ML20039G040
| ML20039G040 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 10/07/1981 |
| From: | Fletcher U.S. COURT OF APPEALS, 9TH CIRCUIT |
| To: | |
| Shared Package | |
| ML20039G038 | List: |
| References | |
| 79-3365, 79-3382, 80-4265, 80-4273, CV-78-527-MLR, CV-78-711-WBE, NUDOCS 8201150210 | |
| Download: ML20039G040 (65) | |
Text
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FILED UNITED STATES COUPT OF APPEALS g
'oci 7 t981 2
.FOR THE NINTH CIRCUIT PACIFIC LEGAL FOUNDATION, a
)
California Nonprofit Corporation, )
4 et al.,
)
I 5
Plaintiffs-Appellees,
)
Nos. 79-3365, 79-3382
)
6 v.
)
DC No. CV 78-711 WBE 7
)
STATE ENERGY RESOURCES
)
8 CONSERVATION & DEVELOPMENT
)
COKMISSION, a state agency,
)
9 et al.,
)
)
10 Defendants-Appellants.
)
)
11 NATUPAL RESOURCES DEFENSE COUNCIL,)
INC., e t al., -
)
12
)
De f endants-Interve nors-Appellants. )
13
)
14 PACIFIC GAS AND ELECTRIC Co. and )
SOUTHERN CALIFORNIA EDISON Co.,
)
15
)
l Plaintiffs-Appellees,
)
Nos. 80-4265, 80-4273 16
)
v.
)
DC No. CV 78-527 NLR 17
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STATE ENERGY RESOURCES
)
18 CONSERVATION & DEVELOPMENT
)
CCHMISSION, a state agency,
)
19 et al.,
)
)
OPINION 20 De f endants-Appellants.
)
)
21 NATURAL RESOURCES DEFENSE COUNCIL,)
INC., et al.,
)
22
)
De f endants-Intervenor s-Appellant s. )
"3
)
24 Appeal from the United States District Court for the Southern District of California l
25 Willias 3. Enright, District Judge, Presiding 26 Appeal from the United States District Court for the Eastern District of California 27 Manuel L. Real, District Judge, Presiding 28 Argued and submitted: October 9, 1980 l
f 29 BEFORE: FLETCHER and FERGUSON, Circuit Judges, and FITZGERALD,' District Judge 31
- The Honorable James M. Fitzgerald, United States District Judge for the District of Alaska, sitting by 32 designation.
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FLETCHER, Circuit Judge:
2 l
These are consolidated appeals from two district court 3
decisions invalidating portions of California's 4
Warren-Alquist Act.
The Warren-Alquist Act regulates all 5
electric plants in California and imposes a moratorium on 6
the construction of new nuclear plants. The courts below 7
held that insof ar as the challenged provisions regulate 8
nuclear plants, they are preempted by the federal Atomic 9
Energy Act, 42 U.S.CI. ii.2011-2296 (1976 & Supp. III 1979).
10 We find that on the records before us, only two of the 11 challenged provisions are ripe for reviews the moratorium 12 provision e,nd the requirement that utilities submit three 13 alternate sites for their proposed plants. On the merits, 14 we hold that the Atomic Energy Act does not preempt state 15 laws enacted for purposes other than protection against 16 radiation hazards. Because the moratorium provision and the 17 three-site requirasent were enacted for purposes other than 18 protection against radiation hazards, we conclude that they 19 are not preempted.
20 l
21 I
22 mACKGROUND 23 A.
The Warren-Alquist Act and the Nuclear Laws 24 The Warren-Alquist State Energy Resources Conservation l
25 and Development Act, Cal. Pub. Res. Code il 25000-25986 l
26 (West 1977 & Supp. 1980), commonly known as the 27 Warren-Alquist Act, was enacted by California in 1974.
28 According to the legislative findings and policies set forth 29 in the Act, it was adopted in furtherance of the state's 30 responsibility as perceived by the legislature to ensure a 31 reliable source of electrical energy, and to that end to 32 require coordination of energy research and regulation at [
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the state level.
Id. $$ 25001-25007.
j g
2 In keeping with this objective, the legislature 3
established a five-member state Energy Resources 4
conservation and Development Consission (the Energy 5
Commission) to carry out the necessary research and 6
regulation. 3d. I 25200. The Energy consiesion, z
defendant-appellant in the'se cases,1/ has broad authority 7
8 over energy planning and forecasting, conservation, resource g
annagement, research'and development, and the regulation of 10 power plants. The present actions challenge a number of the 11 Warren-Alquist Act's provisions authorizing the Energy 12 Commission to regulate the construction and operation of new 13 nucioar power plants.
14 California's system of regulating power plants is similar to that employed by a number of other etates.2/
15 16 In brief, the construction or modification of any power 17 plant, nuclear or non-nuclear, is conditioned upon the 18 Energy Commission's approval, or " certification," of both 19 the site and the proposed plant. Id. I 25500. To obtain 20 eertification, utilities must follow a two-step procedure.
21 First, any utility planning to construct a power plant 22 aust at an early stage submit a " notice of intention" 23 containing information regarding the need for the power 24 plant, the proposed design, the location of alternate sites, 25 and the relative serits of the different sites.
Io,.
26
(( 25502, 25504. During this phase of the certification 27 process', the focus is on determining site suitability and 28 general conformance of the proposed plant with long-tors 29 energy needs, and health, safety and environmental 30 standards. Each notice of intention must contain at least 31 three alternate sites, only two of which may be near the H. I 25503.M The Energy Commission reviews the 32 coast.
O
consults with other g information submitted by the applicant, 3
2 l
agencies, holds hearings, and nahes a variety of findings 1
based on its analysis o,f the data it has gathered.
Id,.
3 il 25505-25516.5.$/ The notice of intention may be 4
- PProved only if the Enargy Commission finds that at least 5
6 two of the proposed sites are acceptable, or that one site 7
is acceptable and a good-faith effort to find an alternate 8
has been made.
Jo,. I 25516.
9 Before beginning the actual construction of a power 10 plant, a utility must apply to the Energy Commission for 11 certification.
Id,. I 25517. The application must contain detailed information about the plant.E/ and the Energy 12 13 Commission is again directed to review the information and 14 hold hearings. Id. Il 25519-25521. An environmental impact 15 statement is prepared.
Local agencies are asked to comment IF on such matters as the design of the proposed power plant,*
17 architectural and aesthetic features, access to roads, and 18 public use of land surrounding the proposed plant. The 19 California Public Utilities Commission is asked to make 20 recommendations regarding the rate structure and economic 21 reliability of the proposed plant, and comments are 22 solicited from other agencies and the public.
Id. $ 25519.
23 The Energy consission. then issues a written _ decision 24 containing findings simila'r to those required at the notice-of-intention stage,S/ includin7 specification as to 25 l
.3 how the plant is to be designed and operated in order to 27 protect health, safety, and environanntal quality.
Id,.
~
28
$ 25523. As a condition of certification, the Energy 29 Commission.may require the utility to obtain development 30 rights to property surrounding the plant so as to maintain 31 pspulation densities at a safe level.
3d,. $ 25528. The 32 Energy Commission is also directed to monitor certified.
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plants once they become operational. JJI. I 25532.
g For the most part, this regulatory schose applies to g
powerplantsofalltypes.1/ In 1976, however, the 3
California legislature added several provisions to the 4
Warren-Alquist Act that are applicable only to nuclear S
P ants. Id. Si 25524.1, 25524.2, 21524.3. Theso l
6 7
Provisions, known as the Euclear Laws, impose a moratorium on the certification of any new nuclear plants until the s
9 Energy commission makes certain findings and suosits them to 10 the California legislature for approval. Section 25524.1(a) 11 Prohibits the certification of nuclear plants requiring fuel 12 reprocessing until the Energy Commission finds that a 13 federally approved mothed of fuel reprocessing exists:
14 section 25524.2 prohibits the certification of all types of 15 nuclear plants until the Energy Commission finds that a 16 federally approved method of disposing of nuclear wastes 17 existst and section 25524.3 prohibits the certification of 18 all types of nuclear plants until the Energy Cocaission has 19 completed and submitted to the legislature a study on the feasibility of undergrounding and born containment.E[
The 20 21 Nuclear Laws also require the Energy Commission to 22 determine, on a case-by-case basis, whether f acilitism are I
23 available to store a proposed nuclear plant's spent fuel 24 rods. Io,. $ 25524.1(b). The Nuclear Laws direct the Energy 25 Commission to continue processing notices of intention and 26 applications for certification of new nuclear plants, but 27 until the requirite findings are made the plants cannot be 28 certified and construction cannot begin. Id. il 25524.1(c),
29 25524.2(d), 25524.3(c): see id,. Il 25500, 25517.
30 B.
The PLF Case 31 The first of the two cases before us, Pacific Legal 32
////
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l 7-
Foundati n v.
State Energy Resources conservttion &
1 2
Development C muission (PLF), involves only one provision of 3
the warren-Alquiet Act section 25524.2, tapoeirf; a moratorium on new nuclear plants until the Energy Commission finds that a method of waste disposal exists.I/ The suit 5
g was originally biought by a number of plaintiffs, who challenged all three Nuclear Lawe.1S/
The court below 7
a granted summary judgment int plaintiff Robert Thornberry, 9
but denied the summary judgment actions of the other 10 Plaintiffs on the ground that they had failed to show 11 Perticularized injuries sufficient to give then 12 standing.11/
\\
13 Thornberry, a nuclear engineer, was hired by San Diego 14 Gas & Electric Co. (SDG&E) to work on a proposed nuclear 15 Plant known as Sundesert. The Sundesert project was 16 abandoned on May 3,1978 by resolution of SDG&E's board of 17 directors, and Thornberry lost his job. According to the 18 SDG&E board resolution, the Sundesert project was abandoned 19 both because SDGEE had failed to obtain an esenption from 20 the Nuclear Laws, and because the California Public 21 Utilities Commission had denied SDG&E's application for a 22 rate increase.
23 kuling en Thornberry's motion for summary judgment, the 24 court below held that there was sufficient causal connection 25 between the Nuclear Laws and Thornberry's losing his job to 26 provide Thornberry with star. ding. The court found 27 Thornberry's challenge to sections 25524.1 and 25524 3 to be 28 aoot, but declared section 25524.2 to be preempted by the 29 Atomic Energy Act of 1954, 42 U.S.C. (( 2011-2296 (1976 &
30 Supp. III 1979). The court certified its judgment pursuant 31 to Fed. R. Civ. P. 54(b), and the Energy Commission brought 32 this interlocutory appeal..
I u
sus i
c.
The PG&E Case j
l 2
The second of these cases, Pacific Gas % Electric Co. v.
3 State Energy Resources Conservation & Development Commission 4
(PG&E), presents a much broader challenge to California's 5
regulatory scheme. The plaintiffs. Pacific Gas & Electric 6
Co. (PG&E) and Southern California Edison Co. (SCE), both 7
clained that uncertainties caused by the Nuclear Laws and 8
tha warren-Alquist Act had caused them to cancel plans to 9
build naclear plants. PGEE had etncelled a specific project 10 known as Stanislaus, while SCE had abandoned general plans 11 to build two nuclear plants at some future time.
12 As in the PLF case, PG&E and SCE (the utilities) acved 13 for summary judgment. The court below found that summary 14 judgment could not be granted on the issue of standing, 15 since disputed factual issues remained to be resolved.
16 Accordingly, the ceurt held a trial to determine whether the 17 utilities had standing. The court rejected the Energy 18 Commission's argument that economic considerations had kept 19 the utilities from building their proposed nuclear plants.
20 and held that the utilities would have proceeded with their 21 plans but for the Nucienr Laws and other provisions of the 22 warren-Alquist Act.
The court thus concluded that the 23 utilities had standing to rue.
24 Pursuant to Fed. R. Civ. P. 56(d), the court then 25 granted summary judgment for the utilities on the serits of 26 their clain. The court invalidated the Nuclear Laws in 27 their entirety, invalidated the three-site requirement and 28 the provisions regarding the acquisition of development 29 rights, Cal. Pub. Res. Code il 25503, 25504, 25516, 25528, 30 insofar as they applied to nuclear plants, and invalidated 31 numerous other provisions of the warren-Alquist Actl2/
32 insofar as they touched upon satters which the court viewed.
_________..______________.___..__..._..___m..___.___-.____.___.__._________._______.______________.________m
as being within the authority of the Nuclear Regulatory
,1 9
2 Commission (WRC)., As in PLfj the court held the challenged 3
provisions to be preempted b the Atoele Energy Act.
4 5
II 6
STANDING 7
,Before reaching the serits of these cases, we must a
decide whether any of the plaintiffs have standing to bring 9
suit.
10 Standing is a constitutional doctrine, derived from 11 ar*icle III's requirement that federal courts decide only 12 actual cases or controversies. Simon v. Eastern Kentuety 13 Welfare Rights organization. 426 U.S. 26, 37-38 (1976). It 14 limits our jurisdiction to cases in which the plaintiff 15 allages that he has suf fered a particularized injury, 16 although comittedly the injury may be slight. United States 17 v.
Studente Challengir:1 Regulatory Agency Proceduras 18 (SCRAP), 412 U.S. 669, 689 n.14 (1973). In addition, the 19 standing doctrine requires that the plaintif f demonstrcte 20 both "a ' fairly traceable' causal connection between the 21 claimed injury and the challenged cond12t," puke Power Co.
