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

Citation: 11 ELR 20877
No. No. C-81-154-RJM, 518 F. Supp. 928/16 ERC 1491/(E.D. Wash., 06/26/1981)

The court rules that Washington's Radioactive Storage and Transportation Act of 1980, which bans the storage of non-medical radioactive waste generated outside the state and the transportation of such waste to any storage site within the state, violates the Commerce Clause and the Supremacy Clause of the United States Constitution. The Act violates the Supremacy Clause because it purports to regulate legitimate federal activity without an express congressional waiver of sovereignty. In addition, federal law preempts any state ban on high-level radioactive waste, and Congress has not given the State of Washington the authority to ban the storage or transport of low-level radioactive waste. Turning to the Commerce Clause, the court initially determines that the movement of radioactive waste in interstate commerce constitutes "commerce" for constitutional purposes. The Act violates the Commerce Clause because it facially and substantively discriminates against interstate commerce on the basis of the origin of the waste, does not effectuate a legitimate state purpose, and will have more than an incidental effect on interstate commerce. Moreover, federal legislation has established a pervasive scheme of nuclear power regulation that leaves no room for state legislation like the statute at issue.

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

Counsel for Defendants
Michael Hanbey, Kenneth MacIntosh, Ass't Attorneys General
1155 Dexter Horton Bldg., Seattle WA 98104
(206) 464-7045

Thomas S. Martin, Acting Ass't Attorney General; Dennis G. Linder, Brook Hedge, Paul A. Gauckler, Thomas W. Millet
Civil Division
Department of Justice, Washington DC 20530
(202) 633-2815

Counsel for Amicus Curiae Michael W. Gendler
Michael W. Gendler
654 Colman Bldg., Seattle WA 98104
(206) 621-8868