Pre-emption or police powers? Who wins?

The Court of Appeals for the 10th Circuit issued a fairly standard ruling this week, as reported by the Denver Post.[1]  The issue in the case, as stated by Judge Ebel, “is whether Congress’s mandate that the Army destroy these chemical weapons at the Depot by 2017 preempts Colorado’s enforcement against the Depot of its regulation prohibiting storage of any hazardous waste.”[2]  Given Congress’s clear and continued attention to the destruction of hazardous chemical weapons, the federal government has occupied the area, even though Congress has also granted some authority to the states to deal with the issue as well.

According to the Denver Post, the state is considering whether to appeal this ruling to the Supreme Court.  Given the unanimous affirmance of the District Court opinion, would Colorado have any hope of a reversal by the justices?  Where does this issue fall on the scale of state’s rights versus federal power.  Clearly, there is a significant and compelling health concern here.  The storage of chemical weapons is not foolproof; neither is their destruction.  As the Oregonian reported in 2011 after the Umatilla Depot finished incinerating the last of its chemical weapons, some dating back to WWI, “[a] palpable sense of relief accompanied the final incineration. For the nearby Columbia River towns of Hermiston, Irrigon, Umatilla, Stanfield and Boardman, with a combined population of 40,000, the destruction lifts a decades-old specter of a potential accident or explosion releasing a chemical cloud.”[3]  Similar concerns affect communities across the Columbia River in Washington State.  There the Hanford site stores nuclear waste and this facility is prone to leaks.  The state of Washington is displeased with the pace and the budget allotted to the cleanup of this site.  According to the 10th Circuit’s ruling, neither Washington nor Oregon could not place any demands on the facilities to speed their processes or take greater care.

Now, in Maine v. Taylor 477 US 131 (1986), the Supreme Court allowed a state to infringe on commerce between the states if there was a significant potential harm to the state’s ecology.  However, in this case Congress had been silent.  Given the continued extensions of deadlines for destruction and cleanup in both Colorado and Washington does the state’s interest in significant environmental damage and health risks rise to a point that might tip the scales?  And is the Roberts Court the court that will readjust those scales?  The legacy of the commerce and federalism decisions from the past two decades indicates that states are provided more deference in many of their fights against federal encroachment, Raich v. Gonzalez 545 US 1 (2005), NFIB v. Sebelius No. 11-393 (2012) and Arizona v. US No. 11-182 (2012) notwithstanding.  It seems that if there were an interest that could lead to an exemption to the pre-emption doctrine, this might be it, particularly if there is some ambiguity within congressional law and a documented lack of federal progress on the health concerns of the state.

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Filed under The Commerce Power, The Separation of Powers System in Action

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