22
- v. Carolina Environmental Study Group. Inc., 438 U.S. 59, 72 23 (1978) (citations emitted), and "a ' substantial likelihood' 24 that the relief requested will redress the injury claimed,"
25 id. at 75 n.20.
See Gladstone. Realtors v. Village of 26 Bellwood, 441 U.S. 91,100 (1979): Village of Arlington l
27 Heights v. Metrepolitan Housing Development Corp., 429 U.S.
2S 252, 264 (1977).
29 It is undisputed that the appellees in both of the cases 30 bef' ore us have alleged particularized injuries to 31 themselves. Our concern thus is with causation and the l
32 court's capacity to redress the injuries alleged.
l 7
/
A.
Thornberry I
i In the PLF case, the court below granted summary judgment for Thornberry on the standing issue. Thornberry's 3
4 claim of standing rests on two premises that the 3
moratorium imposed by Cal. Pub.,Res. Code i 25524.2 caused 6
SDGEE to cancel the Sundesert project, and that cancellation 7
of the Sundesert project caused Thornberry to losa his job.
8 The Energy Commission disputes both of these premises, and I
} farther contends tha't Thornberry has not demonstrated either e
10 that the Sundesert project would be reinstituted or that he 11-would be rehired if section 25524.2 were invalidated.
We Lay af firm a grant of summary judgment only if the 12 13 material facts are undisputed and the moving party is 14 entitled to judgment as a a,atter of law.
Fed. R. Civ. P.
15 55(c). We must view all evidence and factual inferences in 16 the light most favorable *.o the non-moving party, the Energy 17 Commission. Reininger v.
City of Phoenir, 625 F.2d 842, 843 l(9thCir.1980).
18 19 j
1.
Cancellation of Sundesert 20 The Energy Commission contends that economic
~
21 considerations caused SDG&E to cancel Sundesert, and that 22 these economic considerations would keep Sundesert from 23 being built even if section 25524 2 were invalidated. In 24 support of this contention, the Energy Consission points to 25 the SDGLE board of directors' resolution terminating 26 Sundesert. Among the reasons for the termination, the 27 resolution lists a California Public Utiliti,es Commission 28 (CPUC) decision issued the previous day which stated "that 29 continued expenditures on Sundesert would, with certain 30 excwptions, be entirely at the risk of (SDG&E's]
31 shareholders."1 /
32 This CPUC decision, Investigation on the Commission's ~
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own Motsen (San Diego Cas & Electric Company), No. 88758, g
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2
, Interim op., 01I No. 4 (CPUC May 2, 1978), and a prior i
3 resolution adopted by the CPUC, Resolution No. L-190 (CPUC i
4 July 6, 1977), made clear that the CPUC would not grant 5
SDG&E certain types of rate relief to assist it in financing the sundesert project.1$/ The Energy Commission submitted
~
6 7
affidavits from a number of experts in the area of energy 8
regulation and financing indicating that Sundesert could not he financed without the requested rate relief.11/ This 9
10 evidence raised a material question of fact. A trier of 11 fact could have concluded that economic considerations 12 caused the cancellation of Sundesert, and that the 13 elimination of section 25524.2 would not have altered 14 SDG&E's decision. Summary judgment on the issue of standing 15 was therefore improper.
16 In addition, the Energy Commission's evidence showed 17 that SDG&E had asked the California legislature to exempt 18 Sundesert from the requirements of section 25524.2, pursuant 19 to the provisions of Cal. Pub. Re s. Code $ 25524.25. A bill 20 granting such an exemption had passed the California Senate 21 and was pending in the Assembly at the time SDGEE decided to abandon its Sundesert project.1$/ A trier of f act could 22 23 have inferred that if section 25524.2 were the primary 24 obstacle facing the Sundesert project. SDG&E would have 25 waited for more definitive adverse action by the California 26 legislature before cancelling the project.
27 Thornberry contends that section 25524.2 provided an 28
" independent reason" fer the cancellation of Sundesert, 29 because section 25524.2 would have forced SDG&E to cancel 30 the project irrespective of any financial impediments. Even 31 if this were true, it would not suffice to give Thornberry 32 standing. The standing doctrine requires Thornberry to show I
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"a ' substantial likelihood' that the relief requested will
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2 redress the injury claimed," Duke Power Co. v. Carolina 3
Environmental Study Group. Inc., 438 U.S. 59, 75 n.20 4
(1977): Legal Aid Society of Alameda County v.
- Brennan, 5
608 F.2d 1319, 1333 (9th Cir. 1979). @ Such a showing has not been made here. If the Sundesert project is not financially feasible, as the evidence submitted by the Energy Commission suggests, invalidation of section 25524.2 g
would not cause SDG&E to reinstate its Sundesert plans. On the record now before us, it is purely speculative whether 10 e rene y rn em see a w u d lead to the redress of his 11 injury. Such " unadorned speculation will not suffice to 12 13 inv ke the federal judicial power."
Simon v. Eastern Fentucky Welf'are Rights Organization. 426 U.S. 26. 44 (1976).
14 2.
Ioss of Thornberry's iob Even if Thornberry could show that the invalidation 16 secti n 25524 2 would lead to the Sundesert project being 17 18 revived, he would not necessarily have standing to bring this suit. He would also have to show that abandonment of 19 1
20 the Sundesert project caused him to lose his job, and that revival f the project might result in his being rehired.
21 22 We agree with the Energy Commission that Thornberry has not 23 made a showing sufficient to support the trisi court's grant 24 of summary judgment in his favor. Although Thornberry's 25 affidavit states that the cancellation of Sundesert caused him to lose his job,8 he has not even alleged, much less 26 27 Proved, that he might get his job back if the Sundesert 28 Project were revived. Only SDG&E could restore Thornberry 29 to his job, and SDG&E is not a party to this action.
30 Sec'ause "the solution to (Thornberry's] problem depends on 31 decisions and actions by third parties who are not before 32 the court and who could not' properly be the subject of a..
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1,' decree directing the result sought," Bowker v. HO: t I
541 F.2d 1347, 1350 (9th Cir. 1976), Thornberry has not 2
shown standing to sue.
3 We do not hold that a plaintif f who suf fers an indirect 4
injury of this sort will never have standing to challenge,
5 government action that has arguably caused the injury. If 6
SDGEE of ficials had pr'omised Thornberry his job back were 7
8 the Sundesert project revived, a trier of fact might conclude that Thornberry had shown a substantial likelihood 9
10 of redress.
- see, e.g., Duke Power, 438 U.S. at 76-77 (plans 11 of Power plant officials sufficient to give surrounding 12 citizens standing): village of Arlington Heights v.
13 Metropolitan Housing Development Corp., 429 U.S. 252, 264 14 (1977) (plans of specific developer sufficient to give 15 prospective resident standing). On the record before us, 16 however, it is a mere speculative possibility that the 17 relief sought would remedy Thornberry's injury.
18 B.
The Utilities 19 The PCEE case comes to us in a different procedural 20 posture and on quite different facts. The plaintiffs, PGEE 21 and SCE, allege direct injuries. They claim that the 22 Warren-Alquist Act and the Nuclear Laws impose burdens on 23 them which have caused them to cancel plans to build nuclear 24 plants. Since the redress of these injuries would not 25 depend upon the actions of third parties not before the j
26 court, our inquiry ca'n be limited to a single question:
27 whether the plaintiffs' injuries are " fairly traceable" to 28 the Warren-Alquist Act and the Nuclear Laws. ~ Arlington 29 Reichts, 429 U.S. at 261-62.
If the statutes directly
~
30 caused the claimed injuries, we can assume for standing l
31 purposes that the injuries would be redressed by 32 invalidation of the statutes. See Davis v. United States '
l 1
P*"
h
g Department of Housing & Urban Development, 627 F.2d 942, r
2 944-45 (9th Cir. 1980).
3 The court below limited.its grant of summary judgment 4
for the utilities to the issue of preemption. On the issue 3
of whether the utilities had standing, the court held a 6
trial pursuant to Fed. R. Civ. F. 56(d).
Although standing 7
is usually determined on the pleadings, a trial may be held 3
if the facts alleged to support standing are in dispute.
9 Cladstone. Realtors'v. Village of Bellwood, 441 U.S. 91, 115 10 n.31 (1979). A reviewing court is then bound by the trial 11 court's findings of fact unless they tre clearly erroneous.
12 Duke Power, 438 U.S. at 74 n.19.
13 The trial court found that both PG&E and SCE had decided 14 to include nuclear plants among their power generating 15 facilities in the 1990'st that PG&E had planned to build a 16 nuclear plant known as stanislaus, for which it had filed a 17 notice of intention with the Energy Commissions that SCE had 18 planned to participate in the building of two nuclear plants 19 known as Nuclear 1 and Nuclear 23 and that both PG&E and SCE 20 had cancelled their plans in the belief Chat, as a practical 21 matter, the challenged statutory provisions made it 22 impossible for them to proceed. The court further found 23 that PG&E and SCE would reinstate their plans to build 24 nuclear plants if the challenged statutes were invalidated.
25 The Energy Commission contends here, as it did in the 26 trial court, that the utilities' proposed nuclear plants
(
27 would not be built even if the challenged statutes were l
28 invalidated. The Energy Commission has presented evidence 29 showing that many planned nuclear plants have been cancelled 30 in recent years due to federal regulatory restraints, safety l
31 concerns growing out of the Three Mile Island incident, 1
32 difficulties in obtaining financing, and reduction in demand l
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, for electricity. The trial court specifically found that
,1 the utilities had considered these factors, and had 2
3 nevertheless decided to proceed with their nuclear plans if 4
the challenged provisions of the Warren-Alquist Act were i
5 struck down.
6 We cannot say that the findings of the court below are 7
clearly erroneous. It is true, as the Energy Commission 8
asserts, that many factors beyond the utilities' control 9
might eventually keep the proposed plants from being built.
l 10 But the utilities do not lack standing merely because they 11 would still have to secure financing, meet the requirements 12 of the Nuclear Regulatory Commission, and comply with other 13 regulations. As the supreme Court has pointed out, all 14 construction projects "are subject to some extent to similar 15 uncertainties." Arlingtor Heights, 429 U.S. at 261.
16 Because the challenged statutes stand as an absolute barrier 17 to construction of the proposed plants, and because that 18 barrier will be removed if the utilities secure the 19 injunctive relief they seek, it is irrelevant that an 20
) injunction would not guarantee that the plants will be 21 built. jbl. It is sufficient that the utilities intend to 22 proceed if the statutes are invalidated. The utilities 23 therefore have standing to sue.
l 24 25 III 26 RIPENESS 27 We next consider whether any of the challenges to the
~
28 statutory provisions before us are ripe for review.
l 29 The doctrines of standing and ripeness are closely 30 related, in that the application of either is intended to 31
" prevent courts from becoming enmeshed in abstract questions 32 which have not concretely affected the parties." Ponce v.
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An d ru s. 586 F.2d 733, 737 (9th Cir. 1978). Like standing, g
2 the ripeness doctrine is based in part upon the article III g
3 requirement that courts decide only cases or controversies.
4 Regional Rail 3eorganization Act cases, 419 U.S.102,138 5
(1974). The exercise of judicial restraint, however, is an 6
added ingredient of the ripeness doctrine by which courts 7
can decline to decide issues which are not yet fit for 8
adjudication. I d,.
Thus, while both doctrines require us to 9
ask whether the plaintif f has suf fered hara, ripenes s 10 requires an additional inquiry into "whether the hara 11 asserted has natured sufficiently to warrant judicial 12 intervention." Warth v. soldin, 422 U.S. 490, 499 n.10 13 (1975).
14 In deciding whether an issue is ripe for review, we 15
- evaluate both the fitness of the issues for judicial 16 decision and the hardship to the parties of withholding 17 court consideration." Abbott Laboratories v. Cardner, 18 387 U.S. 136, 148-49 (1967): see Western oil & Gas 19 Association v. United States Environmental Protection 20 Agency, 633 F.2d 803, 807 (9th Cir. 1980); Pence, 586 F.2d 21 at 737.12./ A challenge to a statute or regulation that 22 has not yet been applied is generally considered fit for 23 judicial determination if the issue raised is a " purely 24 legal one," Abbott Laboratorie s, 387 U.S. at 149, or one 25 which "further factual development will not render more 26 concrete." Western oil & Gas, 633 F.2d at 808: see Gardner 27
- v. Toilet Goods As sociation, 387 U.S. 167, 171 (1967). Cn 28 the otner hand, if the issue would be illuminated by the 29 development of a better factual record, the challenged 30 statute or regulation is generally not considered fit for 31 adjudication until it has actually been applied. Regional 32 Rail Reorganization Act cases, 419 U.S. at 143-44: Ponce,.
I
l586F.2dat737&n.12.
3 With these principles in mind, we address first, the 2
l 3
general certification scheme for electric power planter second, the requirement that utilities acquire development 4
5 rights surrounding their proposed plants: third, the 6
requirement that utilities propose three alternate sites for 7
their plants: and finally, the restrictions imposed by the 8
Nuclear Laws.
9 A.
The Warren-Alquist Act 10 1.
The certification system 11 The certification requirement is the centerpiece of the 12 Warren-Alquist Act's regulatory schese. In order to decide 13 whether to certify a proposed plant, the Energy Commission 14 gathers information from many sources including the 15 applicant, on a wide variety of issues. The utilities 16 challenge,the Energy Commission's power to gather such 17 information, as well as its power to deny certification.
