On June 5, 2001, United States Court of Appeals for the Sixth Circuit entered its opinion in United States of America v. Commonwealth of Kentucky; Kentucky Natural Resources & Environmental Protection Cabinet, Secretary, Sixth Circuit Appeal No. 00-5247, in which it held that the Atomic Energy Act, and the regulatory scheme developed by the Department of Energy pursuant to the Act preempts state regulation of the Department’s disposal of radioactive waste.
The Department operates a gaseous diffusion plant at Paducah, Kentucky; and in connection with those operations the Department obtained from the Kentucky Natural Resources Cabinet a permit for the construction of a solid waste landfill and later applied for a permit to operate that landfill. The permit issued by the Cabinet included conditions regulating the disposal of radioactive solid waste and solid waste containing radionuclides. The Department appealed the imposition of those conditions through Kentucky's administrative process; commenced a state court action for judicial review of the dismissal of that appeal and simultaneously commenced a declaratory judgment action in the United States District Court for the Western District of Kentucky asserting, among other things, that federal law preempts the attempted state regulation. The District Court entered judgment for the Department and, on appeal by the Cabinet, the Sixth Circuit affirmed, rejecting, among other arguments, the Cabinet’s contention that the District Court should have abstained from exercising its declaratory judgment jurisdiction, in favor of the pending state court action
The preemption analysis set out in the opinion is rather straightforward, somewhat party specific, and of relatively limited applicability. Of perhaps greater interest to the practitioner, though, is the manner in which the Court of Appeals dealt with the Cabinet's argument that the District Court should have abstained from entertaining the Department's declaratory judgment action.
Initially, the Court of Appeals implied some curiosity as to why the Department had simultaneously pursued state remedies, and then, while recognizing previous decisions in which it has held that when state and federal courts have concurrent jurisdiction to decide a preemption question the federal court should ordinarily abstain to allow the state court consider the issue, the Court concluded that abstention is inappropriate if the issues present "facially conclusive claims" of preemption.
In finding the issues raised by the Department to present facially conclusive claims of federal preemption, the Court relied upon the fact that a determination of those claims could be made solely upon an analysis of federal law, without the adjudication of any factual disputes or the interpretation of state law.
For these reasons, the opinion is instructive to those who would prefer to litigate claims of federal preemption in federal court, as opposed to presenting those claims to the state agencies whose proposed actions would be prohibited upon findings of preemption. It appears from the language of the opinion that a party whose activities are subject to federal regulation can enhance the likelihood of obtaining a ruling that such regulation prohibits regulation of the same activities by a state if it: (1) commences its federal declaratory judgment action immediately upon becoming the subject of definitive state regulation; (2) casts its arguments exclusively in terms of federal law, while avoiding arguments conditioning the applicability of federal law upon any but clearly undisputed facts; and (3) leaves no room for argument that the competing state law might be interpreted so as to avoid conflict with the federal regulatory scheme.
Those interested in reviewing the full text of the opinion may do so at http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=01a0184p.06.