RE: OPINION REQUEST CONCERNING THE CENTRAL INTERSTATE LOW-LEVEL RADIOACTIVE WASTE COMPACT
ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR RECENT REQUEST FOR AN ATTORNEY GENERAL OPINION REGARDING THE IMPACT OF THE U.S. SUPREME COURT DECISION IN NEW YORK V. UNITED STATES, 112 S.CT. 2408 (JUNE 19, 1992) ON THE CENTRAL INTERSTATE LOW-LEVEL RADIOACTIVE WASTE COMPACT. BECAUSE YOUR REQUEST INVOLVES THE DIRECT APPLICATION OF A RECENT U.S. SUPREME COURT DECISION, THIS OFFICE HAS DETERMINED THAT YOUR REQUEST SHOULD BE ANSWERED THROUGH THIS INFORMAL LETTER.
THE DISCUSSION WHICH FOLLOWS IS NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL. RATHER, THE FOLLOWING ANALYSIS AND CONCLUSIONS, WHILE SOLELY MY OWN, HAVE BEEN REACHED AFTER CAREFUL RESEARCH OF THE QUESTION YOU HAVE RAISED.
YOUR SPECIFIC QUESTION WAS WHETHER THE U.S. SUPREME COURT DECISION IN NEW YORK V. UNITED STATES AFFECTS THE CENTRAL INTERSTATE LOWLEVEL RADIOACTIVE WASTE COMPACT. IN NEW YORK V. UNITED STATES, THE SUPREME COURT REVIEWED NEW YORK'S SEVERAL CONSTITUTIONAL CHALLENGES TO PORTIONS OF THE LOW-LEVEL RADIOACTIVE WASTE POLICY ACT AMENDMENTS OF 1985. HOWEVER, THE SUPREME COURT RULED THAT ONLY ONE PORTION OF THAT ACT WAS UNCONSTITUTIONAL. AS A RESULT, ONLY THAT PORTION OF THE DECISION WHICH FOUND ONE PART OF THE ACT UNCONSTITUTIONAL WOULD BE RELEVANT IN ANSWERING YOUR QUESTION.
SPECIFICALLY, THE ACT HAD REQUIRED THAT A STATE, INDIVIDUALLY, OR ACTING THROUGH AN INTERSTATE COMPACT, MUST TAKE TITLE TO LOW-LEVEL RADIOACTIVE WASTE GENERATED WITHIN ITS BORDERS SHOULD THE STATE FAIL TO DEVELOP DISPOSAL FACILITIES FOR SUCH WASTE BY A SPECIFIC DATE. THE PETITIONERS, THE STATE OF NEW YORK AND TWO OF ITS COUNTIES, ARGUED THAT THIS "TAKE TITLE" REQUIREMENT WAS UNCONSTITUTIONAL. THE U.S. SUPREME COURT AGREED, FINDING THAT THE CONGRESSIONAL "TAKE TITLE" MANDATE VIOLATED THE CONSTITUTION'S TENTH AMENDMENT PROTECTION OF STATE SOVEREIGNTY.
OKLAHOMA'S ENACTMENT OF THE CENTRAL INTERSTATE LOW-LEVEL RADIOACTIVE WASTE COMPACT IS FOUND AT 63 O.S. 1-2102, ET SEQ. THERE IS NO PROVISION IN THE OKLAHOMA ACT ADOPTING THE DISPUTED FEDERAL "TAKE TITLE" PROVISION. IF THE CENTRAL INTERSTATE LOW-LEVEL RADIOACTIVE WASTE COMPACT, AS ADOPTED BY THE OTHER PARTY STATES, LIKEWISE NEVER ADOPTED THIS "TAKE TITLE" PORTION OF THE LOW-LEVEL RADIOACTIVE WASTE POLICY ACT AMENDMENTS OF 1985, THEN THE RECENT U.S. SUPREME COURT DECISION IN NEW YORK V. UNITED STATES, WOULD HAVE NO IMPACT ON THE CENTRAL INTERSTATE LOW-LEVEL RADIOACTIVE WASTE COMPACT.
IF I CAN BE OF FURTHER ASSISTANCE TO YOU ON THIS ISSUE, PLEASE CONTACT ME.
(BRITA HAUGLAND CANTRELL)