Deputy A.G. Says:
  Nevada Fight Against Nuke Dump
  Relies on Sagebrush Rebel Axiom

   by Steve Miller
  copyright 1996, Electric Nevada

You hear it often.
"Nevada ought to strike a deal," the voices say.
"The nuclear dump is going in at Yucca Mountain anyway, so Nevada at least ought to make some money off it."

But the State attorney who'd be Nevada's point man in any court fight against federal imposition of a high-level nuclear waste site says Nevada's legal case is much stronger than most people realize.
"A lot of people ... don't have a clue whether the State has a chance or not," says Deputy Attorney General Harry Swainston.
"I don't think we're necessarily going to lose, We've got good things to argue."
One of the powerful arguments Nevada will present, he says, is well-known to followers of the decades-long anti-Washington struggle in the West commonly known as the 'Sagebrush Rebellion.'
That argument is the equal footing doctrine.
Swainston, a long-time member of Nevada's Office of the Attorney General, has served under both Republicans and Democrats. He gave Electric Nevada a guided tour of the essentials of Nevada's case this week.
Even then, he said, "I've just touched the tip of the iceberg."
The Deputy A.G., who successfully represented Nevada in court when the State stopped storing low-level nuclear waste, says an important legal precedent cited in that case will also play a big role when and if Nevada faces the imminent prospect of getting "tagged" with the nuclear dump.
What had happened, he says, was that U.S. Ecology, the company that had held the contract for maintenance of the low-level site at Beatty, Nevada, had sued the State.
"They said, 'You can't just close us down, because we have a contract with you... and you're violating the terms of that contract. You're taking our contract rights without compensation, and that's unconstitutional.'"
"When they made that argument," Swainston told EN, "I wrote a brief for the state. And basically it called upon an old case called Munn v. Illinois.
"That case had to do with grain elevators in Chicago. I think it was in about 1890.
"The grain elevator operators were charging about anything they thought the traffic would bear, and ... the State of Illinois decided that they were going to regulate the prices the elevator operators could charge for storing this grain.
"And these grain operators said, 'The hell you can; this is our private property. We can charge anything we want to.'
When the case went to the United States Supreme Court, says Swainston, "the Court agonized over it for a couple of years, because both sides had good arguments.
"And what the Court finally said was that people who own property, who use that property in a way that affects the public interest, in effect make the public their partner in the enterprise. And [so] the public, as a partner, can regulate the enterprise, or prohibit it altogether."
It's a very old principle of law, says Swainston, going all the way back to the common law of England, and the very basis, in principle, of any government's police power.
By the time Swainston prepared the brief citing Munn v. Illinois, he says, the attorneys for U.S. Ecology, the low-level waste management company, had been feeling their oats, feeling they had the State on the run.
But "when they saw the argument on Munn v. Illinois," says Swainston, "they caved in. And they agreed to leave the state.
"That," says the deputy AG, "is a powerful case."
So Munn v. Illinois helped rid the state of Nevada of low-level nuclear waste site.
Hoe would it help prevent what former U.S. Senator Chic Hecht called "the nuclear suppository?"
Swainston explains.
"Let's assume that the generators of the nuclear waste -- the nuclear utilities -- were bringing the stuff to Yucca Mountain.
"By attempting to dispose of it there, they would be making the public in Nevada their partner, and so the State of Nevada [on the precedent of Munn v. Illinois], could regulate that or prohibit it altogether.
"In fact the State has prohibited it altogether, because it has a law that makes it unlawful for any person or any governmental entity, to store high-level radioactive waste in the state," says Swainston.
It is because the nuclear utilities know they can't thus, "do it themselves," he says, that they began lobbying the U.S. Congress.
In essence what Congress said, when passing both the Nuclear Waste Policy Act of 1982 and then a number of amendments in 1987, argues Swainston, is that the federal government has supremacy over the state, and so it can take title to the waste and then dispose of it at Yucca Mountain, on federal property.
But, he asks, when the federal government does it this way, is it not -- just as would the nuclear utility companies be doing, if they were carting in the waste -- making the public in the State of Nevada its de facto partner?
"Constitutionally," says Swainston, "you would think so."
And because storage of nuclear waste -- like any issue of possible public danger -- clearly involves the police powers of this (or any) state, he says, any effort by Congress to foist the repository on Nevada against the state's will, would be to deprive the state of some of those police powers.
As such, says Swainston, the Congress would be violating the equal footing doctrine. That doctrine of law, dating from the era of the Articles of Confederation, and incorporated into the U.S. Constitution from its beginning, holds that each new state, upon entry into the Union, assumes rights and sovereignty equal to that of the original 13 states after the American Revolution.
"The equal footing doctrine had to do with political rights and sovereignty," he says, "and the case that illustrates that better than any case, is probably Coyle v. Oklahoma.
"In that particular case, the state of Oklahoma decided that they were going to move their capitol -- from Guthrie to Norman, I believe. But in their act of admission, it was specified by the Congress that they couldn't move their capitol for a certain number of years.


