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Washington State Bldg. & Constr. Trades Council AFL-CIO v. Spellman

Citation: 12 ELR 21067
No. Nos. 81-3452 et al., 684 F.2d 627/18 ERC 1073/(9th Cir., 08/17/1982) Aff'd

The court upholds a district court decision, 11 ELR 20877, that Washington's Radioactive Waste Storage and Transportation Act, which prohibits transportation and storage within the state of low-level radioactive wastes produced outside the state, violates the Supremacy and Commerce Clauses of the Constitution. The court first rules that the public interest group that sponsored the initiative was entitled to intervene as a matter of right under Rule 24(a) of the FEDERAL RULES OF CIVIL PROCEDURE, but that the district court's error was harmless because the group participated fully in the argument on appeal. The court then holds that the initiative violates the Supremacy Clause since Congress has not waived its authority over the regulation of the disposal of radioactive waste. While § 274 of the Atomic Energy Act and the Low-Level Waste Act grant some authority to the states to regulate waste disposal, they do not grant the authority to exclude such wastes without congressional approval. The initiative also violates the Commerce Clause. First, it treats in-state and out-of-state parties unevenly. In addition, while it serves a legitimate state interest in the protection of the public health and welfare it does so in a discriminatory manner. The initiative also has more than an incidental effect on interstate commerce since Washington receives two-fifths of the country's low-level radioactive waste. Finally, the initiative fails to qualify for either the market participant or quarantine theory exceptions to the Commerce Clause.

Counsel for Appellants
Kenneth O. Eikenberry, Attorney General
1155 Dexter Horton Bldg., Seattle WA 98104
(206) 464-7744

Michael W. Gendler
1424 4th Ave., Seattle WA 98104
(206) 621-8868

Counsel for Appellees
Robert L. Gunter, Michael B. Crutcher
Preston, Thorgrimson, Ellis & Holman
2000 IBM Bldg., 1200 5th Ave., Seattle WA 98101
(206) 623-7580

Before GOODWIN and POOLE, Circuit Judges, and EAST*, District Judge.