Global Security Newswire

The U.S. government is continuing its court battle to squash efforts by the state of Colorado to force the Defense Department to destroy all chemical weapons at the Pueblo Chemical Depot within seven years, Defense Environment Alert reported yesterday (see GSN, March 16).

The Colorado Public Health and Environment Department filed a lawsuit seeking court backing for its demand that the Pentagon eliminate 2,600 tons of mustard agent at Pueblo by the end of 2017. It lost a first ruling in federal court late last year and appealed in March to the 10th U.S. Circuit Court of Appeals.

The Obama administration responded last week, contending that federal law supersedes state regulations in cases in which national and state statutes conflict.

"This case is a rare example of an instance where it is physically impossible to comply with a state law and a federal law at the same time," reads the federal response.

Congress has also demanded that all U.S. chemical weapons be destroyed by 2017, and disposal operations at Pueblo are tentatively scheduled to be completed that year.

Colorado waste rules do not allow the extended housing of chemical shells at Pueblo, according to the health department. However, federal statute essentially mandates that the mustard-agent munitions be stored at the depot until they can safely be eliminated. The Supremacy Clause mandates that state law give way to federal law in cases such as this, according to the federal response.

The Colorado appeal contended that the federal district court that first considered the case was wrong to reject its suit before deciding whether the housed munitions constitute hazardous waste. The state also said the court had not designated where a legal conflict occurred that required imposition of the pre-emption rule.

"The scope of relief is irrelevant to pre-emption analysis if a plaintiff bases his complaint on a state law that directly conflicts with federal law," states the U.S. response. "In such a case, the plaintiff cannot demand any relief, even relief he thinks is consistent with Congress's intent" (Defense Environment Alert, June 8).