18 We find that the challenges to the provisions 19 establishing this regulatory scheme, Cal. Pub. Res. Code 20
(( 25500, 25502, 25504, 25511, 25512,<25514, 25516, 25517, 21 25519, 25520, 25523, 25532, are not ripe for adjudication.
22 on the record before us, we have no way of knowing what 23 types of information the Energy Commission might require of 24 the utilities, or to what purposes the information might be 25 put.
As we explain infra at pp. 24-30, the utilities' l
I 26 preemption clain may depend upon the reasons for which the 2-Energy Commission requests information or, ultimately, its 28 ressons for denying certification. We cannot presently tell 29 whether the Energy Commission will ever deny certification, 30 or whether such a denial night be based upon impermissible 31 reasons. Because the issue presented " requires factual t
32 development, and should not be decided in the abstract,"
4 7-
g Ponce v.
Andrus, 586 F.2d 733, 737 (9th Cir. 1978), we hold 2
that the challenges to these sections are not ripe.
3 We also note that a delay in adjudication will not cause 4
i any undue hardship for the parties. The certification 1
5 scheme, in general, does not have an "immediate and 6
substantial impact" on the utilities, Gardner v. Toilet 7
Goods Association, 387 U.S. 167, 171 (1967): neither PG&E 8
nor SCE has a notice of intention or application for certification pendin'g,2g/ and the threat that procedural' 9
10 burdens might someday be imposed or that certification might 11 soseday be denied for failure to meet Energy Commission 12 standards is remote at best.
13 The utilities contend that the certification system 14 precludes planning for new nuclear plants, and thus does 15 have an immediate impact. In the utilities' view, their 16 planning abilities are compromised by "the risks that the,
17 Energy Consission will deny certifiyation and/or the 18 plaintiffs will be caught in a maze of conflicting decisions 19 and requirements imposed by the Consission and the NRO.*
20 Such risks are, however, present whenever a plaintiff 21 challenges a statute that has not yet been applied.
E.g.,
22 Boating Industry Associations v. Marshall, 601 F.2d 1376, 23 1384-85 (9th Cir. 1979). The utilities cannot establish a 24 justiciable controversy by simply asserting that the risk of 25 future hara causes them a present injury. As we said in Sea 26 Ranch Association v. California coastal Zone Conservatio'n 27 commissions, 537 F.2d 1056 (9th Cir. 1976), "[a] case or 28 controversy is not presented simply because a party is 29 subject to.a general regulatory process which, when applied 30 to the specific facts developed in some future 31 administrative proceeding, might cause a state agency to 32 take a particular action which some court might thereafter.
7___.
determine to be unconstitutional."
Id,. at 106J (emphasis in g
I original). See Toilet Goods Association v. Gardner, 2
1 3
387 U.S. 158, 163 (1967).
4 2.
The acquisition of development rights 5
A similar analysis convinces up that the challenge 6
to section 25528 is not ripe for review. In one sense, it 7
presents a purely legal questions can California require a a
8 utility to acquire development rights so as to limit the 9
population density surrounding its nuclear plants, when the 10 NRC has not done so? Several factors persuade us, however, 11 that the question would be better decided after the statute 12 has been applied.
13 First, the Energy Commission may not need to exercise 14 its power to require acquisition of development rights. The 15 Energy Commission is directed to waive the requirement to 16 the extent that existing land use laws maintain a safe, 17 population level.
Cal. Pub. Res. Code i 25528(c). we have 18 no way of knowing at present whether the Energy Commission 19 will find such laws to be insufficient in any particular 20 case. We are reluctant to rule on the constitutionality of 21 a statute that may never be used. See Rabbitt v. United 22 Farm Workers National Union, 442 U.S. 289, 305 (1979).
23 Moreover, the statute contemplates that the Energy 24 Commission will ordinarily follow NRC standards on 25 population density.
Cal. Pub. Res. Code $ 25528(b).21/
26 It is not clear whether the statute authorizes the Energy 27 Commission to set standards dif ferent from those of the 28 NRC.
To date, the Energy Commistion has neither interpreted 29 the statute nor set different standards. If it did so, our 30 pre'emption analysis might be affected.
~
31 For these reasons, and because we see no harm to the 32 parties in delay, we hold that the utilities' challenge is.
not ripe. The issue must await the Energy Commission's g
enforcement of section 25528 in the face of an actual 2
SPplication for certification.
3 3.
The three-site requirement 4
We find that section 25503, requiring a utility to 5
include at least three alternate sites in its notice of 6
7 intention, is ripe for review.22/ Unlike the other a
challenged provisions, the validity of this section is 9
unlikely to depend upon the factual setting in which it is 10 applied. The section applies unequivocally to any utility 11 wishing to submit a notice of intention. Its operation is 12 in no way hypothetical or speculative. See Regional Rail 13 Reorganization Act cases. 419 U.S. 102, 143 (1974). We 14 therefore see no reason to delay adjudication until a 15 utility actually submits a notice of intention containing 16 less than three sites. *Where the inevitability of the 17 operation of a statute against certain individuals is 18 patent, it is irrelevant to the existence of a justiciable 19 controversy that there will be a time delay before the 20 disputed provisions will come into effect."
Id.: see i
21 Nyquist v. Mauclet, 432 U.S. 1, 6 n.7 (1977).
22 3.
The Nuclear Laws 23 1.
sections 25524.1 and 25524.3 24 The challenges to these sections do not present 25 justiciable controversies. Section 25524.1(a) bars only
~
26 nuclear plants which require fuel rod reprocessing, and no such plants are currently being planned.23/ The Energy 27 28 Commission has specifically concluded that fuel rod 29 reprocessing is not currently required, either by the 30 federal government or by exil?.ing technology. In the Matter 31 of Implementttion of Nuclear Reprocessing and waste Disposal 32 statutes, Nos. 76-NL-1, 76-NL-3 at 2-3 (ERCDC Jan. 25.
p w.
r-,
m w--
w.
e
~.
1978). Section 25524.1(a) therefore has no present effect
,1 and poses no concrete threat to the utilities.
2 3
Eection 25524.1(b) requires the Energy Commission to determine the adequacy of nuclear plants' spent fuel storage
)
4 5
capacity. The Energy Commission intends to make such a detarainstion on a case-by-case bcsis, as Lt.e ;tatuts 6
7 requires. In the Matter oi Isolementation of Nuclear Reprocessing and_ggste Disposal Statutes Nos. 76-KL-1, 8
9 76-NL-3 at 5 (ERCDC Jan. 25. 197&). Although an Energy 10 Commission committee report at one point recommended 11 requiring all nuclear plants to provide a specified amount 12 of storage space, see Nuclear Fuel Cycle Committee, Status 13 of Noelear Fuel Reprocessing, Spent Puel Storsqe and 14 High-Level Waste Disposal 113 (ERCDC Draf t Report Jan.11, 15 1978), the Energy Commission has not adopted such a 16 requirement. Beccuse we cannot know whether the Energy 17 Cornission will ever find a nuclear plant's storage capacity 18 to be inadequate, we hold that the challenge to section 19 25524.1(b) is not ripe for review.
20 Section 25524.3 imposed a moratorium on certification of 21 nuclear plants pending submission of a certain report to the 22 California legislature. Such a report was adopted by the 23 Energy Commission on September 13, 1978.. In the Matter of I
l 24 the Determinations of the Commission Pursuant to Public 25 Resources code section 25524.3, No. 76-NL-2 (ERCDC Sept. 13, 26 1978). The record provides no support for the lower court's 27 finding that this report was not submitted to the 28 legislature, and a member of the Energy Commission has 29 testified that it was so submitted. We conclude that the 30 challenge to section 25524.3 is moot.
31
- 2. 'section 25524.2 l
32 Although sections 25524.1(a) and 25524.3 pose no e
(
present barrier to the development of nuclear power in, g
2 l
California, we cannot say the same of section 25524.2.
This i
section imposes a moratorium on the certification of new l
3 nuclear plants until the Energy Commission has found, and 4
has informed the legislature, that a federally approved 5
6 method of nuclear waste dispesal exists. The Energy 7
Commission has not made the required findings. Section 8
25524.2 therefore remains in effect, and bars the e
certification of any new nuclear plants in California.
10 Section 25524.2 does not have any immediate impact on 11 the utilities: Ehey may continue to submit notices of 12 intention and applications for certification for their 13 proposed nuclear plants, and the Energy Commission must 14 still receive and process the notices and applications even 15 though the required findings have not been made.
Cal. Pub.
16 Res. Code i 25524.2(d). No plants may be certified until 17 the findings are made, but the utilities concede that their pro'osed plants are many years from being eligible for 18 p
19 certification.
20 Nevertheless, we conclude that the challenge to section 21 25s?S.2 is ripe for adjudication. The issue before us is a 22 purely legal one, and our ability to deal with it would not 23 be enhanced if we were to delay review. _See Duke Power Co.
24
- v. Carol'ina Environmental Study Group, Inc., 438 U.S. 59, 25 81-82 (1978). Postponement could, moreover, work 2G substantial hardship on the utilities. On the one hand, l
l 27 they could proceed with their plans in the hopes that, when 28 the time for certification came, either the required 29 findinIgs would be made or the law would be struck down.
30 This would require massive expenditures over a number of l
31 years, expenditures that quite possibly could not be 32 recovered unless the plant were eventually certified.
l - -..
Y
g 3 Alternatively, the utilities could abandon their plans to d
2 use nuclear power, with the result that no challenge to 3
section 25524.2 would ever be ripe.
4 We see no need to place the utilities in such a 5
quandary. Since consideration of the underlying legal 6
issues would be no easier,in the context of a specific 7
certification proceeding, we hold that the issues are ripe.
8 We accordingly turn to the merits of the utilities' 9
preemption claim as it relates to sections 25503 and 10 25524.2.24/
11 IV 12 PREEMPTION 13 When a state statute is challenged under the supresacy 14 clause U.S. Const. art. VI, cl. 2, our inquiry is directed 15 to whether Congress intended to prohibit the states from 16 regulating in such a manner. We start wit'h the assumption 17 that the states' police powers were not to be superseded 18 "unless that was the clear and manifest purpose of 19 Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 20 230 (1947); accord, e.g.,
Ray v. Atlantic Richfield Co.,
21 435 U.S. 151, 157 (1978): Jones v.
Rath Packing Co.,
22 430 U.S. 519, 525 (1977).
23 congress's purpose is most clear, of course, when the 24 federal statute at issue explicitly prohibits state 25 regulation in the same field.
E.g.,
Rath Pseking, 430 U.S.
26 at 530-31.
When the federal statute contains no such 27 prohibition, congressional intent to preespt may be inferred
~
28 from the nature of the federal regulatory scheme, e.g.,
Ra y, 29 435 U.S. at 163; City of Burbank v. Lockheed Air Terminal, 30 Inc., 411 U.S. 624, 633 (1973), or from the subject matter 31 being regulated, e.g.,
Rice, 331 U.S. at 230 Eines v.
32 Da vidowi t z, 312 U.S. 52, 62-63 (1941). Congressional intent.
m -
to preempt must, however, be unambiguous. Florida Line &
g
\\
l Av endo Crowers, Inc.
v.
Paul, 373 U.S. 132, 146-47 (1963).
2 l
3 An intent to preempt cannot be inferred from the mere fact i
4 that the federal statute is detailed and complex, see E3, Canas v. Bica. 424 U.S. 351, 359-60 (1976); New York State 5
6 Department of social Services v. Dublino, 413 U.S. 405, 415 7
(1973), or because the state legislation touches an area of 8
Predominantly national concern, e.g.,
De Canas, 424 U.S. at g
354-5$2 Kewanee oil Co. v. Bieron Corp., 416 U.S. 470 (1974).
10 Even if Congress did not intend to preempt all state 11 legislation in a given field, a state law must be held 12 invalid to the extent that it actually conflicts with 13 federal law.
For example, a conflict will be found "where 14 compliance with both federal and state regulations is a P ysical impossibility," Florida Line, 373 U.S. at 142-43, h
15 16 or where the state law " stands as an obstacle to the 17 accomplishment and execution of the full purposes and 16 objectives of Congress," Hines, 312 U.S. at 67.
- Accord, 19 Rir, 435 U.S. at 158 Rath Packing. 430 U.S. at 525-26.
20 Once again, however, the presumption operates in favor of 21 the validity of the state lawr courts are not to seek out 22 conflicts between state and federal regulation where none 23 clearly exist. Huron Portland Cement Co. v. City of 24 Detroit, 362 U.S. 440, 446 (1960): see Rice, 331 U.S. at 237.
25 A.
Congressional Intent to Preempt 26 1.
Division of federal and state authority,in 27 the Atomic Energy Act 28 To determine whether Congress intended to preempt 29 states fron, regulating nuclear power in the ways California l
30 has ' chosen, we start with an examination of the Atomic 31 Energy Act of 1954, 42 U.S.C. $$ 2011-2296 (1976 & Supp. III 32 1979). The history of the Atomic Energy Act of 1954 has f'
y
., been reviewed extensively elsewhere, see, e.g., Northern 2
States Power Co. v. Minnesota, 447 F.2d 1143, 1147-52 (8th 3
Cir. 1971), aff'd men., 405 U.S. 1035 (1972): Murphy & La 4
Pierre, Nuclear "Moratorius* Legislation in the States and 5
the Supremacy Clause: A Case of Express Preemption, 6
76 Colum. L. Rev. 392, 394-410 (1976), and need only be 7
summarized briefly here.
