Battle over Control of Low-Level Radioactive Waste: Some States Are Overstepping Their Bounds

I. INTRODUCTION In 1979, all existing nuclear power plants, government and private, disposed of their low-level radioactive waste (LLRW)1 at only three sites: one in Nevada, one in Washington, and one in South Carolina,2 The governors of two of the states threatened to block out-of-state waste from entering the sites in their states because they believed that it was inequitable for their states to dispose of the entire nation's LLRW.3 To appease these three governors and to avoid the national crisis of having no place to dispose of LLRW, Congress enacted the Low-Level Radioactive Waste Policy Act (LLRW Policy Act)4 to encourage every state to take responsibility for its own waste, to enable states to form compacts, to choose sites for and license regional disposal facilities, and to encourage development of other sites to dispose of LLRW.5 Twenty years later, the nation still only has three active LLRW disposal facilities, and disposal of radioactive waste remains a hot political issue.6 As the issue continues to heat up, states are taking action to prevent waste from entering their borders.7 However, in some cases, this state action is undermining the federal scheme of atomic energy regulation.8 Specifically, three states have shifted the national issue of LLRW disposal into the local political arena by requiring a prospective facility to obtain approval from the legislature, the governor, and/or the voters.9 These statutes have overstepped their authority because the political approval statutes violated the Supremacy Clause of the United States Constitution. As this Comment was going to press, the Utah Legislature proposed and passed a bill, Senate Bill 24, that bans Class B and C LLRW from being disposed in the state of Utah.10 LLRW regulation is governed by a complicated scheme in which the United States has ceded some of its regulatory authority to the states, with the mandate that state LLRW programs be coordinated and compatible with federal goals.11 If a state enacts a statute that conflicts with federal goals for LLRW, then the statute is preempted by federal law.12 This Comment examines both the political approval requirements and Utah SB 24 and concludes that an outright ban of LLRW and some political approval requirements are unconstitutional under the Supremacy Clause because they conflict with the federal goal to encourage efficient disposal for LLRW. Part II discusses the federal statutory scheme that regulates atomic waste disposal and three state statutes that require a prospective LLRW facility to obtain political approval.13 Part III discusses Supreme Court authority on federal conflict preemption and other decisions that give a framework to analyze the constitutionality of political approval statutes. Part IV argues that federal law preempts state statutes that ban LLRW disposal, that function in the nature of a de facto ban of LLRW, or that regulate LLRW in a manner that is not reasonably related to achieving a legitimate state interest. Part V offers a brief conclusion. The scope of this Comment is limited to whether federal law preempts these statutes. It does not suggest whether preempting state statutes is the best policy decision, nor does it analyze states' legitimate policy concerns surrounding disposal of LLRW within their borders. II. BACKGROUND This Section gives background on federal regulation of nuclear power and explains the complex system of regulating LLRW. Initially, this Section outlines federal law governing nuclear power and explains the congressional system of delegating some responsibility over LLRW to the states. In conclusion, this Section outlines three relevant state statutes that regulate LLRW. A. The Federal Scheme of Regulating Low-Level Radioactive Waste The federal government had a monopoly over the operation of nuclear-power facilities until 1954, when Congress enacted the Atomic Energy Act (AEA).14 The AEA permitted private entities to own nuclear power facilities because Congress believed that the private sector could serve the national interest in developing nuclear power if the federal government encouraged the private sector to develop atomic energy for peaceful purposes, supervised by a federal system of regulation and licensing. …