30 ELR 20174 | Environmental Law Reporter | copyright © 1999 | All rights reserved

Entergy Arkansas, Inc. v. Nebraska

No. 4:98CV3411 (68 F. Supp. 2d 1093, 49 ERC 1339) (D. Neb. September 15, 1999)

ELR Digest

The court holds that an interstate radioactive waste commission can sue a member state for violating the good-faith provisions of a radioactive waste compact. The court first holds that the Eleventh Amendment does not bar the commission's suit against the state. Congress has the plenary power to attach enforcement conditions to a compact. A signatory state to the compact has no immunity from suit by a Compact Clause creation because that state had no sovereignty over the enforcement mechanism chosen by Congress in the compact. Likewise, Compact Clause creations appropriately possess the power to sue a signatory state in whatever venue Congress gives as an option in the compact.

In addition, the court holds that the state explicitly consented to the suit brought by the commission when the state signed the compact. Specifically, the state obligated itself to exercise good faith, and if it did not act in god faith the commission was required to bring suit against the state anywhere the commission chose. The state retained no right to veto such a suit. The state also agreed that its laws were subservient to the compact in the event of an inconsistency and that it would not enforce any law or regulation inconsistent with the compact. Moreover, U.S. Supreme Court precedent supports the commission's construction of the compact, and allowing the state's Eleventh Amendment argument would render the compact unenforceable.

[Prior decisions in this litigation are published at 24 ELR 20434 and 21079 and 29 ELR 21277 and 21415.]

The full text of this decision is available from ELR (14 pp., ELR Order No. L-116).

Counsel for Plaintiffs
John P. Heil
Baird, Holm Law Firm
1500 Woodmen Tower, Omaha NE 68102
(402) 344-0500

Counsel for Defendants
Linda L. Willard
Attorney General's Office
2115 State Capitol
P.O. Box 98920, Lincoln NE 68509
(402) 471-2682

[30 ELR 20175]


30 ELR 20174 | Environmental Law Reporter | copyright © 1999 | All rights reserved