 3. Moreover, where Congress has the authority to regulate private activity under the Commerce Clause, it may, as part of a program of "cooperative federalism," offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation. See, e. g., Hodel, supra, at 288, 289. Pp. 166-169.

(d) This Court declines petitioners' invitation to construe the Act's provision obligating the States to dispose of their radioactive wastes as a separate mandate to regulate according to Congress' instructions. That would upset the usual constitutional balance of federal and state powers, whereas the constitutional problem is avoided by construing the Act as a whole to comprise three sets of incentives to the States. pp. 169-170.

(e) The Act's monetary incentives are well within Congress' Commerce and Spending Clause authority and thus are not inconsistent with the Tenth Amendment. The authorization to sited States to impose surcharges is an unexceptionable exercise of Congress' power to enable

Full Text of Opinion

Primary Holding

The federal government cannot commandeer a state into enacting a certain law.


The Low-Level Radioactive Waste Policy Amendments Act of 1985 resulted from a plan developed by the National Governors' Association. At the time, only three states had disposal sites for radioactive waste. Under the Act, all states were required to join a regional waste compact, create a disposal site in the state, or otherwise find a way to dispose of their own waste. Rather than requiring the three states to handle all of the nation's radioactive waste, the Act required the other states to provide access to active sites within seven years. The federal government encouraged states to comply with the time window by allowing states with disposal sites to refuse access to states that did not comply and authorizing them to impose a surcharge on the use of their sites, which would be returned to the other states once they complied. Any state that failed to comply within the seven-year period would be forced to take title to all waste generated within its borders or pay damages to in-state waste generators.

New York failed to either join a regional waste compact or build its own facility. It argued that the Tenth Amendment protected its state sovereignty against compliance with the Act, and the states that had developed facilities intervened in the action. The lower court dismissed the case.



  • Sandra Day O'Connor (Author)

The first two incentives of the federal plan are appropriate, but the third is not. The federal government may condition funding on compliance or offer states a choice between using a federal plan or having their own laws preempted by federal laws, but they cannot force states to take title to the waste or accept liability for disposing of it. States should not be held responsible for their waste generators, which should be required to shoulder these burdens. Federalism concerns prevent Congress from issuing orders to state officials. Although the Constitution gives that authority to federal courts, it is not among the enumerated powers of Congress, so this action violates the Tenth Amendment. States may not agree to give up their sovereignty, even though this federal law resulted from a compromise among them.

Concurrence/Dissent In Part

  • Byron Raymond White (Author)

The states joined together in creating this law as a compromise among themselves that they asked Congress to ratify. No federalism concerns thus should arise from this collaborative process. New York played a role in crafting the law and already has received benefits from it, so it should be prevented from seeking to invalidate it. States may agree to give up their sovereignty in certain areas.

Concurrence/Dissent In Part

  • John Paul Stevens (Author)

The federal government should be allowed to require states to implement its laws. This traditionally has been a power that it has exercised in many areas, including railroads, schools, prisons, elections, and the draft.

Case Commentary

This case illustrates the importance of the separation of powers between state and federal governments. Commandeering a state to carry out federal requirements leaves Congress, which was responsible for the law, without accountability to the public for its decisions and casts accountability on a state government that had no role in creating the law.

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