8 This country's exploration of the peaceful uses of 9
nuclear power began shortly after World War II, with passage 10 of the Atomic Energy Act of 1946, ch. 274, 60 stat. 755.
11 The 1946 Act transferred responsibility for the development 12 of nuclear power from the military establishment to the civilian Atomic Energy Commission (AEC),2}/ but left the 13 14 federal government with complete control over all nuclear 15 materials and facilities. This federal monopoly ended with 16 passage of the Atomic Energy Act of 1954, which allowed 17 private industry to participate for the first time in the 18 development of nuclear power. The 1954 Act authorized 19 private industry to conduct research and build commercial 20 reactors, under licenses from the AEC.
There were no 21 immediate commercial applications of nuclear power at the 22 time the 1954 Act was passed, but Congress believed that 23 nuclear power at a competitive price was at least "on the 24 horison."
5.
Rep. No. 1699, 83d Cong., 2d Sess., reprinted 25 IIL [19543 U.S. Code Cong. & Ad. News 3456, 3458.
26 Two sections of the Atomic Energy Act of 1954 are 27 significant in determining how Congress intended to divide 28 regulatory responsibility between the states and the federa'l 29 government. Section 271, 42 U.S.C. $ 2018 (1976).. Provides 30 tha't nothing in the Atomic Energy Act "shall be construed to 31 affect the authority or regulations of any Federal, State, 32 or local agency with respect to the generation, sale, or.
w.
.m=
em.
b
transmission of electric power produced through the use of g
nuclear facilities licensed by the [ Nuclear Regulatory]
2 commission." This section was included in the 1954 Act to 3
ensure that electricity produced by nuclear plants would be 4
5 subject to the same regulatory authority as electricity 6
Produced by any other means. See 100 Cong. Rec.12015, 7
12197, 12198, 12199 (1954) (remarks of Sen. Hickenlooper &
8 Sen. Humphrey); H.R. Rep. No. 567, 89 th Cong., 1st se s s.,
g reprinted in (19653 U.S. Code Cong. & Ad. News 2775, 2779.25/ The states' existing authority to regulate 10 11 utilities was to remain unchanged. As Senator Hickenlooper, 12 the floor manager of the Senate bill, explained:
13 we take the position that electricity is electricity. Once it is produced it 14 should be subject to the proper regulatory body, whether it be the 15 Federal Power Consission in the case of interstate transmission, or State' 16 regulatory bodies if such exist, or aunicipal regulatory bodies. We feel 17 that there is no difference and that it should be treated as all other 18 electricity which is regulated by the public.
19
[Section 2713 is designed to keep the regulatory authority exactly as it 20 is now, traditionally and under the law.
21
- 100 Cong. Rec. 12015 (1954).
22 By 1959, Congress recognized that a more precise line 23 needed to be drawn between the regulatory authority of the 24 AIC and that of the states. Section 274, 42 U.S.C. I 2021 25 l
(1976), was added to the Atomic Energy Act of 1954 in an 26 attempt to draw such a line. See S. Rep. No. 870, 86th 27 Cong., 1st Sess., reprinted in (19593 U.S. Code Cong. & Ad.
28 News 2872, 2873-74, 2878-80. Section 274 authorized the AIC 29 to turn over to particular states the regulatory responsibility for radioisotopes and other less hazardous nuclear materials. The AEC and its successor agency, the N RC, retained sole responsibility for regulating certain l
more hazardous activities, including "the construction and I
r operation of any production or utilizat' ion facility," i.e.
2 3
nuclear plant.
I 274(c)(1), 42 U.S.C. I 2021(c)(1): see t
8 l 11, 42 U.S.C. 5 2014(cc) (1976). Subsection ('k), however, 4
l 5
Provided that *(n]othing in this section shall be construed 6
to affect the authority of any state or local agency to 7
regulate activities for purposes other than protection 8
against radiation hazards." i 274(k), 42 U.S.C. l 2021(k).
9 The parties' dispute centers on these sections. The 10 utilities argue that section 274(c) gives the NRC solo 11 suthority to regulate, for all purposes, the construction 12 and operation of nuclear plants. With regard to the 13 three-site requirement and moratorium provision now before 14 us, the utilities assert that section 274(c) authorizes the 15 NRC to delay licensing of any further nuclear plants until a 16 method of waste disposal is developed, or to require
[
17 utilities to submit alternate sites for their proposed P ants.
Since section 274(c) gives the NRC the power to l
18 19 regulate in this manner, the utilities argue that it n'cessarily takes away the states' power to regulate.
20 e
21 We think the preemptive effect of section 274(c) is 22 considerably narrower, since it must be read in conjunction l
23 with sections 271 and 274(k). Section 271 preserves the
\\
l 24 states' traditional authority over electrical utilities, and l
25 thus paraits the states to decide whether additional power 26 plants are needed. The states can also require the l
l 27 submission of accounting data, regulate rates, and the 28 like. Congressions1 intent with respect to these powers is 29 clears the states are permitted to treat nuclear plants 30 j
exactly as they would all other power plants. See 100 Cong.
1 31 Rec. 12015-16, 12197-200 (1954).
32 Congressional intent with respect to section 274 is e
I
nearly as clear. Both the hearings on section 274 and the g
2 report of the Joint committee on Atomic Energy demonstrate i
l Congress's intent to assert exclusive federal control over 3
the radiation hazards associated with nuclear 4
materials.22/ Limited regulatory authority may be turned 5
6 over to the states pursuant to section 274(b), but section 7
274(c) requires the NRC to retain full regulatory control 8
over matters concerning radiation hazards.
- See, e.g.,
9 Federal-State Relationships, supra note 27, at 488-97:
10 Letter from A.R. Luedecke to Senator Clinton P. Anderson, 11 reprinted in Federal-State Relationships, supra note 27, at 12 500: S. Rep. No. 870, 86th Cong., let Sess., reprinted in 13
[1959] U.S. Code Cong. & Ad. News 2872, 2879. However, we 14 find no indication in section 274 or elsewhere in the Atomic 15 Energy Act of 1954 that Congress intended to preempt any 16 state regulation other than that involving radiation 17 hazards. On the contrary, section 274(k) specifically 18 allows the states to regulate "for purposes other than 19 protection against radiation hazards." Tne committee report 20 explains that "[t]his subsection is intended to make it 21 clear that the bill does not impair the State authority to 20 regulate activities of the AEC licensees for the ma'nifold 23 health, safety, and economic purposes other than radiation 24 protection."
S. Rep. No. 870, 86th Cong.,1st Se s s.,
25 reprinted in (19593 U.S. Code Cong. & Ad. News 2872, 2882.
2G Although section 274(c) gives the NRC sole authority to 27 regulate "the construction and operation of (nuclear power 28 plants)," the specific non-preemption language contained in 29 sections 271 and 274(k) must control the general language of 30 section 274(c). We therefore conclude that Congress 31 intended to preempt only state regulation of radiation hazards associated with nuclear power 28/ and not state 32.
ye
regulation for other purposes.21/
,g 2
No find support for our reading of the statute in the 3
consistent position of the NRC, the AEC, and the courts, 4
that states are permitted to regulate in such areas as 5
economics and the environment. The AEC originally asserted 6
that environmental considerations were the exclusive concern 7
of the states, and could not be taken into account during 8
AEC licensing proceedings. New Maapshire v. Atomic Energy 9
consission, 406 F.2d 170 (1st cir.), cert. denied, 395 U.S.
10 962 (1969)! see Vermont Yankee Nuclear Power Corp. v.
11 Natural Resources De fense Council, Inc., 435 U.S. 519, 531 &
12 n.10 (1978). In New Hampshire v. AEC, for example, the AEC 13 argued that it did not need to consider the possibility that 14 a proposed nuclear plant would cause thermal pollution, 15 because "no licensing actica on its part relieved a licensee 16 from any obligation to comply with state authorities
.. which do have jurisdiction to deal with thermal 17 18 ef fects of power plant discharges." 406 F.2d at 173.
The 19 court upheld the AEC's position, and the AEC continued to 20 disregard environmental considerations until the National 21 Environmental Policy Act of 1969, 42 U.S.C. ll 4321-4347 22 (1976), required it to take environmental issues into 23 account. See Calvert Cliffs' Coordinating Committee, Inc.
24
- v. United states Atomic Energy Commission, 449 F.2d 1109, 1112-13 (D.C. Cir. 1971).2EI 25 26 Economic considerations have similarly been regarded as 27 outside the purview of the AEC and the NRC.
The court in 28 Cities of Statesville v. Atomic Energy consission, 441 F.2d 29 962, 975 (D.C. Cir. 1969) (en banc), remarked that the AEC co'ncerns itself not with economic feasibility but with 30 a
31 practical development and application of (nuclear) energy."
32 And in versont Yankee Nuclear Power Corp. v. Natural.
7
stesources Defense Council. Inc., 435 U.S. 519, 550 (1978),
g
]theSuPreseCourtcitedsection274(k)'fortheproposition 2
p that *(t]here is little doubt that under the Atomic Energy 3
1 Act of 1954, state public utility commissions or similar 4
bodies are empowered to make the initial decision regarding 5
the need for power.... The [ Nuclear Regulatory]
6 Commission's prise area of concern in the licensing context, 7
8 on the other hand, is national security, public health, and h
9 safety."
see, State er rel. titility Consuans Council v.
10 Public Service Commission, 562 s.w.2d 688, 698-99 (Mo.
11 APP.), cert. denied. 439 U.S. 866 (1978) ("The federal 12 government regulates how nuclear power plants will be 13 constructed and maintained: the State of Missouri regulates 14 whether they will be constructed.")
15 In concluding that Congress intended to preempt only 16 regulation of radiological hazards, we join the only other 17 circuit court to have considered the issue thus far.
In 18 Northern States Power Co. v. Minnesota, 447 F.2d 1143 (8th 19 Cir. 1971), aff'd men., 405 U.S. 1035 (1972), the Eighth 20 circuit was faced with a Minnesota statute regulating the 21 level of radioactive discharges from nuclear plants. The 22 standards imposed by Minnesota paralleled federal standards, 23 but were considerably more stringent.
J_d,. at 1145. The 24 court concluded that sectio'n 274 of the Atomic Energy Act of 25 1954 " demonstrates Congressional recognition that the AEC at 26 that time possessed the sole authority to regulate radiation 27 hazards associated with by-product, source, and special l
28 nuclear materials and with production and utilization 29 facilities." M. at 1149. The court then went on to 30 exp' lain the effect of section 274(k):
31 The only logically acceptable reason for inclusion of subsection (k) within 32 (section 2743 was to make it clear that Congress was not, by subsection (c) of,
l l
r j
[
c
=
the 1959 amendment, in any way further 1
4 1
limiting the power of the states to
)
1 regulate activities, other than 2
t l
radiation hazards, associated with those areas over which the AEC was 3
forbidden by that subsection to relinquish its control.
4 l$.. at 1150 (emphsais in original).21/ Other courts which 5
have considered the states' power to regulate nuclear plants 6
have made a similar distinction, and have concluded that the 7
Atomic Energy Act preempts only regulations directed at 8
radiationhazards.32/
9 10 2.
The moratorium provision and the three-site 11 requirement Since Congress intende$ to permit states to 12 13 regulate "for purposes other than protection against 14 radiation hazards." i 274(k), we must next inquire whether 15 the California statutes at issue here are aimed at radiation 16 hazards. We conclude that they~are not.
The moratorium provision, Cal. Pub. Res. Code $ 25524.2, 17 was part of a legisintive package 23! enacted as an 18 19 alternative to a proposed voter initiative, Proposition 15.
20 Proposition 15 would have ultimately barred any nuclear I
21 plants in California, unless (1) the federal limit on 22 liability for nuclear accidents, 42 U.S.C. (( 2012, 2014, 23 2073, 2210 (1976 & supp. III 1979) (the Price-Anderson Act),
24 was removedt (2) the California legislature determined 25 reactor safety systems to be adequate and (3) the 26 California legislature determined that nuclear wastes could l
27 be stored without danger to the public. See Resssessment, supra note 33, at 159-63 (reprinting text of " Proposition 15).
28 29 The California Assembly Committee on Resources, Land 30 Use, and Energy, which proposed the package of bills that
(
31 became the Nuclear Laws, published a lengthy report 32 explaining Proposition 15 and contrasting it with the.
P
.v
+m p-
, -. -, -.., -..~,.
r v
v
committee alternatives. Re a s se s sment, supra note 33.
g Proposition 15 was intended to deal with a number of.
2 3
perceived problems with nuclear power, some safety-related i
and some economic. One major problem identified in the 4
t committee report was the lack of a federally approved method 5
6 of disposing of nuclear wastes. The committee classified 7
this as a " stipulated" probles, since representatives of 3
industry and government, as well as critics of nuclear
~
e power, recognized the problem's existence.
Id. at 2, 12.
10 In addition, the committee classified the problem as "largely economic or the result of poor planning, not 11 12 safety-related."
Io,. at 18 (emphasis in original). As the 13 committee saw it, the lack of a federally approved method of 14 waste disposal created a " clog" in the nuclear fuel cycler 15 more wastes were continually being produced, storagt space 16 was limited, and no permanent means of disposal was 17 available. The committee noted that the costs of nuclear 18 power were escalating sharply, and that " increasing 19 disappointments in portions of the fuel cycle" were a 20 contributing factor.
