RADIOACTIVE WASTE:

Supreme Court hears arguments in interstate dispute

The Supreme Court heard oral arguments today on whether North Carolina violated the terms of a regional radioactive waste compact by withdrawing from the pact after receiving $80 million from fellow states to develop a disposal site.

The 8-year-old case, Alabama v. North Carolina, stems from a dispute over the Southeast Interstate Low-Level Radioactive Waste Management Compact, which Congress approved in 1986 as an agreement among Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee and Virginia.

North Carolina received $80 million between 1986 and 1997 to develop a disposal facility for low-level radioactive waste, including the types produced by some industrial and medical facilities. There are just three licensed low-level waste disposal facilities nationwide, located in Barnwell, S.C.; Clive, Utah; and Richland, Wash.

The commission overseeing the regional compact levied a penalty of $90 million on North Carolina when the state failed to secure the necessary licenses, claiming costs exceeded initial estimates. North Carolina, which had withdrawn from the compact in 1999, refused to pay.

In court today, the justices probed the period from 1997 to 1999, during which North Carolina placed on hold its efforts to develop a facility but remained a member of the compact. Carter Phillips, an attorney for the plaintiffs, argued that North Carolina effectively extorted its compact partner states for additional money during this period.

When Justice Ruth Bader Ginsberg asked what North Carolina would have gained by delaying its withdrawal from the contract, Phillips replied that remaining a member of the compact allowed North Carolina to benefit from deals negotiated by the commission.

"It sounds to me pretty hypothetical," Justice Antonin Scalia said. "I find it difficult to believe that there is an obligation to commit money and a liability for failure to do so in a compact, which says that the state can withdraw at any time."

Justice Sonia Sotomayor asked Phillips to reply to North Carolina's sovereign immunity claim, which was based on the fact that one of the plaintiffs in the suit -- the waste commission -- is not a state. In a preliminary report sent to the Supreme Court last April, special master Bradford Clark recommended that the court reject that claim.

That question was the undoing of the commission when it initially filed a U.S. Supreme Court case against North Carolina in 2000. The Supreme Court denied the case the next year, saying the commission did not have jurisdiction for an original lawsuit.

The commission filed suit again in 2002 -- this time, with Alabama, Florida, Tennessee and Virginia in tow.

The court granted the case in 2003, assigning it to special master Clark, who recommended in his report that the court reject the plaintiffs' request for summary judgment.

U.S. Solicitor General Elena Kagan agreed. She wrote in a friend-of-the-court brief that the court should not issue a summary judgment in the plaintiffs' favor because the compact that formed the commission did not grant it authority to place monetary sanctions on member states.

"The Southeast Compact's failure to make any mention of a power to impose monetary sanctions is particularly significant in light of other similar interstate compacts specifically granting such power," Kagan wrote, citing by name three of the nation's 11 regional low-level waste compacts. "Several interstate compacts addressing treatment of low-level radioactive waste -- approved by Congress in the selfsame Act as the Southeast Compact -- expressly authorize their commissions to fine member States."

Deputy Solicitor General Edwin Kneedler argued the office's positions before the court today, saying the court should deny North Carolina's motion to dismiss the case, as well as the commission's claim that it has the power to impose monetary sanctions.

Justice Stephen Breyer was the only one to question Kneedler on that position.

"When I read the word 'sanctions' in the law, the thing that comes to my mind first and foremost is the money, like a fine," Breyer said.

Walter Dellinger, an attorney for North Carolina, opened his arguments by framing the main question of the case as a question from his grandson. That prompted a rejoinder from Chief Justice John Roberts.

"You took $80 million and they got nothing for it. That would be a question your grandson might ask," Roberts said. "What did you do with the $80 million?"

Dellinger said all $80 million was spent on efforts to develop a facility. He noted the states provided $25,000 apiece, with the remaining money coming from charges on generators of waste. North Carolina's waste authority spent $34 million itself on the efforts, Dellinger said, demonstrating its good-faith commitment to the project.

Breyer asked Dellinger to address concerns raised in an amicus brief that a decision in favor of North Carolina could encourage states to renege on compacts, undoing the nation's system of regional waste agreements.

"The amicus suggestion that a decision for North Carolina would impair the very useful mechanism of interstate compacts has it exactly backward," Dellinger replied. "A decision in favor of North Carolina would, in fact, benefit the compacting process because it would provide assurances to state legislators that you can pick up a copy of the proposed compact and read it and know that that is the extent of the liabilities to which you are ... exposing your state."