Oakland Ban Draws Controversy

Federal government charges California city's ordinance impedes national defense policies. NUCLEAR-FREE ZONES

NUCLEAR weapons work goes on all around Oakland, Calif. Among the US government facilities calling that city home are a naval shore depot that stocks nonnuclear spare parts for nuclear weapons, and a Department of Energy office that oversees nuclear design work at nearby Lawrence Livermore National Lab. Military bases where actual nuclear weapons might be stored surround Oakland. The Naval Air Station in next-door Alameda is home to five nuclear-powered ships, including two aircraft carriers. The Mare Island Naval Shipyard, north of the city, services nuclear-powered submarines.

So when the voters of Oakland passed a referendum last year declaring their city a nuclear-free zone, they set up an inevitable clash with the federal government. The sweeping terms of the referendum not only ban production and storage of nuclear weapons, weapon components, and radioactive materials in Oakland, they call for a flat ban on any person engaging in nuclear weapons work within the city limits.

The Department of Justice has now filed suit against Oakland, challenging the constitutionality of its nuclear-free ordinance. It's the first federal attack of its kind, and it could affect the more than 150 other self-declared US municipal nuclear-free zones.

The Oakland nuclear-free area ``impedes and interferes with the accomplishment and execution of unified policies regarding national defense,'' charges the Justice Department's complaint.

The concept of communities declaring themselves nuclear-free zones first surfaced in Japan some 30 years ago. In the US the nuclear-free zone movement took off in the 1980s, with about 164 self-declared zones now established around the country, according to the Baltimore-based nonprofit organization Nuclear Free America.

Some zones were established by voter-passed resolutions, as in Oakland. Some are the result of bylaws passed by city or county councils. In Malibu, Calif., a nuclear-free zone was simply declared by honorary mayor Martin Sheen.

In banning nuclear weapons and related work from their environs most communities are making a symbolic gesture. Many nuclear-free zones are places far from concentrations of defense contractors and military bases. About 15 zone resolutions contain provisions prohibiting city business with firms linked to nuclear weapons. In Takoma Park, Md., a Washington, D.C., suburb, this has meant phasing out police cars made by General Motors, a large defense contractor.

Under an ordinance passed by its city council in 1986, Chicago is the biggest declared US nuclear-free city. But Chicago is still gathering information about city defense contracting and thus has not yet made any enforcement moves.

Oakland's nuclear-free resolution was passed by voters in November 1988. Besides prohibiting production of nuclear weapons in Oakland, the ordinance among other things regulates transportation of nuclear-related materials through the city, and prohibits any person within the city limits from knowingly engaging in nuclear weapons work following a two-year grace period.

Most city politicians didn't support the ordinance, yet in May Oakland served notice to the federal government that it would try to enforce its new law. As the first self-declared nuclear-free zone to make such a move, Oakland set the stage for a constitutional showdown.

``I think we're on very firm ground with almost every part of this ordinance,'' says Oakland City Council member Wilson Riles, an original supporter of the nuclear-free resolution.

The Justice Department says it thinks Oakland's case is badly flawed. At issue is the complicated legal issue of when federal law preempts local statutes.

According to the Justice Department complaint, under the US Constitution states and cities have no authority to regulate ``any matter relating to the national defense as provided for by the United States government.''

The complaint claims that the Oakland ordinance's attempt to regulate nuclear weapons work is an unconstitutional infringement on interstate commerce, that the city has no right to try to regulate actions taken on federal property, and that the Atomic Energy Act gives Washington exclusive control over atomic energy, both military and civilian.

Furthermore, the complaint says that under the 1975 Hazardous Materials Transportation Act the government has the right to ship nuclear-related materials through Oakland if it wants to.

There are few legal precedents for the Justice Department suit. In a 1985 case involving the Navy's right to build a Staten Island home port for a battleship, the New York state Supreme Court ruled that a local ordinance blocking federal defense policies is invalid if it was passed because of local objections to Washington's defense actions.

Also in 1985, the Massachusetts Supreme Judicial Court upheld a Cambridge municipal regulation preventing Arthur D. Little Inc. from conducting work with chemical-warfare poisons within the city limits. The court concluded that the health risk to citizens was relatively large, while the effect on national defense was only incidental.

A 1988 University of Chicago Law Review article concluded that ``many of the recent Nuclear Free Zone ordinances are invalid as unconstitutional intrusions on the federal power to provide for national defense and to conduct foreign affairs.''

David Birman, director of the Lawyer's Committee on Nuclear Policy, holds that threatening the use of nuclear weapons is illegal under international law. Thus any local ordinance which bans nuclear weapons is in turn legal, he says. But Mr. Birman adds that he's ``not that optimistic'' the Oakland nuclear free zone will be upheld in US courts.

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