State of Mich. v. US
| Decision Date | 28 August 1991 |
| Docket Number | No. 5:90-CV-27.,5:90-CV-27. |
| Citation | 773 F. Supp. 997 |
| Parties | STATE OF MICHIGAN, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Charles C. Schettler, Jr., Asst. Atty. Gen., Frank J. Kelley, Atty. Gen., Environmental Protection Div., John C. Scherbarth, Asst. Atty. Gen., Frank J. Kelly, Atty. Gen., Appellate Div., Lansing, Mich., Anthony P. Hoang, Kenton W. Fulton, U.S. Dept. of Justice, Environment & Natural Resources Div., Gen. Litigation Section, Washington, D.C., for plaintiffs State of Mich., Mich. Dept. of Public Health, Mich. Low Level Radioactive Waste Authority, Mich. Dept. of Management and Budget, Mich. Natural Resources Com'n and Robert A. Bowman, Treasurer of State of Mich.
Thomas J. Gezon and Janice Kittel Mann, Asst. U.S. Attys., John A. Smietanka, U.S. Atty., Grand Rapids, Mich., Louise F. Milkman, U.S. Dept. of Justice, Land & Natural Resources Div., Environmental Defense Section, Kenton W. Fulton, U.S. Dept. of Justice, Environment & Natural Resources Div., General Litigation Section, Washington, D.C., for defendants U.S., Samuel Skinner, as Secretary of Transp. and Richard Thornburgh, as U.S. Atty. Gen.
This case involves the constitutionality of the federal Low Level Radioactive Waste Policy Act of 1980 and the Act's 1985 amendments. 42 U.S.C. §§ 2021b et seq. In their seven-count complaint, plaintiffs State of Michigan et al. (collectively "plaintiff") object to implementation of the legislation on the ground that it violates Michigan's state sovereignty as guaranteed by the Tenth Amendment to the Constitution, the Guarantee Clause, Article IV, Section 4, as well as the state sovereignty "inherent in the formation, ratification, structure, and history of the United States Constitution." Complaint at 35. In addition, plaintiff has pled two causes of action allegedly arising under the National Environmental Protection Act. 42 U.S.C. §§ 4321 et seq. Presently pending is defendants United States of America et al.'s (collectively "defendant") motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. The parties have voluminously briefed the issues raised by the motion and a hearing was held before the Court on May 14, 1991.
Since 1954 the federal government has promoted the use and development of atomic energy for non-military purposes through the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011 et seq. Low Level Radioactive Waste ("LLRW") is a hazardous by-product of nuclear power plants; the use of radioactive materials in medical diagnosis, treatment and research; and the production of consumer and industrial products. The majority of LLRW generated within the state of Michigan is generated at nuclear power plants which are licensed and regulated by the Nuclear Regulatory Commission, a federal agency.
There are currently three sites in the United States for the disposal of LLRW. They are located in South Carolina, Washington, and Nevada. By the end of the 1970s it became clear that the nation needed additional disposal capacity. However, other states were very reluctant to create disposal facilities. In order to relieve the burden on the three sited states, in 1979 Congress began to consider federal solutions for the LLRW problem. In addition, the National Governor's Association ("NGA") established a task force to review and formulate state policy on the crisis. In 1980 the NGA produced a written report entitled Low Level Waste: A Program for Action ("NGA Report"). The report found that "the siting of a low-level nuclear waste facility involves primarily state and local issues which are best resolved at the governmental level closest to those affected." NGA Report at 1. Congress adopted the NGA's recommendations and, in 1980, enacted the LLRW Policy Act in order to give the states the direct responsibility for disposing of LLRW generated within their borders.1
The 1980 Act made each state responsible for providing for the availability of LLRW disposal capacity either within or outside the state. 42 U.S.C. § 2021d(a)(1). The 1980 Act did not provide any penalties but relied on cooperation by the states for its implementation. In 1985 Congress amended the 1980 Act to include the milestones and penalties complained of by Michigan in the present case.
The 1985 Policy Act puts teeth in the requirement that each state provide for the disposal of all LLRW generated within its borders. In this regard, Michigan was required to enact legislation and exercise its executive powers to implement the Policy Act. This included, among other things, rescinding a state law which prohibited the disposal of LLRW in Michigan, appointing LLRW officials, delegating LLRW responsibilities, and developing a siting plan for an LLRW facility.