Id,. at 27-28.
Several government 21 witnesses testified that the continued development of 22 nuclear power in the absence of a method of waste disposal 23 was inadvisable.
Id. at 18-21.
24 The safety considerations associated with nuclear waste 25 disposal were viewed by the committee as quite a different 26 probles, one on which industry representatives and nuclear 27 critics largely disagreed.
Id,. at 3, 12-13.
Critics of 28 nuclear power believed that the methods of waste disposal 29 being considered by the federal government would be 30 in$dequate to safeguard the wastes during the hundreds of 31 years that they remained dangerous. The nuclear industry, 32 on the other hand, believed that the methods of waste -
g 3 disposal being considered would prove adequate once the 2
tederal government had invested suf ficient time and money in 3
research and testing. See id. at 67-71.
Proposition 15 was designed to' deal with both types of 4
5 Probless associated with nuclear waste disposal. The 6
Propositien would have banned nuclear plants unless the 7
California legislature determined that nuclear wastes could l be " stored or disposed of, with no reasonable chance 8
9 of intentional or unintentional escape of such wastes or 10 radioactivity into the natural environment which will 11 eventual 1/ adversely affect the land or the people of the 12 State of California." Proposition 15, i 1 (vroposed Cal.
13 Gov. Code i 67503(b)(2)), reprinted in Reasses gent, supra 14 note 33, at 160.
Thus, the California legislatu o would 15 have had to make an independent judgment about whether a 16 Proposed method of waste disposal was safe.3d/
j 17 Section 25524.2, in contrast, was intended to deal only 18 with the " stipulated" problem caused by the lack of any 19 approved method of waste disposal. The committee explained 20 that its bills were " designed to provide a pause in the i
l 21 deployment of nuclear power plant's until [certain] problems l
l 22 which may ' clog' the nuclear fuel cycle are resolved."
i 23 Reassessment, supra note 33, at 154-55.
One of the " major l
24 distinguishing features" Sifferentiating Proposition 15 and 25 the committee bills was that "[w3aste disposal safety is not i
26 directly addressed by the bills, which ask only that a 27 method be chosen and accepted by the federal government."
l
~
28
- 11. at 156 (emphasis in original).
29 As the. committee report sakes clear. section 25524.2 is 30 dir'ected towards purposes other than protection against 31 radiation hazards. While Proposition 15 would have required 32 California to judge the safety of a proposed method of waste i
i l
,1 disposal, section 25524.2 leaves that judgment to the l federal government. California is concerned not with the 2
adequacy of the method, but rather with its existence.EE[
3 Until a method of waste disposal is approved by the 4
5 federal government, California has reason to believe that 6
uncertainties in the nuclear fuel cycle make nuclear power 7
an uneconomical and uncertain source of energy. The 8
legislature has chosen to mandate reliance upon other energy 9
sources until these uncertainti-2s astociated with nuclear 10 power are resolved. We find that such a choice is expressly 11 authorized under sections 271 and 274(k) of the Atomic 12 Energy Act of 1954.
13 The requirement that utilities submit three alternate 14 sites for their proposed plants, Cal. Pub. Res. Code 15
$$ 25503, 25504, 25516, is also unrelated to protection 16 against radiation hazards. The requirement applies to all 17 power plants, nuclear and non-nuclear. It provides 18 California with an ef ficient means of deciding where a 19 proposed. power plant should be located. Such decisions have 20 been regarded as within the statee' authority,' for nuclear 21 as well a s other power plants. During hearings on section 22 274 of ti.e Atomic Energy Act.. it was agreed that state and 23 municipal zoning regulations testablishing, for example, l
24 residential, cosmercial, or industrial zones) would apply te 25 nuclear plants. Federal-State Relationships, supra note 27, 26 at 494 (remarks of Rep. Price & Sen. Eickenlooper). The 27 AEC's general manager pointed out that section 274(k) would 28 permit the courts latitude in sustaining "certain types of 29 soning requirements which have purposes other than control 30 of radiation hazards, even though such requirements might 31 have an incidental effect upon the use of... nuclear 32 materials licenseo [ sic 3 by the Commission." Letter from l
33 4
l 7
A.R. Luedecke to Sen. Clinton F. Anderson, reprinted in g
Federal-State Relationships, supra note 27, at 500. More 2
recently, Congress passed legislation explicitly recognizing 3
2 9
the states' authority to impose " requirement (s3 relating to 4
land use or respecting the siting" of nuclear plants. NRC 5
Authorization Act for Fiscal Year 1980, Pub. L. No.96-295, 6
7 6 108(f), 94 Stat. 780 (1980).
8 California has chosen to determine site suitability on a 9
case-by-case basis rather than through soning laws. The NRC 10 has itself recognized that states " retain the right, even in 11 the face of the issuance of an NRO construction permit, to the 12 preclude construction on such bases as.
13 environmental unacceptability of the proposed facility or 14 site."
Consolidated Edison Company of New YorN, Inc.
15
_(Indian Point Station. Unit No. 2), ALAB-453, 7 N.R.C. 31, 16 34 (1978). California's requirement that utilities submit 17 three alternate sites simply makes the state's suitability 18 determination more efficient. We hold that the Atomic 19 Energy Act does not prevent California from imposing such a 20 requirement.
21 C.
Ccnflict with Federal Purposes and Obioetives 22 Even though we conclude that Congress did not intend to 23 preempt state regulations of the type at issue here, the 24 regulations would nonetheless be preempted if they actually 25 conflicted with federal law.
As noted above, a conflict 26 would arise if compliance with both federal and state 27 regulations were impossible, Florida Line & Avocado Crowers,
~
18 Inc. v. Paul, 373 U.S. 132, 142-43 (1963), or if the state 29 regulations stood as an obstacle to achievesent of 30 con'gressional objectives, Hines v.
Davidowitz, 312 U.S. 52, J1 67 (1941). Cospliance with both federal and California laws 32 is possible in the present case, but the utilities contend ---
___]
that the California laws impermissibly interfere with a g
.I ffederalgoalofpromotingnuclea'rpower.
l 2
l The utilities argue that the introductory sections of 3
the Atomic Energy Act of 1954, $5 1-3, 42 U.S.C.
4 ll 2011-2013 (1976), establish a " Congressional policy to 5
Promote the private development of nuclear power plants."
6 7
These provisions do express Congress's intent to encourage 8
Private industry to enter the nuclear field.
E.g.,
i 3(d),
9 42 U.S.C. $ 2013. They also express Congress's intent that 10 the development of nuclear power be " directed so as to 11 Promote world peace, improve the general welf are, increase the standard of living, and strengthen free competition in 12 13 private enterprise." $ 1, 42 U.S.C. I 2011. In these 14 objectives we do not find an intent to promote nuclear power 15 at all costs.
The Supreme Court has cautioned that "[13n expounding a 16 17 statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the 18 19 whole law, and to its object and policy." Pennhurst State 20 School and Hospital v. Halderman, 49 U.S.L.W. 4363, 4368 21 (April 20, 1981) (quoting United States v. Reirs of 22 Boisdore, 49 U.S. (8 How.) 113, 122 (1849)). Viewing the 23 Atomic Energy Act of 1954 as a whole, we find that Congress 24 struck a balance between state and federal power to regulate.3S/ Inherent in the states' regulatory authority 25 26 is the power to keep nuclear plants from being built, if the 27 plants are inconsistent with the states' power needs, or 28 environmental or other interests. Encompassed in the 29 state's power to enforce soning laws is the power to deny 30 land use to a nuclear plant. A part of the state's power to 31 issue certificates of public convenience and necessity is 32 the power to deny certification for an unnecessary or
9 uneconomic nuclear plant. These state powers, recognizac by j
2 sections 271 and 274(k), are inconsistent with a 8
3 congressional goal of promoting nuclear power at all costs.
4 In any event, legislation since the passage of the 1954 5
Act evidences a change in congtassional outlook, Thi Energy 6
Reorganization Act of 1974,, 42 U.S.C. ll 5801.-((21 (1976),
7 restructured the federal regulation of nuclear power by 8
transferring the AEC's regulatory functions to the NRC and I
9 its promotional functions to the Energy Research and 16 Development Administration (ERDA). W ERDA uss directed 11 to develep all sourcea,of anergy, includirig nuclesr. but 12 only " consistent with warranted priorities." 42 U.S.C.
I 13 5 5801(b). The raport accompanying the Reorganization Act 14 expimiss thu this provision was inearted in response to 15
" deep concerns regarding the possibility of a pro-nuclear 16 bias in ERDA."
- 5. Rep. Yo. 93-92% 93d Cong., 2d Sess.,
17 reorinted in [19743 U.S. Code Cong. & AL Nous 5470, 5476r 18 see id. at 5489. ENDA was expected to " place greater 19 relative emphasis on nonnuclear energy."
_Id. at 5480.
20 ccngress also passed the Fedsral Nonnuclear Energy Rgsearch 21 and Dev41c;+.ent Act of 1974, 42 U.S.C. Il 5901-5917 (L976),
22 directing ERDA to develop "a comprehensive nonnuclear energy 23 research, development, and demonstrption program."
24 42 U.S.C. $ 5905(b)(1).
25 Congress's balanced approach to nuclear power 26 development is further demonstrat d by several acts 27 explicitly permitting states to regulate nuclear plants.
28 The Clean Air Act Amendments of 1977, i 122, 42 U.S.C.
29 1 7422 (supp. III 1979), give states the authority to 30 regulate radioactive air emissio'ns from nuclear plants.
31 states may, if tney wish, establish' emission standards more 32 stringent than those imposed by the NRC.
42 U.S.C. l 74163 -
,1
] H.R. Conf. ' Asp. No.95-564, 95th Cong., let Sess. 143, n
freprintedin(1977]U.S.CodeCong.&Ad. News 1502, 2
1523-24. N Congress recognized that state emission 3-i i
4
?
standards might prove burdensome for utilities intending to i
l l
construct nuclear plants, but concluded that "[t]he costs of 5
6 Protecting the public health... must be considered a cost 7
of doing business for the nuclear power industry."-
E.R.
8 Rep. No.95-294, 95th Cong., 1st Sess. 43, reprinted in 9
(1977] C.S. Code Cong, & Ad. News 1077, 1121. 'the NRC has 10 agreed that a sta b could, under the authority of the Clean 11 Air Act Asondments of 1977, prevent nuclear plants from 12 teing built at all. M., Consolidated Ed! son Company of 13 New York, 7nc. (Inqian Point Station, Unit Et. 2), ALAS-453, 14 7 N.R.C. 31 34 & n.13 (1978). Finally, tw NRC 15 Authoris.1cion Act for Fiscal Year 1980, Pub. L. No.96-295, f
18 94, Stat. 780 (1980), recognizes the states' authority to set 17 nuclear plant siting and land use requirements more 18 stite.Jent than those of the NRC. g. { 108(f). The 19 Authorization Act also makes issuance of an NRC operating 20 license contingent spon state adoption of plans for 21
' responding to nuclear emergencies.
H. l 109(s). In light
! of these demonstrated congressional concerns, we cannot
~
22 23 conclude that the California laws at issue here present an obstacle to congressional goals. N 24 25 The Supreme Court has held that federal regulation 2S
- should'not be deemed preemptive of state regulatory power 27 in the absence of persuasive reasons-either that the nature 28 of the regulated. subject matter permits no other conclusion, 29 or that Congress has unmistakably so ordained." De Canas v.
30 Siea, 424 U.S. 351, 356 (1976) (quoting Florida Line, 31 373 U.S. at 142).
Bere, the Atomic Energy Act of 1954 and 32 the other federal statutes we have discussed establish a
i careful balance between the regulatory responsibilities of g
)
) the f ederal government and the states. Congress has not 2
3 l
" unmistakably... ordained" a goal of promoting nuclear i
power, but has instead regarded nuclear power as one option 4
which the states may choose.
5 In Vermont Yankee Nuclear Power Corp. v. Natural 6
Resources Defense council, Inc., 435 U.S. 519, 558 (1978),
7 the Suprese Court noted that "[tline say prove wrong the 8
decision to develop nuclear energy,' but it is Congress or 9
the States within their appropriate agencies which must 10 11 eventually make that judgment." California has made a 12 judgment only that, for the soment, there should be a 13 moratorium on the construction of new nuclear plants.
Because California's moratorium provision and the three-site 14 15 requirement do not f all within the area reserved to the NRC's regulatory authority under the Atomic Energy Act of 16 17 1954, and because they do not impede congressional goals, we 18 hold that they are not preempted.
19 The grant of summary judgment in Nos. 79-3365 and 20 79-3382 (the E case) is REVERSED, and the case is RE.%4DED 21 for trial or for other proceedings consistent with chis 22 opinion. The judgment in Nos. 80-4265 and 80-4272 (the PG&E 23 case) is REVERSED.
24 25 26 27 28 29 30 31 32.
I
F O O s* WCTES g
2 3
1/
The individual seabers of the Energy Commission are 4
also defendants-appellants in these cases, as are four 5
environmental groups that intervened belows the Natural 6
Resources Defense Council, the Environmental Defense 7
Fund, the Sierra Club, and Californians for Nuclear 8
Safeguards. The Energy Coumission, its individual
~
o members, and the environne'ntal groups will collectively 10 be referred to as "the Energy Commission."
11 12 2/
Twenty-three states filed amicus briefs and 13 statements of interest comparing their regulatory 14 schemes to that of California.
