The federal interest in non-poisoned reservoirs

sandy levinson slevinson at MAIL.LAW.UTEXAS.EDU
Thu Jun 13 15:21:45 PDT 2002

Rebecca writes:

At 01:59 PM 06/13/2002 -0400, you wrote:
> of course the statute in NY v. US was
>the result of states' cooperating to work out a remedy for disposing of
>low level radioactive watse.  But even in NY v. US, the Court indicated
>that Congress could have done something similar to the "commandeering"
>if it had made it a condition of receipt of federal funds.
But isn't this the key question:  Is the current majority simply venting,
so that it will continue to approve almost any conditional spending a la
Dole, or is it likely to take the advice of my colleague Lynn Baker that if
they're really serious about reining in the (purportedly) overreaching
federal government, it will require much more vigorous monitoring of
conditional spending.

Also, with regard to some other postings about reservoirs (a topic about
which I know nothing), at least some of the points being made are
empirical.  I.e., reservoirs are attached to interstate rivers or the water
is sold to people.  Imagine a reservoir in an arid state (let's call it
Nevada) that collects (relatively rare) rainwater and the snowmelt from the
local mountain to supply a town of, say, 1000 people, who live well off
interstate highways.  Could *that* reservoir be reached by congressional
legislation, given current doctrine?  (Now one answer, for those of us who
don't take doctrine very seriously, is "of course."  I'm interested,
though, in what people would say if they not only take doctrine seriously,
but support the general direction of the current majority.)


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