The 1985 Policy Act also provides that, in order to carry out the intent of Congress, states may enter into interstate regional compacts to effectuate a cooperative disposal policy. Michigan entered into a compact with Iowa, Minnesota, Ohio, Indiana, Missouri, and Wisconsin ("the Midwest Compact"). In June of 1987 the Midwest Compact selected Michigan as the first state site for an LLRW disposal facility. As a result Michigan was required to site a disposal facility to accommodate the Midwest Compact members' LLRW. The disposal site must be able to safely contain class C LLRW for 500 years.
On or about July 24, 1991, while defendant's motion to dismiss was pending, Michigan was expelled from the Midwest Compact by vote of the other compact members.2 However, this expulsion does not relieve Michigan of its responsibilities under the Act. The same deadlines and obligations apply to non-member states as to compacts. Accordingly, a cognizable case or controversy exists under the present facts.
Section 5(e) of the Policy Act sets forth the penalties to be applied to non-member states for failure to comply with the Act's milestones. If by January 1, 1992, Michigan fails to apply for a license to operate its own LLRW disposal facility, generators of LLRW in this state may have to pay a surcharge of up to $120 per cubic foot of LLRW disposed of at sites outside Michigan. This surcharge is designed to encourage states to take the required action. H.R.Rep. No. 314, 99th Cong., 1st Sess., Pt. 1 at 31 (1985).
Section 5(d)(2)(C)(ii) of the 1985 Policy Act provides that if a non-member state fails to provide for the disposal of all LLRW generated within that state by January 1, 1996, the state:
upon the request of the generator or owner of the waste, shall take title to the waste, be obligated to take possession of the waste, and shall be directly liable for all damages directly or indirectly incurred by such generator or owner as a consequence of the failure of the state to take possession of the waste ... after January 1, 1996.
Accordingly, unless Michigan either sites an LLRW disposal facility by 1996 or makes some other arrangement for the disposal of LLRW generated in Michigan, it will take title to all LLRW generated within its borders. The take title provision of the Policy Act is the major incentive provided by Congress to ensure that states comply with the law. It is also the major impetus for the present lawsuit. Plaintiff asserts that defendant is constitutionally precluded from requiring compliance with both the current milestones of the Policy Act as well as the 1996 take title requirement. It is also urged that the 1996 penalties are not merely a future possibility. Because of the long-term planning and budgetary concerns of siting an LLRW disposal facility, the state is required to make present allocations of resources in anticipation of the 1996 milestone.
Defendant's motion to dismiss is brought pursuant to Federal Rule of Civil Procedure 12(b)(6). A motion under Rule 12(b)(6) tests whether a claim has been adequately stated in the complaint. The Court's inquiry at this point, before the reception of any evidence by affidavit or admission, is merely whether the challenged pleading sets forth allegations sufficient to make out the elements of a right to relief. In making this determination, the allegations in the pleading are taken at "face value", California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 515, 92 S.Ct. 609, 614, 30 L.Ed.2d 642 (1972), and should be construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). "Well pleaded facts are taken as true, and the complaint is construed liberally in favor of the party opposing the motion." Davis H. Elliot Co. v. Caribbean Utilities Co., 513 F.2d 1176, 1182 (6th Cir.1975). All reasonable inferences which might be drawn from the pleading must be indulged. Fitzke v. Shappell, 468 F.2d 1072, 1076 n. 6 (6th Cir.1972). The court must deny the motion to dismiss unless it can be established beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983), cert. denied, 469 U.S. 826, 105 S.Ct. 105, 83 L.Ed.2d 50 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
The Federal Rules of Procedure provide that if matters outside the pleadings are presented to the court, the court shall treat a motion to dismiss as one for summary judgment so long as the parties have been given the opportunity to present all material made pertinent to the motion. F.R.Civ.P. 12(b) and (c). In the present case both parties have presented evidence, especially regarding the State of Michigan's participation in the federal political process leading up to passage of the LLRW Policy Act. As discussed below, this issue of fact is paramount in deciding the constitutionality of the Act. To the extent the parties have presented matters...
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State of Mich. v. U.S.
...finding that Michigan's constitutional challenges to the Policy Act, Counts I through V, were without merit. Michigan v. United States, 773 F.Supp. 997 (W.D.Mich.1991). With regard to Counts VI and VII, the district court concluded that Michigan had standing to assert its NEPA claims only i......