15 16 3/
Section 25503 provides that:
17 Each notice of intention to file an application shall contain at least 28 three alternative sites and related facilities, at least one of which shall 19 not be located in whole or in part in the coastal zone.
In addition, the 20 alternative sites and related electrical facilities may be proposed from an inventory of sites which have 21 previously been approved by the 22 commission in a notice of intent or may be proposed from sites previously 23 examined.
24 Th'is section implements the concept of " site banking":
25 if more than one of the proposed sites is found to be 26 acceptable, the unused sites are to be " banked" by the 27 Energy Commission and made available to other utilities 28 wishing to build power plants. The " site banking" 29 concept is apparently unique to California.
30 31 4/
The Energy Commission is required to issue findings 32 with respect to the proposed power plant's conformity W
with projected power needs and applicable land use laws,
,1 1
id. $ 25514(a), and with respect to the plant's safety 2
3 and reliability, taking into account proposed emergency 4
systess, safety precautions, plans for handling fuels, 5
features to account for seismic hazards, and methods of 6
controlling population density in areas surrounding 7
power plants, ijs. ll 25511, 25514(e). The Energy a
- r Consission may also specify modifications to the power 9
plant'a design, construction, or location.
}d,.
10 l 25514(e).
11 12 5/
The application is to contain a description of the 13 proposed power plant's design, construction, and 14 operatient safetf and reliability informations detailed 15 information about the siter a specification of the fuel 16 to be used projections of the fuel costs and generating 17 costs: the location of proposed power liness and any 18 other information the Energy Commission may require.
19 3 d,. l 25520.
20 21 6/
The findings must address the propossa power 22 plant's compliance with land use, health, safety, 23 environmental, and other standards established by the 24 Energy consissions complianes with applicable laws:
25 efficiency of operations and conformity with projected 26 power needs.
Id,. Il 25216.3, 25402(d), 25523.
27 28 7/
Two of the sections discussed above contain 29
, provisions which apply specifically to nuclear plants.
30 section 25511 requires the submission of information on 31 methods of preventing the diversion of nuclear fuels.
32 and section 25528 provides that the safe level of.
F
t population density surrounding nuclear plants will
,1 2
l generally be that established by th's Nuclear Regulatory l
3 Commission.
4 5
8/
Beta containnee.t is a method of " placing (a 6
nuclear] reactor in a scooped out hole and backfilling 7
with ditt
. to increase. the naggin of safety in the 8
event of an accident which breaches the containment g
building." California Assembly Committee on Resourcas, 10 Land Use, and Energy, Reassessment of Noelear Energy in 11 California A Policy Analysis of Proposition 15 and Its 12 Alternatives 155 (1976).
13 14 9,/
Section 25524.2 provides in relev' ant parts 15 No nuclear fission thermal powerplant, including any to which the 16 provisions of this chapter do not otherwise apply, but excepting those 17 exempted herein, shall be permitted land use in the state, or where 18 applicable, be certified by the commission until b3th conditions (a) 19 and (b) have been met 20 (a) The consission finds that there has been developed and that the i
21 United States through its authorized agency has approved and there exists a 22 demonstrated technology or means for the disposal of high-level nuclear 23 wasts.
24 (b) The commission has reported its findings and the reasons therefor 25 pursuant to paragraph (a) to the Legislature.
l (c) As used in this section, 28
" technology or means for the disposal of high-level nuclear wasts" means a 29 method for the permanent and terminal 30 disposition of high-level nuclear waste. It shall not necessarily require that facilities for the 31 application of such technology and/or means be available at the time the 32 consission makes its findings. Such disposition shall not necessarily.
P
~ _ _. _ -.
.y_
preclude
- the possibility of an approved
.I 7
process for retrieval of such waste.
I 2
j (d) The commission shall continue to receive and process notices of 3
intention and applications for certification pursuant to this division 4
but shall not issue a decision pursuant to Section 25523 granting a certificate 3
until the requirements of this section have been set.
All other permits, 6
licenses, approvals or authoriaations for the entry or use of the land, including orders of court, which may be g
required may be processed and granted by the governmental entity concerned but construction work to install g
permanent equipment or structures shall 10 not connance until the requirements of this section have been set.
11 (e) Any nuclear fission 12 Powerplant is exempted froa the provisions of this section if prior to 13 the date on which this section is chaptered an electric utility has 14 Performed substantial construction on such powerplant ar.d has incurred 15 substantial expense for construction and for necessary materials for such 16 Powerplant, including, but not limited to, the following sites and 15 facilities.
15 10]
The plaintiffs were Robert Thornberry, an 19 individuals the Pacific Legal Foundation and the San 20 Diego Coalition, nonprofit corporations: the San Deigo 21 Sectica of the American Nuclear Society and th,e San 22 Diego County Building and Construction Trades Council.
23 24 1,1f These plaintiffs cross-sppealed from the court's 25 denial of their summary judgment notions. We dismissed 26 the cross-appeal on the ground that it was not taken 27 from a final judgment. Pacific Legal Foundation v.
28 State Energy Resources Conserv. & Dev. Coaa'n, No.
29 (unpublished order).
79-3424 (9th Cir. Nov. 1, 1979) 30 31
~
12/
The invalidated provisions were Cal. Pub. Kas. Code 32
)
l 4 l
l W
il 25500, 25502, 25504, 2,5511, 25512, 25514, 25515, g
25517, 25519, 25520, 25523, 25532.
2
?
3 4
13/
The SDG&E board resolution, dated May 3,1978, read S
in relevant parts 6
WHERZAS, at its meeting on January 27, 1978, this Board resolved not to 7
terminate the Sundesert Project before May 1, 1978 in order to give the 8
legislature and governor time to exempt Sundesest from sections 25524.1 and 9
25524.2 of the California Public Resources Coder and 10 WHERZAS, the officers and this 11 Board have continuously monitored events occurring since January 27, 12 1978 and 13 WHERZAS, Sundesert cannot be timely certified by the California 14 Energy Resources Conservation and Development Commission without such an 15 exemption, which, while diligently sought by the Company, has not yet been IG l
obtained and does not appear to be readily obtainabler and 17 WHERZAS, in Decision No. 88758, 18 dated May 2, 1978, the California Public Utilities Commission advised the 19 Company that continued expenditures on Sundesert would, with certain 20 exceptions, be entirely at the risk of the Company's shareholders.
21 RESOLVED, that the officers of the 22 Company are directed to take all appropriate steps tot 23 1.
Immediately stop any further 24 Sundesert expenditures, other than those associated with the actions 23 desc'ribed below and those required by law.
14/
sDG&E intended to finance sundesert by issuing new
[
28 l
securities. Due to restrictions contained in exist!,r.g
. bonds, however, new securities could be issued only if SDG&E's earnings could be maintained at a certain level. To maintain such earnings, SDGEE requested two types of rate relief s (1) an increase in its authorized *
.., ~. _.
- *' ***"'" " **"I'Y' *"" (23
'h*
I"**"'I " * ***
1 1
costs of " construction work in progress" (CWIP) in its 2
3 rate base.
Affidavits submitted by the Energy Commission show 4
5 that the CPUC has never granted any utility a rate of 6
return on equity higher than 13.49% and has never 7
allowed the inclusion of CWIP in a utility's rate base.
8 SDG&E has itself estimated that it would need a 14.5%
9 rate of return together with the inclusion of CWIP in 10 order to finance Sundesert. Others estimated that the 11 necessary rate without the inclusion of CWIP sight be as 12 high as 214. In response to an SDG&E request for rate 13 relief, the CPUC stated that the inclusion of CWIP was 14 "cospletely foreign to (California's] historical 15 ratemaking policy" and would be opposed by the CPUC "in 16 the absence of exhaustive analyses of alternatives Cand] a showing of extraordinary need."
17 18 Resolution No. L-190 (CPUC July 6, 1977).
19 The CPUC reaffirmed this policy in its opinion of 20 May 2, 1978, finding that Sundesert was " infeasible 21 under the Commission's adopted rateaaking practices."
22 Investigation on the Commission's own Motion (San Diego 23 Gas & Electrie company). No. 88758, Interim op., OII No.
24 4 at 45 (CPUC May 2, 1978). The CPUC thus advised SDG&E 25
- that continued expenditures on the Sundesert nuclear 26 facility... can only be recaptured by the company i
27 (through inclusion in its rate basel if the Sundesert I
28 nuclear facility is ultimately operational."
Id. at 29
, 48.
The CPUC recommended that alternate means of 30 producing energy be considered.
31 32 15/
Affidavits were submitted by, inter alia. Richard I
l l
1.
l
i L. Maullin, chairman of the Energy Commission and its i
i
)
Presiding officer during consideration of the Sundesert 2
1 3
notice of intention: Robert Logan, the Energy Commission,
economist in charge of studying utilities' financing 4
capabilities; and Raymond J. Czahar, the CPUC financial 5
examiner assigned to review SDG&E's proposal for 6
The af fidavits described SDG&E's 7
financing Sundesert.
financial position and stated that in the affiants' 8
professional opinions, Sundese'rt could not be financed 9
The without a fundamental change in ratemaking policy.
10 affidavits also stated that in the affiants' opinions 11 12 such a policy change was unlikely.
The court below disregarded these affidavits on the 13 ground that they " state [d] only... declarants' 14 15 opinions.* Pacific Legal Foundation v.
State Energy
& Dev. Coma'n, 472 F. Supp. 191, 195 16 Resources conserv.
17 (S.D. Cal. 1979). Expert opinion testimony is admissible at trial, however Fed. R. Evid. 702, 703, 18 and affidavits containing such testimony must be
~
19
- 704, See considered in ruling on a summary judgment action.
20 21 Bieghier v. Kleepe, 633 F.2d 531, 533-34 (9th Cir. 1980).
22 23 16/
Cal. Pub. Re s. Code i 25524.25 directed the Energy 24 Commissien to notify the California legislature, no 25 later than January 16, 1978, whether the findings I
l 26 required by sections 25524.1 and 25524.2 could be made
(
27 at that time. The Energy Commission was then to reconsend whether to exempt any nuclear plants for which 28 notices of intention had been submitted prior to January 29 30 1, 1977. The Energy Commission recommended against A Sundesert exemption bill.
31 exempting Sundesert.
////
1.
?
s 3.3. 1015, was nevertheless passed by the California.
j g
2 l
senate on January 26, 1978. The fo'11owing day, the SDG&E board of directors resolved "to exert every 3
reasonable ef fort to obtain an unconditional statutory 4
exemption of Sundesert from the nuclear statutes" and 5
- not [to] terminate the Sundesert Project before May 1, 6
7 1978, thereby providing time for the legislature and the governor to statutorily exempt sundesert from the 8
9 nuclear statutes."
10 on April 13, 1978, the California Assembly Commit. tee on Resources, Land Use, and Energy voted 11 12 against s.3 1015. The record does not show whether 13 this committee vote ef fectively killed the bill, or 14 -
whether further proceedings were expected. the SDG&E board voted to terminate the sundesert project on May 3, 15 16 1978.
17 18 17/
Thornberry argues that causation and redress are 19 simply alternate ways of expressing the same ides.
In 20 Thornberry's view, no separate showing of redressability 21 is necessary if it can be shown that the challenged 22 statute caused his injury. We disagree. At least in 23 cases such as Thornberry's, where the claimed injury 24 results from the independent action of a third party not 25 before the court, see Davis v. United states Dep't of 26 Hous. & Urban Dev., 627 F.2d 942, 944-45 (9th Cir.
27 1980), both this court and the Supreme Court have consistently required plaintiffs to show 'that their 28 29 injuries would be redressable by the court's action.
i 30 E.g., Duke Power Co. v. Carolina Envir. Study Group.
31 Inc.,
438 U.S. 59, 75-77 (1978): Village of Arlinoton
'32 Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, l l
o e
,m_
264 (1977): Sison v. Eastern Ky. Welf are Rights Org.,
g 426 U.S. 26, 40-44 (1976): soating Indus. Ass'ns v.
2 Marshall. 601 F.2d 1376, 1380 (9th Cir. 1979); Bowker v.
3 4
Morton, 541 F.2d 1347, 1349-50 (9th Cir. 1976).
5 6
18/
We are somewhat doubtful that Thornberry's unsupported and conclusory affidavit would be sufficient 7
8 to establish, for purposes of his motion for aussary 9
judgment, that he lost his job because Sundesert was 10 cancelled. Under Fed. R. Civ. P. 56(e), af fidavits in 11 support of a motion for cummary judgment must be made on 12 personal knowledge, and must affirmatively show that the 13 af fiant is competent to testify to the satters set 14 forth. See Rossi v. Trans world Air Lines, Inc.,
15 507 F.2d 404, 406 (9th Cir. 1974). Thornberry's 16 affidavit states only that his " employment was 17 terminated as a result of the suspension of the 18 Sundesert project," and it is not clear from the record 19 that this statement is based on Thornberry's personal 20 knowledge, as rule 56(e) requires. The record is devoid 21 of af fidavits or other evidence from Thornberry's 22 superiors at SDG&E who might have personal knowledge of
~
23 the reasons for nis termination.
