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- SUPREME COURT OF THE UNITED STATES
- --------
- Nos. 91-543, 91-558 and 91-563
- --------
- NEW YORK, PETITIONER
- 91-543 v.
- UNITED STATES et al.
-
- COUNTY OF ALLEGANY, NEW YORK, PETITIONER
- 91-558 v.
- UNITED STATES et al.
-
- COUNTY OF CORTLAND, NEW YORK, PETITIONER
- 91-563 v.
- UNITED STATES et al.
- on writs of certiorari to the united states court of
- appeals for the second circuit
- [June 19, 1992]
-
- Justice Stevens, concurring in part and dissenting in
- part.
- Under the Articles of Confederation, the Federal Govern-
- ment had the power to issue commands to the States. See
- Arts. VIII, IX. Because that indirect exercise of federal
- power proved ineffective, the Framers of the Constitution
- empowered the Federal Government to exercise legislative
- authority directly over individuals within the States, even
- though that direct authority constituted a greater intrusion
- on State sovereignty. Nothing in that history suggests that
- the Federal Government may not also impose its will upon
- the several States as it did under the Articles. The Consti-
- tution enhanced, rather than diminished, the power of the
- Federal Government.
- The notion that Congress does not have the power to
- issue -a simple command to state governments to imple-
-
- ment legislation enacted by Congress,- ante, at 28, is
- incorrect and unsound. There is no such limitation in the
- Constitution. The Tenth Amendment surely does not
- impose any limit on Congress' exercise of the powers
- delegated to it by Article I. Nor does the structure of the
- constitutional order or the values of federalism mandate
- such a formal rule. To the contrary, the Federal Govern-
- ment directs state governments in many realms. The
- Government regulates state-operated railroads, state school
- systems, state prisons, state elections, and a host of other
- state functions. Similarly, there can be no doubt that, in
- time of war, Congress could either draft soldiers itself or
- command the States to supply their quotas of troops. I see
- no reason why Congress may not also command the States
- to enforce federal water and air quality standards or federal
- standards for the disposition of low-level radioactive wastes.
- The Constitution gives this Court the power to resolve
- controversies between the States. Long before Congress
- enacted pollution-control legislation, this Court crafted a
- body of -`interstate common law,'- Illinois v. City of
- Milwaukee, 406 U. S. 91, 106 (1972), to govern disputes
- between States involving interstate waters. See Arkansas
- v. Oklahoma, 503 U. S. __, __-__ (1992) (slip op., at 5-6). In
- such contexts, we have not hesitated to direct States to
- undertake specific actions. For example, we have -im-
- pose[d] on States an affirmative duty to take reasonable
- steps to conserve and augment the water supply of an
- interstate stream.- Colorado v. New Mexico, 459 U. S. 176,
- 185 (1982) (citing Wyoming v. Colorado, 259 U. S. 419
- (1922)). Thus, we unquestionably have the power to
- command an upstate stream that is polluting the waters of
- a downstream State to adopt appropriate regulations to
- implement a federal statutory command.
- With respect to the problem presented by the case at
- hand, if litigation should develop between States that have
- joined a compact, we would surely have the power to grant
- relief in the form of specific enforcement of the take title
- provision. Indeed, even if the statute had never been
- passed, if one State's radioactive waste created a nuisance
- that harmed its neighbors, it seems clear that we would
- have had the power to command the offending State to take
- remedial action. Cf. Illinois v. City of Milwaukee. If this
- Court has such authority, surely Congress has similar
- authority.
- For these reasons, as well as those set forth by Justice
- White, I respectfully dissent.
-