RE: Baltimore Tunnel Incident Comment

[Paul Lavely <lavelyp@UCLINK4.BERKELEY.EDU>]

Title: RE: Baltimore Tunnel Incident Comment

Mr. Neil wrote that:

> The
>
> last four of the eight principles prove my point from your own words,
>
> having nothing to do with weapons technology, just Rad-is-Bad
>
> handflapping.
>
> >
>
> >
>
> > Section 12.90.020 Purpose.
>
> >
>
> > The purpose of this act is to make Berkeley nuclear-free;
> >
> > that is:
>
> > A.    To oppose the arms race by
> >
> > prohibiting work for nuclear weapons;
>
> > B.    To begin a peace conversion
> >
> > plan;
>
> > C.    To establish a citizen's right to
> >
> > know about nuclear weapons work;
>
> > D.    To minimize City contracts with and
> >
> > investments in the nuclear weapons industry;
>
> > E.    To prohibit nuclear
> >
> > reactors;
>
> > F.    To prohibit food irradiation
> >
> > plants;
>
> > G.    To require labelling of irradiated
> >
> > food sold in Berkeley; and,
>
> > H.    To oppose the nuclear fuel cycle as a
> >
> > whole. (Ord. 5784-NS § 2, 1986)

David Neil

The words above are from the ordinance and are not mine. I neither agree with them nor support them.

My response was in response to your issue:

> Not far outside the Berkeley, CA
>
> "Nuclear Free Zone" (which contains several

hospitals with N.M. Departments), is the Caldicott Tunnel . . .

That is, I was responding to your comment about hospitals with N.M. Departments and the use of radioactive materials.

You wrote that: I was directly involved in the barging of tanks of contaminated liquids between Mare Island and Hunter's Point, to avoid bruising the delicate sensibilities of Berkeley, so I DO know what went on, and the manifest intent of the proclamation at the time.

Saying that "we did x" is not as helpful as "we had to do x because of [cite specific requirement]. That is, which of the specific items in the ordinance caused the Navy to go to the extra efforts you described? Why was there no court challenge of the ordinance on a constitutional (preemption) basis? Sounds as if the Navy simply gave in because they did not want the issue placed into a media spotlight (and who would blame them if that was the reason). I seriously doubt that the Navy's real reason for barging these materials was to "avoid bruising the delicate sensibilities of Berkeley . . . "

By the way, the University of Chicago Law Review article I cited explores the issue you raised regarding the Navy rather directly.  

 preclusion of state laws interfering with the execution of federal defense powers. 

    No interference with the execution of this power of the National government in the formation, organization, and government of its armies by any State official could be permitted without greatly impairing the efficiency, if it did not utterly destroy, this branch of the public service . . ..

Although the local Berkeley folks have tried to close the LBNL National Tritium Labeling Facility or to control it, the Nuclear Free Ordnance has never been used as the tool. Why? 1 it does not apply to any of the A-H criteria and 2 because the City attorney has warned that use that resulted in a court challenge would result in the ordnance would be overturned as unconstitutional.

Paul Lavely <lavelyp@uclink4.berkeley.edu>