24 25 19,/
Although the Abbott Laboratories standard was 26 developed in the context of judicial review of agency 27 actions, it is equally applicable to the present 28 context, where a statute is challenged as 29 unconstitutional. See Rabbitt v. United Fars Wdrkers 30 y.g.1 Union, 442 U.S. 289, 300-01 & n.12 (1979);
31 Regional Rail Reorganization Act Cases. 419 U.S. 102, 32 143,47 (1974),
1
]
4 2
4 PG&E had 20/
Prior to the commencement of this lassait, for its attenpted to submit a notice of intentio.
Stanislaus project. The Energy Consission rejected the 5
6 Pacific l
California court ordered the notice accepted.
7 State Energy Resources Conserv. &
Gas & Elec. Co. v.
g 732-870 (Cal. Super. Ct., memorandum of Dev. Cons'n, No.
intended decision May 22, 1978r stipulated judgment 10 entered Aug. 15, 1978). PG&E did not resubmit the 11
- "I'* "I I""*"*I***
12 13 21/
Section 25528(b) provides that:
14 In the case of an application for 15 a nuclear facility, the area and Population density necessary to insure 16 the public's health and safety designated by the commission shall be 17 that as determined from time to time by the United States Nuclear Regulatory 18 Commission, if the commission finds that such datermination is sufficiently 19 definitive for valid land use planning requirements.
20 Our conclusion as to the validity of section 25503 22/
21 will necessarily af fect the validity of two other 22 sections as wella section 25504, requiring certain 23 information as to each of the sites, and section 25516, 24 requiring that at least two sites be found acceptable 25 unless the Energy Commission finds that only one 26 acceptable site is available.
27 28 23/
Reprocessing is a mechanical and chemical means of 29 Processing spent fuel so as to recover reusable uranius 30
- and plutonium. At the time section 25524.3 was enacted 31 into law, reprocessing was viewed ss the only available 32..
G
9 g
method of disposing of spent fuel. At present, however, concerns about nuclear proliferation and the expense of 2
I 3
reprocessing have resulted in spent fuels being stored 4
rather than reprocessed. See Nuclear Fuel Cycle 5
Committee, Status of Nuclear Fuel Reprocessing, Spent 6
Fuel Storage and High-Level Waste Disposal 8-9 (ERCDC 7
Draft Report Jan. 11, 1978).
8 9
24/
The court below did not abuse its discretion in 10 declining to abstain. Abstention under the doctrine of 11 Railroad Coma'n v. Pu11aan Co., 312 U.S. 496 (1941), is 12 inappropriate because the case before us does not 13 involve a doubtful issue of state law.
See Canton v.
14 Spokane School Dist. No. 81, 498 F.2d 840, 845 (9th Cir.
15 1974). Section 25524.2 unambiguously provides that no 16 nuclear plants are to be certified until certain 17 findings have been made, and it is undisputed that the 18 findings have not been made. Abstention under the 19 doctrine of Burford v. Sun oil Co., 319 U.S. 315 (1943),
20 is also inappropriate. California has not concentrated 21 challenges to the Warren-Alquist Act in any specialized 22 state court, and the federal issues involved in this 23 case are easily separable from any state issues. See 24 IBEW Local No. 1245 v. Public Serv. Comm'n, 614 F.2d 25 206, 211 (9th Cir. 1980).
l l
26 t
27 25/
The AIC was dismantled by section 104 of the Energy 28 Reorganization Act of 1974, 42 U.S.C. $ 5814, and its 29 promotional functions were transferred to the Energy 30 I
Research and Development Administration, M.
The AEC's 31 l
regulatory functions were transferred to the NRC.
I d,.
32 5 5841. The effects of the Energy Reorganization Act,
l l
l l
l
[
are further discussed at p. 36 infra.
g 2
3 21/
Section 271 was amended in 1965 to provide that states were not authorized to regulate activities of ths 4
AEC itself. The amendment was intended to overturn the 5
6 holding of Maun v. United States. 347 F.2d 970 (9th Cir.
1965), which had required an AEC-owned research facility 7
8 to comply with municipal soning ordinaaces. The 9
committee report accompanying the 1965 amendment makes 10 clear that the states' authority over non-AEC projects 11 was not affected.
5.R. Rep. No. 567, 89th Cong., 1st 12 Sess., reprinted in [19653 U.S. Code Cong. & Ad. News 13 2775.
14 15 27/
The Joint Committee on Atomic Energy at one point 16 considered a more explicit version of section 274(k),
17 which would have prohibited the states from regulating 18 "concerning the control of radiation hazards," but would 19 have permitted the states to " adopt registration 20 requirements for (nuclear] materials" and " inspect the 21 use of such materikis within the State."
22
- 5. 2568/8.R. 8755, 86th Cong., let Sess., reprinted in 23 Federal-State Relationships in the Atomic Enerey Field 24 Hearings Before the Joint Committee on Atomic Energy, 25 86th Cong., let Sess. 486, 488 (1959) [ hereinafter cited 26 as Federal-State 1elationships]. The AEC asked that 27 these provisions be deleted, and that section 274(k) be 28 reduced to its present fors. See Federal-State 29 Relationships, supra, at 499 (statement of John A.
30 McCone, Chairman, AEC) Letter from A.R. Luedecke, 31 General Manager, AEC, to Senator Clinton P. Anderson, 32 Chairman, Joint Committee on Atomic Energy, reprinted in.
p
Federal-State Relationships, supra, at 500. The AEC's g
a general manager explained that control c or radiation o
3 hazards was still preempted under its version of the 4
bill, but that the revision "le[ft3 room for the courts 5
to determine the applicability of particular State laws 6
and regulations dealing with matters on the fringe of 7
the [ bill's] preempted area."
Id.
See Federal-State 8
Relationships, supra, at 493 (resarks of Robert 9
I4wenstein) (revision leaves courts a little more 10
" latitude of interpretation" and avoids the " rigidity of 11 statutory construction").
12 13 g/
Enactments since the passage of the Atoalc Energy 14 Act have given the states power to protect against 15 radiation hazards in certain circumstances. See clean 16 Air Act Amendments of 1977, { 122, 42 U.S.C. I 7422 17 (supp. III 1979) (radioactive emissions): NRC 18 Authorization Act for Fiscal Year 1980 Pub. L. No.
19 96-295, i 108(e) & (f), 94 Stat. 783 (1980) (plant 20 sitir.;). These provisions are discussed at pp. 36-37 21 infra.
22 23 g/
State regulations which directly conflict with j
24 regulations of the NRC would, of course, be preempted 1
25 even if they were enacted for purposes other than 26 protection against radiation hazards. If the NRC 27 required a nuclear plant to be constructed in a certain 28 way for safety reasons, for example, a state could not 29
, require the plant to be constructed some other way for 30 environmental reasons. See New Jersey Dep't of Envir.
31 Protection v. Jersey Central Power & Light Co., 69 N.J.
32 102, 351 A.2d 337 (1976).
I l
1 l l
l b
1 1
0/
More recently, two courts have held that the Atomic 2
Energy Act of 1954 does authorize the NRC to consider 3
environmental issues in its licensing proceedings.
4 Detroit Edison Co. v. United States Nuclear Requiatory 5
6 Comm'n, 630 F.2d 450, 453 (6th Cir. 1980): Public Serv.
7 Co. v. United States Nuclear Regulatory Comm'n, 582 F.2d 8
77, 84-85 (1st Cir.), cert denied, 439 U.S. 1046 9
(1978). Both courts recognized that the states had 10 concurrent regulatory authority under sections 271 and 11 274(k) of the 1954 Act.
Detroit Edison Co., 630 F.2d at 12 453: Public Serv. Co., 582 F.2d at 85.
13 14 31/
The Minnesota statute involved in Northern States 15 was intended to protect against radiation hazards, and 16 the court held that it was preempted. The court also 17 held that the regulation at issue interfered with a 18 congressional goal of promoting nuclear power. This 19 aspect of the Northern States decision is discussed in 20 note 39 infra.
21 22 32/
In United States v. City of New York, 463 F. Supp.
23 604 (S.D.N.Y. 1978), the court considered New York 24 City's attempt to prohibit Columbia University from 25 operating a research reactor within the city limits.
26 The City's objection was based on the danger that an 27 accidental release of radiation might occur. The court held that such " radiological regulation o'f the operation 28 29 of nuclear reactors" was preempted under section 274.
30 463 F. Supp. at 612.
31 The court in Northern Cal. Ass'n to Preserve Bodeoa 32 Head and Marbor. Inc. v. Public Util. Comm'n. 61 Cal.2d 1
g 126, 390 P.2d 200, 37 Cal. Rytr. 432 (1964), also considered the question of whether states could restrict 2
3 the location of a nuclear reactor. The court held that 4
the state could keep a reactor from being built in an 5
earthquake zone, since " safety considerations in 6
addition to radiation hazards" were involved. 61 Cal.2d 7
at 390 P.2d at 204, 37 Cal. Rptr. at 8
Marshall v. Consumers Power Co., 65 Mich. App. 237, 9
237 N.W.2d 266 ('1975), involved a claim that a nuclear 10 plant created a common-law nuisance. Reasoning that 11 section 274 " preempts state action concerning 12 radiological, but not nonradiological matters," 65 Mich.
237 N.W.2d at 275, the court held that it 13 App. at 14 could not consider the plaintiff's allegations about the 15 effectiveness of the plant's emergency core cooling 16 system, but that it could consider allegatic.'s 17 concerning steam, fog, and ice created by the plant's 18 cooling pond.
19 other courts have taken similar positions. See 20 Commonwealth Edison Co. v. Pollution Control Bd., 5 Ill.
21 App. 3d 800, 284 N.E.2d 342 (1972) (state statute 22 regulating level of radioactive discharge is preempted)r 23 State ex rel. Utility Consumers Council v. Public Serv.
24 Comm'n. 562 S.W.2d 688 (Mo. App.), cert. denied.
25 439 U.S. 866 (1978) (state power to grant or deny 26 certificate of public convenience and necessity is not 27 preempted): ef. New Jersey Dep't of Envir. Protection v.
28 Jersey Central Power & Light Co., 69 N.J. 102, 351 A.2d 29 337 (1976) (state regulation conflicting with AEC 30 regulation is preempted, but not all state regulation of 31 nuclear plants for all purposes).
32 53-
,1
] 31/
The package originally contained four bills.
2 f
A.B. 2823, dealing with liability for nuclear accidents, 3
was defeated by the Ways and Hea,ns Committee of the 4
California Assembly. The remaining bills were enacted 5
as sections 25$24.1, 25524.2, and 25524.3 of the 6
California Public Resources Code. California Assembly 7
Committee on Resources, Land Use, and Energy, 8
Reassessment of Nuclear Energy in California: A Policy 9
Analysis of Proposition 15 and Its Alternatives 154 10 (1976) [ hereinafter cited as Reassessment]; 1976 Cal.
31 stats. chs. 194, 196, 195.
12 13 34/
We express no opinion on whether Proposition 15 or 14 similar laws being considered by other states would be 15 preempted by the Atomic Energy Act.
- Compare, e.g.,
16 Murphy & La Pierre, Nuclear " Moratorium" Legislation in 17 the States and the Supremacy Clauses A Case of Express 18 Preemption, 76 Colum. L. Rev. 392 (1976), with Barton &
19 Heyers, The Legal and Political Ef fects of the 20 California Nuclear Initiative, in The California Nuclear 21 Initiative 1, 23-26 (1976), and Wiggins, Federalism 22 Balancing and the Burger Court California's Noelear 23 Law as a Preemption Case Study, 13 U.C. Davis L. Rev. 1.
24 60-86 (1979-80).
25 26 35/
Section 25524.2(b) does permit the California 27 legislature to "disaffira" an Energy Commission finding
~
28 that a federally approved method of waste disposal 29 exists. It is not clear whether this provision would 30 permit California to disapprove a method of waste 31 disposal that the NRC had approved. SJeh a Possibility 32 need not concern us here, however. In applying t
l.
r L
(
preemption analysis, we " distinguish those situations in
,1 1
2 which the concurrent exercise of a power by the Federal 3
Government and the States or by the States alone may 4
possibly lead to conflicts and those situations where 5
conflicts will necessarily arise." Goldstein v.'
6 California, 412 U.S. 546, 554 (1973) (emphasis in 7
original). There is no necessary conflict between 8
section 25524.2 and federal law, and it will be time to 8
consider any futute conflicts if'and when they arise.
10 Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 237 11 (1947),
12 13 g/
As our previous discussion of sections 271 and I4 274(k) demonstrates, sy pp. 24-28 supra, Congress 15 recognized that the statas would regulate nuclear plants 16 in certain respects.
17 18 E/
ERDA's functions were later transferred to the 19 Department of Energy. 42 U.S.C. I 7151(a) (supp. III 20 1979),
21 22
/
The clean Air Act Amendments of 1977 were intended 23 to overtorn the holding of Northern States Power Co. v.
24 Minnesota, 447 F.2d 1143 (8th Cir. 1971), aff'd mem.,
25 405 U.S. 1035 (1972), in the specific context of 26 regulation of radioactive air pollutants. See H. R. Rep.
27 No.95-294, 95th Cong., 1st Sess. 43 n.8, reprinted in 28 (19773 U.S. Code Cong. & Ad. News 1077, 1121 n. 8: H.R.
, Conf. Itap. No.95-564, 95th Cong., let Sess. 143, 0
re rinted in (19773 U.S. Code Cong. & Ad. News 1502, 1523-24.
32 9
e
g/
Northern States Power Co. v. Minnesota, 447 F.2d
- g 1143 (8th Cir.1971), af f'd men., 405 U.S. 1035 (1972).
