Marijuana, Radioactive Waste and Federal Sovereignty

As Matt Berg reported in MJINews on December 21, 2014, the states of Nebraska and Oklahoma, both of them contiguous with Colorado, have asked the U.S. Supreme Court to enforce the supremacy of federal law, which of course as embodied in the Controlled Substances Act of 1970 still regards the possession of marijuana as a crime.

And as Berg noted, an official with the Kansas AG’s office has made sympathetic sounds about this lawsuit, though Kansas has not joined.

How great, or weak, are the merits of the lawsuit, if we abstract from the politics and consider it solely as a legal/constitutional question? It turns out that answering this question requires us to think about the proper disposal of low-level nuclear waste. For that was also (in the 1980s and into the decade that followed) the subject of intense interstate disputes. Some states disapproved of the fact that they had become the disposal site for waste generated elsewhere.

What does any of that have to do with marijuana? On the face of it, not a lot. But if we can abstract a bit: in both cases the federal government was/is in a position to act as umpire when a state or states claim that it is being or may be harmed by the spill-over effects of something going on outside of its border.


Supreme Does Not Mean Commandeering

Yes, Article VI of the Constitution says that Constitution and the laws of the United States “shall be the supreme law of the land.” That means, as Justice John Marshall put it back in 1819, that the federal government “though limited in its power, is supreme within its sphere of operation.”

In practical terms, at a minimum, this means that Colorado may not nullify the operation of the federal laws within its territory. But Colorado doesn’t purport to do that. Indeed, insofar as anyone is nullifying the operation of the federal laws within the legalizing states, it is the federal government itself that has moved in that direction.

As to what else the supremacy clause means, that isn’t entirely clear. But one point is straightforward; the federal government may not simply “commandeer” the states as instruments of a federal policy. The feds may not deputize state officials, making them pseudo-federal officials. Any effort at commandeering goes beyond supremacy within its own “sphere,” to use Marshall’s word, and seeks to dissolve a separate sphere.


Radioactivity and NIMBY Debates

Colorado’s attorneys, who promise to resist the lawsuit, will surely argue that their neighbors are demanding that the CSA be construed as a commandeering statute. They will quote the language of the Supreme Court in 1982 (FERC v. Mississippi), “[T]his court never has sanctioned explicitly a federal command to the states to promulgate and enforce laws and regulations.”

One of the key cases in the more recent development of the anti-commandeering principle is New York v. United States (1992). This is the decision that arose from the intense debates of the time about the disposal of low-level radioactive waste: national plans; regional compacts; state plans; and the objections of local activists. The local activists sometimes seemed, from the point of view of decision makers at all levels, to be complaining that though waste must go somewhere, it should just go “not in my back yard” (NIMBY).

In 1985, Congress sought to encourage states to provide for the proper disposal of low-level nuclear waste generated within their own borders, or to form regional compacts with neighbors to make siting decisions that involved minimal trucking miles. It offered a range of incentives: financial (when some states disposed of waste generated in other states, the recipient states were allowed to charge the senders gradually increasing amounts of money); access-oriented (compliant states could eventually get into the position of refusing delivery entirely from states that were not in compliance with the federal scheme); and blatantly punitive (the “take title” provision).

The “take title” provision read:

“If a State (or, where applicable, a compact region) in which low-level radioactive waste is generated is unable to provide for the disposal of all such waste generated within such State or compact region by January 1, 1996, each State in which such waste is generated, upon the request of the generator or owner of the waste, shall take title to the waste, be obligated to take possession of the waste, and shall be liable for all damages directly or indirectly incurred by such generator or owner as a consequence of the failure of the State to take possession … .”

In this legal context, the State of New York tried to locate waste storage facilities in two of its counties. The people of those counties (Allegheny and Cortland) vociferously objected, and in time the government in Albany backed off. But that meant that New York was left without a federally approved disposal plan, and under the law the state itself would have to “take title” under the above language.

That, in Justice O’Connor’s view, and the view of five of her colleagues, crossed a line. It crossed the line defined by the FERC decision quoted above, among others. In New York again, then, the Supreme Court again refused to sanction a federal command to New York to promulgate or enforce laws.

How is this analogous? I submit that without much of a stretch, we can see various non-New York states, operating facilities under the broad federal scheme, as analogous to Colorado’s neighbors, prohibiting the same substances the federal government prohibits. They were and are worried about the spill-over effects of New York’s failure to comply with that scheme, or about the spill-over effects of the “dangerous gap” Colorado has supposedly created in the war on drugs.

We can see the newly emboldened marijuana entrepreneurs and consumers in Colorado as analogous to the people of the counties of Allegheny and Cortland. The potheads, like the NIMBY-ists, represent the domestic political pressures to which the government in Albany (Denver) has yielded as a matter of its own policy-making process. The federal government can do a lot of things to get the states to work and play well together, but it cannot simply commandeer those states.

My own expectation is that the Supreme Court will follow the precedents of FERC and New York, if it hears arguments in the challenge to Colorado’s law at all.

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