212
Opinion of Stevens, J.
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. 91, 98-99 (1992). In such contexts, we have not hesitated to direct States to undertake specific actions. For example, we have "impose[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 upstream State 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 cases 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.3 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
3 Even if § 2021e(d)(2)(C) is "invalidated" insofar as it applies to the State of New York, it remains enforceable against the 44 States that have joined interstate compacts approved by Congress because the compacting States have, in their agreements, embraced that provision and given it independent effect. Congress' consent to the compacts was "granted subject to the provisions of the [Act] . . . and only for so long as the [entities] established in the compact comply with all the provisions of [the] Act." Appalachian States Low-Level Radioactive Waste Compact Consent Act, Pub. L. 100-319, 102 Stat. 471. Thus the compacts incorporated the provisions of the Act, including the take title provision. These compacts, the product of voluntary interstate cooperation, unquestionably survive the "invalidation" of § 2021e(d)(2)(C) as it applies to New York. Congress did not "direc[t]" the States to enter into these compacts and the decision of each compacting State to enter into a compact was not influenced by the existence of the take title provision: Whether a State went its own way or joined a compact, it was still subject to the take title provision.
Page: Index Previous 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 NextLast modified: October 4, 2007