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Illinois v. General Elec. Co.

Citation: 12 ELR 20793
No. Nos. 81-2768, -2778, 683 F.2d 206/18 ERC 1254/(7th Cir., 07/13/1982)

The Seventh Circuit rules that the Illinois Spent Fuel Act, which prohibits the shipment of spent nuclear fuel into the state for storage, violates the Commerce Clause of the Constitution and is preempted by the Atomic Energy Act (AEA).Appellees sought a declaratory judgment in district court that the Spent Fuel Act was unconstitutional. The state then brought a state court action under the Act to enjoin appellees' planned shipment of out-of-state spent fuel to an in-state storage facility and that suit was removed to federal court.

Initially, the court rules that the district court erred in refusing to remand the state's lawsuit to state court since that action arose under Illinois, not federal, law. Next, the court rules that it has jurisdiction over the federal complaint. Even though the state action was not filed until after the federal action, there is an actual controversy since appellees' contemplated activities would clearly be in violation of the Spent Fuel Act, subjecting appellees to civil penalties. In addition, the court rules that appellees' cause of action is not merely a federal defense to a state action but that it arises under federal law since appellees claim a constitutional right to ship spent nuclear fuel into, and to receive it in, illinois for storage notwithstanding the Spent Fuel Act. In addition, the district court was not required to abstain from exercising jurisdiction since the state's interest in redressing violations of its laws in its own courts was not impaired by the federal lawsuit.

Turning to the merits, the court holds that the Spent Fuel Act arbitrarily burdens interstate commerce in violation of the Commerce Clause because it arbitrarily forbids interstate but not intrastate shipments of spent nuclear fuel. Therefore, it is irrelevant that the material concerned is "bads," i.e. waste, rather than "goods." Alternatively, the court rules that the Act is unconstitutional under the Supremacy Clause since the AEA preempts state regulation of the storage and shipment for storage of spent nuclear fuel. In addition, although § 116 of the Clean Air Act authorizes state regulation of air pollution from nuclear waste storage facilities, it does not authorize the Spent Fuel Act. The Clean Air Act only limits federal powers under that statute, not the AEA, but even if it did not, the Spent Fuel Act does not constitute a rational pollution-control measure.

Counsel for Appellants
Daniel Harris
Office of the Attorney General
160 N. La Salle St., Rm. 800, Chicago IL 60601
(312) 793-3875

Counsel for Appellees
William Gordon, John Carroll, Michele Odorizzi
Mayer, Brown & Platt
231 S. La Salle St., Rm. 1955, Chicago IL 60604
(312) 782-0600

Before WOOD and POSNER, Circuit Judges, and FOREMAN, Chief Judge.*