And so the question was whether Congress's prohibition was constitutional."
The answer of the Supreme Court was 'no,' notes Swainston.
"The Supreme Court said that Congress's prohibition had to give way, because the states -- under the equal footing doctrine -- had political rights and constitutional rights which Congress simply cannot infringe upon."
A state's right to choose where it places its capitol is one of those fundamental aspects of its political sovereignty, said the court, and thus any attempt by Congress to deprive a state of that sovereignty is unconstitutional.
"That statement by the court --about the deprivation of an important class of police powers -- is the over-arching principle that gets us, I think, to Yucca Mountain," says Swainston.
"There are very few things that really establish a state. One is its police power and two is its power to tax, and three is the eminent domain power.
"Without those three things, you don't really have too much. So, when the federal government participates in commerce, and comes in and stores this stuff at Yucca Mountain, what is it doing, except depriving the state of an important class of police powers?"
Swainston says this is especially apparent when one considers how the entire question of the disposal of spent-fuel first arose.
"It arose in the state of California in the case of PG&E v. California Energy Commission," he says.
"They were trying to support a regulation that said, 'No more power plant construction, until you've solved the nuclear waste problem.'"
The United States Supreme Court ruled for the California Energy Commission. The grounds were that California's regulation was issued in connection with its interest in its environment, and its economic interest -- both of which are part of the state's basic police powers.
"As a consequence," says Swainston, "that's why we have this whole problem -- because nuclear utilities can't build any more power plants, until they solve the waste problem.
"The important thing for the state of Nevada to realize is, if the United States Supreme Court has not preempted California from creating this problem, based on its environment and economics, why can't the State of Nevada, under its equal footing rights, say, 'We're not going to be the solution to the problem that California has created' -- particularly where the reasons for us not wanting this stuff, is based on protection of our environment and our economy?"
Swainston also argued that the federal government's legal position in any eventual court case would be weakened by another fact -- that there is no enumerated power in the U.S. Constitution which authorizes it to so impose itself on a state.
The commerce clause, which provides for the regulation of commerce, does not work, he says, because, in taking over in place of the nuclear utilities, the federal government would be operating as a participant in interstate commerce, rather than a regulator of it.
"There is a difference between the commerce clause power of the federal government and when the federal government becomes a participant in commerce.
"And in fact, there are quite a few cases that make that distinction, as far as states are concerned. When states become a participant in commerce, the commerce clause of the U.S. Constitution no longer applies."
That's because there is no regulation, legally speaking; the states are operating as participants, he says.
"So you wonder what the power of the United States government to do this is at all. Because in order to have supremacy, you must be able to identify some enumerated power that would permit it to do that.
"The commerce clause doesn't seem to work, because [the federal government is] a participant. The general welfare clause doesn't work because that arises under the spending power, and you don't get to the spending power unless it's a general tax revenue that supports a federal activity. And here it's just simply an assessment on the rate payers that use this stuff, or the utilities. So the general welfare clause doesn't work.
"The property clause doesn't work either, although I'm not sure the courts understand why it doesn't yet: because the property clause is not one of the Article One powers of the Congress. It's a power that occurs in Article Four.
"Therefore for it to have any preemptive or supremacy effect, it has to be tied to another power, such as the commerce clause power, or the national defense power, or something.
"Now, the national defense would work for the stuff that the federal government produces in connection with the production of arms. And we would probably have to accept that at Yucca Mountain . But that isn't the stuff that we're worried about. We're worried about the spent fuel, and it's been fairly well accepted that they wouldn't use Yucca Mountain for high-level waste if it wasn't coupled with a spent-fuel facility too."
He says there are at least 19 individual clauses in the U.S. Constitution that make federal imposition of a nuclear waste depository in Nevada unconstitutional. He cited them in 1990 when he represented Nevada in Nevada v. Watkins, a suit against the then-head of the U.S. Department of Energy, Admiral James Watkins. The basic issue behind Nevada's suit was the proposed Yucca Mountain facility.
"Of course, the Court took the narrow view in that case, and said, 'Well, the state hasn't been selected for anything yet, and all the federal government is doing is studying Yucca Mountain, for federal purposes, and they can do that under the property clause.'
"And that's right. They just said we're premature in some of our arguments. But there are about 19 or so clauses... Some of them we may bring up again, some of them we may not."
Swainston, a former scientist, worked out at the Nevada Test Site, for about 10 years, in what he calls "a former life."
A physicist and an electrical engineer, he was involved in the testing of nuclear bombs.

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