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No. 91-543. Argued March 30, 1992-Decided June 19, 1992*

Faced with a looming shortage of disposal sites for low level radioactive waste in 31 States, Congress enacted the Low-Level Radioactive Waste Policy Amendments Act of 1985, which, among other things, imposes upon States, either alone or in "regional compacts" with other States, the obligation to provide for the disposal of waste generated within their borders, and contains three provisions setting forth "incentives" to States to comply with that obligation. The first set of incentives-the monetary incentives-works in three steps: (1) States with disposal sites are authorized to impose a surcharge on radioactive waste received from other States; (2) the Secretary of Energy collects a portion of this surcharge and places it in an escrow account; and (3) States achieving a series of milestones in developing sites receive portions of this fund. The second set of incentives-the access incentives-authorizes sited States and regional compacts gradually to increase the cost of access to their sites, and then to deny access altogether, to waste generated in States that do not meet federal deadlines. The so-called third "incentive"-the take title provision-specifies that a State or regional compact that fails to provide for the disposal of all internally generated waste by a particular date must, upon the request of the waste's generator or owner, take title to and possession of the waste and become liable for all damages suffered by the generator or owner as a result of the State's failure to promptly take possession. Petitioners, New York State and two of its counties, filed this suit against the United States, seeking a declaratory judgment that, inter alia, the three incentives provisions are inconsistent with the Tenth Amendment-which declares that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States" -and with the Guarantee Clause of Article IV, § 4-which directs the United States to "guarantee to every State ... a Republican Form of Government." The District Court dismissed the complaint, and the Court of Appeals affirmed.

*Together with No. 91-558, County of Allegany, New York v. United States et al., and No. 91-563, County of Cortland, New York v. United States et al., also on certiorari to the same court.cralawred



1. The Act's monetary incentives and access incentives provIsIOns are consistent with the Constitution's allocation of power between the Federal and State Governments, but the take title provision is not. Pp. 155-183.

(a) In ascertaining whether any of the challenged provisions oversteps the boundary between federal and state power, the Court must determine whether it is authorized by the affirmative grants to Congress contained in Article 1's Commerce and Spending Clauses or whether it invades the province of state sovereignty reserved by the Tenth Amendment. Pp. 155-159.

(b) Although regulation of the interstate market in the disposal of low level radioactive waste is well within Congress' Commerce Clause authority, cf. Philadelphia v. New Jersey, 437 U. S. 617, 621-623, and Congress could, if it wished, pre-empt entirely state regulation in this area, a review of this Court's decisions, see, e. g., Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 288, and the history of the Constitutional Convention, demonstrates that Congress may not commandeer the States' legislative processes by directly compelling them to enact and enforce a federal regulatory program, but must exercise legislative authority directly upon individuals. Pp. 159-166.

(c) Nevertheless, there are a variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program consistent with federal interests. As relevant here, Congress may, under its spending power, attach conditions on the receipt of federal funds, so long as such conditions meet four requirements. See, e. g., South Dakota v. Dole, 483 U. S. 203, 206-208, and n. 3. Moreover, where Congress has the authority to regulate private activity under the Commerce Clause, it may, as part of a program of "cooperative federalism," offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation. See, e. g., Hodel, supra, at 288, 289. Pp. 166-169.

(d) This Court declines petitioners' invitation to construe the Act's provision obligating the States to dispose of their radioactive wastes as a separate mandate to regulate according to Congress' instructions. That would upset the usual constitutional balance of federal and state powers, whereas the constitutional problem is avoided by construing the Act as a whole to comprise three sets of incentives to the States. pp. 169-170.

(e) The Act's monetary incentives are well within Congress' Commerce and Spending Clause authority and thus are not inconsistent with the Tenth Amendment. The authorization to sited States to impose surcharges is an unexceptionable exercise of Congress' power to enablecralawred

Full Text of Opinion