Skip to main content
Please enter a legal issue and/or a location
Begin typing to search, use arrow keys to navigate, use enter to select

Find a Lawyer

More Options

Federal Preemption: Colorado Can't Tell Army How to Do its Job

By Robyn Hagan Cain on September 05, 2012 | Last updated on March 21, 2019

Bad news out of Colorado today: Federal preemption bars a state from ordering the feds to destroy a chemical weapon stored within its borders if Congress has also set a timeline for the weapon’s destruction.

The U.S. has stored a mustard agent at the Army’s weapons depot located near Pueblo, Colorado since the 1950s. Congress has mandated that the Army destroy those weapons by 2017. Separately, Congress authorized the State of Colorado to regulate hazardous waste within its borders. The Colorado Department of Public Health and Environment, Hazardous Materials and Waste Management Division (Colorado) decided chemical weapons should be classified as hazardous waste, and told the Army to make a plan to destroy the chemical weapons by 2017.

This week, the Tenth Circuit Court of Appeals told Colorado that it lacks the authority to demand a destruction schedule, The Associated Press reports.

The specific question in the case was whether a Congressional mandate that the Army destroy these chemical weapons at the Depot by 2017 preempted Colorado's enforcement against the Depot of its regulation prohibiting storage of any hazardous waste.

Based on the fact that Congress delegated to Colorado the authority to regulate hazardous waste, (so long as the State's regulations are at least as stringent as federal hazardous waste regulations), and required federal agencies to follow state hazardous waste regulations, Colorado argued that the Army must comply with the State's prohibition against storing hazardous waste.

Based instead on the fact that Congress mandated that the Army destroy the chemical weapons at the Depot and gave the Army until 2017 to complete their destruction, the military argued that it couldn't comply with Colorado's regulation.

While the Tenth Circuit judges sympathized with Colorado's impatience with the delays in destroying the weapons, the court concluded that compelling the government to comply with the Colorado hazmat regulations would interfere with Congress' authority over the same materials. Even though Colorado only wanted to exercise its regulatory authority in a limited manner, the court ruled that federal law preempted the State's regulatory authority.

Related Resources:

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

Or contact an attorney near you:
Copied to clipboard