1 2
I 3
is not to the contrary. The Northern States court had 4
before it a statute which regulated radioactive hazards.,
5
.an area that was at the time clearly preempted by the 6
Atomic Energy Act.
The court thus had no occasion to 7
consider state regulations for other purposes. The 8
Court stated in dicta that if states were allowed to e
regulate, "they might concetvably be so overprotective 10 in the area of health and safety as to unnecessarily 11 stultify the industrial development and use of atomic I,d,. at 1153-54. Northern states does not, 12 energy."
d 13 however, hold that states may never take actions which use of atomic energy." The Suprese 14
- stultify the.
15 Court has since suggested that the result in Northern 16 States would have been different if the state had besa 17 regulating thermal pollution rather than radioactive 18 emissions. Train v. Colorado Public Interest Resa.rch 19 Group. Inc., 426 U.S. 1, 16-17 & n. 14 (1976)r og 20 Marshall v. Consumers Fower Co., 65 Mich. App. 237, _,
21 237 N.W.2d 266, 277-78 (1975).
22 First Iowa Hydro-Elec. Coop. v.
Federal Power 23 Comm'n. 328 U.S. 152 (1946), is also not to the 24 contrary. In First Iowa, the Supreme Court held that a 25 utility could not be required to obtain'a state permit 26 before building a dan to be licensed by the Federal 27 Power Commission. The Court found the state permit 28 requirement impermissible because the Federal Water 29 Power Act specifically gave the FPC responsibility for l
30
- a comprehensive plan for improving or developing a 31 waterway or waterways for.
. beneficial public 32 uses."
16 U.S.C. I 803(a) First Iowa, 328 U.S. at 160
?
- n. 5, 164 & n. 9.
As we have discussed in tha tcut, the g
i Atomic Energy Act gives the NRC no such comprehensive 2
P anning responsibility. The fact that a nuclear power l
3 4
plant has met federal standards and obtained a federal 5
license does not of itself prevent the state ferd 6
imposing additional standards. Ray v. Atlantic 7
Richfield Co., 435 U.S. 151, 164, 168-69 (1978): Huron 8
Portland Cement Co. v. City of Det ott. 362 U.S. 440, 9
447 (1960).
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 4
1 l
l i
Pacif t - Leoal Foundation v.
State Energy Resources 1
conservat{on s Development commission - Nos. 79-3365, 2
79-3382, 80-4265, 80-4273 3
4 5
FERGUSON, Circuit Judge, concurring:
6 while I concur in the disposition reached in regard 7
to the merits of the plaintiffs' preemption claims, I write a
separately because Congress has not granted a private cause 3
of action to the plaintiffs.
10 The majorit.i opinion correctly analyzes the standing 11 of each of the pisintiffs to prosecute these lawsuits in 12 terms of the familiar indicia of particularized injury, 13 causation, and the court's capacity to provide redress. It 14 does not, however, address the related question of whether 15 Congress, in enacting the Atomic Energy Act, intended that 16 private entities such as these plaintifts be empowered to 17 bring lawsuits seeking to impose on the states their own 18 interpretations of the Act.
It is my opinion that none of 19 the plaintiffs have any enforcement rights pertaining to the,
20 provisions of the Atomic Energy Act.1 21 The plaintiffs in the two cases involved in these 22 appeals seek *a judicial determination that various California 23 statutes are unconstitutional, as violations ef the Supremacy 24 Clause. The Supremacy Clause itself, of course, grants no 25 substantive rights, and a litigant who claims its protection 26 aust be able to point to another source for the substantive 27 right--the right to relief--he asserts in his cause of 28 action. These principles are highlighted by recent obser-29 vati,ons of the Suprese Court in Chapman v. Houston Welfare 30 Rights organization, 441 U.S. 600, 612-15 (1979). The 3,1 question before the Court in Chapman was the reach of the 32 jurisdictional grant in 28 U.S.C. 51343(3), which covers FILED l
SCT 7 5 61 4
civil suits for the redress of deprivations of rights, privi-3 leges, or' immunities secured by the Consititution or by a 2
federal law providing for equal rights. The Court observed 3
that 4
5 the first propositional phrase (" secured by the Constitution") can be fairly read to 6
describe rights secured by the Supremacy Clause. For even though that Clause is not a g
source of anf federal rights, it does " secure" federal rights whenever they come into con-3 flict with state law.
In that sense all fed-egal rights, whether created by treaty, by g
statute, or by regulation, are " secured" by the Supremacy Clause.
10 at 613. The Court concluded, however, that 11 lds 12 (i]n order to give meaning to the entire stat-ute as written by Congress, we must conclude 13 that an allegation of incompatibility between federal and state statutes and regulations 14 does not, in itself, give rise to a claim
" secured by the Constitution" within the mean-15 ing of 5 1343(3).
b at 615.
16 17 The conclusion is thus compelled that the right to 18 relief claimed by the plaintiffs here, although " secured" by 19 the, Supremacy Clause, must originate in the Atomic Energy Act, 20 itself. We must there' fore look to that Act, and to the guid-21 ing principles of statutory construction, to discern whether 22 Congr=41 intended to grant, explicitly or implicitly, any 23 such right to relief to these or similar,1y placed plain-24 tiffs.2 25 When a plaintiff seeks to challenge federal agency 28 action, the court must " canvass relevant statutory materi-27 als," in order to determine "whether Congress meant to deny 28 or to allow judicial review of the agency action at the 29 instance of the plaintiff." Barlow v. Collins, 397 U.S. 159, 169 (197,0) (Brennan, J., concurring in the resu'lt and dis-30 3,1 senting). Similarly, when a plaintiff seeks to complain of 32 state action, including state legislative action, on the e
~
strength of assertedly preemptive federal statutes, the court g
must consider wisether Congress intended that that plaintiff 2
be authorized to seek relief through judicial action.
3 Rossoo v. Wyman, 397 U.S. 397 (1970), involved the 4
question of whether New York welfare legislation was incon-5 6
sistent with provisions of the Social Security Act. Justice 7
Black, dissenting, argued that the District Court steuld not 8
have entertained the lawsuit, because HEW had not had the opportunity to exercise its own judgment on the un'derlying 9
10 question of compatibility of the state and federal statutes:
11 I think it will be impossible for BEW to ful-fill its function under the Social Security 12 Act if its proceedings can be disrupted and its authority undercut by courts which rush to 13' make precisely the same determination that the agency le directed by the Act to make. And in 14 instances when HEW is confronted with a par-ticularly sensitive question, the agency might 15 be delighted to be able to pass on to the courts its statutory responsibility to decide 16 the question. In the long run, then, judicial pre-emption of the agency's rightful responsi-17 bility can only lead to the collapse of the enforcement scheme envisioned by Congress, and 18 I fear that this case and others have carried such a process well along its way.
19 20 Id. at 434-35.
In the statutory context of Rosado, the 21 Supreme Court considered and rejected the applicability of
~
22 the. reasoning offered by Justice Black and quoted above. The 23 present lawsuits arise in a different statutory and regula-24 tory context, in which I believe that reasoning parallel to 25 Justice Black's should be applied.3 26-As a starting point, we may observe that nowhere in 27 the Atomic Energy Act has Congress explicitly authorized 28 lawsuits such as the ones before us.
At the same time, the 29 grant of powers in 42 U.S.C. 3 2201(1) (1976) is clearly 30 broad enough to enable the Nuclear Regulatory Commission to 3J pass judgment cn such questions as those prezented here:
32
"[T]he Commission is authorized to... (1) prescribe such
regulations or orders as it may deem necessary... (3) to 1
2 g vern any activity authorized pursuant'to this chapter."
Even though the Atomic Energy Act does not explic-3 4
itly authorize private actions to enforce its provisions in 5
the face of conflicting state statutes, and even though it 6
does empcwer the Nuclear R_egulatory Commission to deal appro-7 priately, within its discretion, with such conflicts, it g
might be thought that there is nevertheless an implied pri-g vate right of action *under the Act.
10 In Cort v. Ash, 422 U.S. 56 (1975), the Supreme 11 Court refused to consider whether the defendant had violated i
12 the federal statute sued under, because it found that Con-13 gress had not intended to provide any private remedy for its 14 violation, either explicitly or implicitly. The principles 15 enunciated in Cort were quite recently reitersted in Califor-16 nia v. Sierra Club, U.S.
, 49 U.S.L.W. 4441 17 (April 28,1981). That case, which makes it clear that the 18 critical question is not whether a party would benefit from a 19 particular statute,'but whether tongress intended to confer 20 an enforcement right on that party, is dispositive here.
21 There is nothing on the face of the statute or in 22 its legislative history which suggests that Congress intended 23 to confer rights upon the plaintiffs in these ections.
24 The Atomic Energy Act, like the Rivers and Harbors 25 Appropriations Act of 1899, as interpreted in California v.
26 Sierra Club, supra 27 1.
Does not carry any implication cf en intention 28 to confer rights en a particular class of persons.
29 2.*
Was designed to benefit the public at large.
30 3.
Was designed to enable the Nuclear Regulatory 3,1 Commission to carry out the terms, duties, and responsibili-32 ties of the Act.
. l l
l
. = _
4.
Demonstrates that Congress was not concerned 1
with priva'te rights but with the federal
- governa' ant's ability 2
to respond to atomic energy problems.
3 I submit that Congress has decided that only the 4
Nuclear Reguletory Commission, ar.d not the plaintiffs, may 5
6 challenge California statutes as beir.g preempted by the Act.
7 Of course, a party which is aggrieved by a final sction of g
the Nuclear Regulatory Commission may have a cause of action g
for judicial review.o'f that action under the Administrative 10 Procedures Act.
5 U.S.C. 5 702 (1976). But that is not the 11 Posture in which these cases arise.
12 Finally, Duke Power Co. v. Carolina Environmental 13' study Group..Inc., 438 U.S. 59 (1978), 16 not to the con-14 trary. The issue in Duke Power was whether private parties 15 had standing to challenge the constitutionality of a section 16 of the Atomic Energy Act.
Here, the plaintiffs are claiming 17 enforcement rights under the Act. The issues are quite 18 different, and the tests which govern the disposition at 19 those irsues are correspondingly different. Standing to 20 challenge the constitutionality of a statute does not in 21 itself cor.fer snforcement rights under that statute.
22 Congress has recognized that the future of this 23 nation depends on our collective ability to contain safely 24 nuclear energy. Because the public in'terest is paramount, a
25 Nuclear Regulatory Commission has been established to oversee 26 the statutory scheme. That Commission's oversight is clearly 27 intended to be comprehensive, and the Congressional goal of 18 bringing to the field of nuclear energy a single, expert, 29 public agency to interpret and carry out the provisions of 30 the Atomic Energy Act is frustrated when individual courts, 3) at the instance of private entities, pass judgment on the 32 scope of that Act.
The regulatory plan which Congress so e
9
?
I.
.t l
l carefully devised cannot be upset by the judicial action p
1.
sought in" cases such as these.
2 3
4 5
6 7
l 9
10 11 12 13.
14 15 16 17 18 19 20 21 22 23 24 25 26 27 29
" 31 32 e
g.
e
.g.
FOOTNOTES 3
- 2 1.
At one time, the lack of such an enforcement right 3
was considered to te a har to Article III standing.
- See, 4
e.g., Alabama Power Co. v. Ickes, 302 U.s. 464, 479 5
(1938). That restrictive view of standing has now been 6
discarded.
7 The " legal interest" test goes to the petits.
8 The question cf standing is different. It concerns, apart from the " case" or 'contro-
.g versy" test, the question whether the interest sought to be protected by the complainant is go arguably within the sone of interests to be Protected or regulated ty the statute or con-11 stituttenal guarantse in question.
12 Ass'n of. Data Processing Service organlaations v. Camp, 33 397 U.S. 150, 153-(1370). See also Sarlow v. Collins, 14
~
397 U.S. 159, 168 (1970) (Brennan, J., concurring in the 15 16 result and dissenting).
17 18 2.
My research has disclosed no case which stands,as 19 direct precedent for the position taken in the text.
20 Indeed, in a number of more or less analogous contexts, the Supreme Court has reached the merits of preemption 21 claims brought by private litigants without consideration 22 23 of the questions I raise here. gee, e.o., Jones v. Rath 24 Packing Co., 430 U.S. 519 (1977) City of Burbank v.
25 Lockheed Air Terminal, 411 U.S. 524 (1973): Askew v.
American waterways operators, Inc._, 411 U.S. 325 (1973).
26 27
.In such cases, essentially, the courts are allowing the 28 private l'itigants to act in the capacity of private 29 attorneys general, and in many, perhaps most, contexts, 30 this practice will serve the public interest. Whether 3) the same can be said in the area of nuclear power regula-32 tion is a question which should not be disposed of merely
_ e
?
L
t by analogy to other areas of federal regulation. Rather, g
a sear'ching and independent analysis is called for.
2 3
3.
Northern States Power Cornpany v. State of Minnesota, 4
447 F.2d 1143 (Sth Cir.1971), also involved the issue of 5
federal preemption, by.the Atomic Energy Act, of state 6
y regulation of nuclear power plants. The opinion impli-edly holds that Congress has empowered private plaintiffs 8
3 to bring suits for declaratory reilef in this area. It 10 is not persuasive on the point, however, since it does not discuss, or even sention, the need for Congressional Il 12 authorizaticn of such suits.
13
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24 25 26 27 28 29 30 i'
31 g.
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