O’Melveny Wins Major US Supreme Court Victory for North Carolina

June 03, 2010


Piper Hall
O'Melveny & Myers LLP

Andrea Rodeschini
O'Melveny & Myers LLP

WASHINGTON, DC -- JUNE 3, 2010 -- O'Melveny & Myers LLP won a significant victory in the US Supreme Court--the Firm's second victory in the Court this Term--for the State of North Carolina on June 1, in an unusual case involving a dispute between several states over a radioactive waste storage agreement.

In 1986, eight states agreed to create the Southeast Interstate Low-Level Radioactive Waste Management Compact.  The Compact was administered by a commission that would select a location for a regional waste-disposal facility. North Carolina was designated as the host state for the first new disposal facility, and over the course of almost ten years, the commission provided North Carolina with approximately US$80 million in financial assistance to conduct the studies and other operations necessary to license the facility.  After the commission refused to provide further assistance, North Carolina withdrew from the Compact.  The commission conducted a sanctions hearing with North Carolina in absentia, and levied a penalty against the State of nearly US$90 million.

In 2003, four other states party to the Compact--Alabama, Florida, Tennessee, and Virginia--joined the commission in seeking leave to file a complaint directly in the Supreme Court pursuant to the Court's "original jurisdiction."  The Court accepted the complaint and assigned the case to a Special Master, Professor Bradford Clark of the George Washington University Law School, who oversaw pre-trial proceedings and discovery.  On O'Melveny's motion, the Special Master recommended dismissing part of the case, but allowed most of it to proceed through discovery.  O'Melveny then moved for summary judgment, and the Special Master agreed to recommend judgment for the State on the key remaining claim.  The Special Master left open a small aspect of the case, but agreed to file his Reports with the Court for its review before further proceedings. 

On June 1, 2010, the Court overruled the plaintiffs' objections and adopted the Special Master’s recommendations.  The Court held that the terms of the Compact do not authorize the Commission to impose monetary penalties against North Carolina, and that North Carolina did not breach the terms of the Compact when it withdrew before obtaining a license for a new disposal facility.  The case now returns to the Special Master for resolution of the few issues remaining.

Partner Jon Hacker led O'Melveny's efforts, briefing and arguing the motions before the Special Master and briefing the case in the Supreme Court.   Partner Walter Dellinger argued the case before the Supreme Court, and argued part of the initial motion to dismiss before the Special Master.  Of counsel Irv Gornstein and associate Sujeet Rao assisted in argument preparation.