A federal judge this morning threw out an attempt by New York State and Allegany County to invalidate a federal law requiring New York to dispose of low-level radioactive waste generated in the state.
U.S. District Judge Con Cholakis said two previous decisions by the U.S. Supreme Court forced him to rule against the plaintiffs. But Cholakis and attorneys arguing the case said they expect the lawsuit eventually to reach the U.S. Supreme Court.
A leader of the anti-dump protest movement in Allegany County said today she expected the legal challenge to fail but added that it was nonetheless a good move by the state.
"You have to play all the odds," said Sally Campbell, a spokeswoman for the Allegany County Non-Violent Action Group. "You can't leave anything to chance."
The ruling will not have any immediate impact on the state's decision to select a site or build a storage vault. The state has suspended that process while it decides what kind of building design should be selected for the storage vault, which Allegany County protesters say they do not want in their area.
At issue are 1980 and 1985 federal laws requiring all states to dispose of radioactive waste within their borders, starting in 1993. As a result, New York selected Allegany and Cortland counties as possible sites for a storage vault for that waste before filing the lawsuit nearly a year ago.
The state, joined by both counties, claimed the federal government was unconstitutionally ordering the state to carry out a federal program. If he would not invalidate the entire law, the state asked Cholakis at least to throw out one section of the federal statute requiring New York to take possession of all the waste generated in New York.
Because of a 1985 Supreme Court decision, New York must turn to Congress, not the courts, to overturn the law, Cholakis ruled.
The judge had written most of his decision based on papers filed by seven different attorneys. After more than a hour of argument by attorneys this morning, Cholakis read his decision from the bench. Cholakis conceded that the speedy decision was unusual but said it was fair to all sides to issue a decision as soon as possible.
New York's delay in picking a site -- including today's lawsuit -- was challenged by the three states that now store New York's low-level radioactive waste. Those states are threatening to close their storage facilities to New York unless the state can prove that it is still complying with the federal law. New York officials this week mailed a lengthy defense of the state's compliance with the federal law. The three states -- South Carolina, Washington and Nevada -- based their threat on the delay in New York's choice of a storage site, not the lawsuit it filed challenging the state law.
Mrs. Campbell said there would be a positive side effect if the three states now storing New York's waste shut off further shipments. Allegany County activists have been pushing for storage of radioactive waste at facilities where it is produced, rather than at storage facilities built elsewhere.
"It would force New York to store the waste on site, at least temporarily," she said.
Staff Reporter Peter Simon contributed to this story.