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

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:

• Colorado Dept of Public Health v. United States (Tenth Circuit Court of Appeals)
• Federal Preemption Bars NYC Smoking Scare Tactics (FindLaw's Second Circuit Blog)
• Colorado Loses Bid To Force Destruction Of Weapons (CBS Denver)
• S.B. 1070 Opinion: You Win Some, You Lose Some, Arizona (FindLaw's Supreme Court Blog)