ML20050C489
| ML20050C489 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 01/26/1982 |
| From: | Bachelder J, Holmes W CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), WARNER, NORCROSS & JUDD |
| To: | U.S. DISTRICT COURT, WESTERN DISTRICT OF MICHIGAN |
| Shared Package | |
| ML20050C484 | List: |
| References | |
| 58-73-CA-7, NUDOCS 8204080555 | |
| Download: ML20050C489 (11) | |
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A.S UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION a
WEST MICHIGAN ENVIRONMENTAL
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ACTION COUNCIL, INC.,
File No. 58-73 CA 7 Plaintiff, Judge Wendell A. Miles 4
vs.
BRIEF IN SUPPORT OF NUCLEAR REGULATORY COMMISSION, MOTION TO DISMISS I
Defendants.
l FACTUAL BACKGROUND Consumers Power Company (" Consumers") is the holder q
i of an Operating License issued by the Nuclear Regulatory Commis-sion ("NCR" or " Commission") authorizing it to operate the Big j
Rock Point Nuclear Plant near Charlevoix, Michigan. This license, as amended three times through 1969, permits Consumers 'to use up to 50 kilograms of recycled plutonium in mixed oxide fuel rods d
for the plant's reactor.
v In December, 1972, the Atomic Energy Commission (AEC",
the predecessor of the NRC) issued a new amendment, designated 1
Amendment No.
4, which would have allowed the use of an additional 100 kilograms of plutonium in mixed oxide fuel at Big Rock.
Before Consumers could exercise its authority under this amendment, plaintiff filed the present action in March, 1973, seeking both declaratory and injunctive relief.
Plaintiff asked this Court to i
declare the provisions of the National Environmental Policy Act ("NEPA") applicable to any expanded use of plutonium by Con-sumers, so as to require the prior preparation and publication of an environmental impact statement.
Plairciff also asked the Court 1
- to find that the Atomic Energy Act and the rules and regulations promulgated thereunder required the holding of public hearings 8204000555 820402 PDR ADOCK 05000155 O
PDR n
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before plutonium levels could be increased at Big Rock.
In
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l addition, plaintiff prayed that Consumers be enjoined from re-fueling Big Rock with more than 50 kilograms of plutonium until the alleged requirements of NEPA and the Atomic Energy Act could be satisfied.
Shortly after suit was commenced, the Court denied plaintif f's request for a preliminary injunction, finding no threat of immediate and irreparable harm. Consumers represented to the Court in the course of the injunction hearings, that it would take no action under Amendment No. 4 to increase the plutonium lead at Big Rock without ample prior notice to the Court and the plaintiff.
Morever, on April 10, 1973, the AEC agreed to hold public hearings on Amendment No. 4 at the request of interested parties.
" Notice of I s suance of Facility License Amendment and Opportunity for Hearing," 38 Fed. Reg. 9104 (1973).
Plaintiff promptly requested such hearings and was granted leave to idtervene in them. This Court subsequently ruled, on June 19, 1974, that the instant litigation would be held in abeyance until these administrative 4
hearings could be completed.
In the meantime, the AEC had undertaken preparation of -
3 a Generic Environmental Statement on Mixed Oxide Fuel ("GESMO")
- if Jl to evaluate the health, safety and environmental impacts of tne wide scale use of mixed oxide fuel in general.
Although in its
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June 19, 1974 opinion, this Court held that GESMO would have to be considered in the course of the Big Rock lic en s in 9 proceedings, it conceded in a clarifying opinion dated October 3, 1974 that the public hearings could proceed, pending GESMO's completion.
On August 11, 1975, the NRC issued a Memorandum and Order (attached as Exhibit A) in the administrative proceedings holding that:
(a) NEPA's requirements for an environmental impact I
statement do apply to the increased use of mixed oxide fuel at 1
Big Rock, as authorized by Amendment No. 4; and that (b) the 1
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Provisions of Amendment No. 4 authorizing higher plutonium levels may not be used until such NEPA requirements are met and a decision reached in public licensing hearings.
The Commission then sus-pended the administrative proceedings, pending preparation by j
Consumers of an environmental impact statement.
In the six and one-half years since the NRC's order was issued, Consumers has made no effort to prepare the requisite environmental impact statement or to perfect Amendment No. 4 in a
any other way..Moreover, the NRC terminated the GESMO proceedings in 1977 without issuing a final statement (CLI-77-33, 6 NRC 861)
I and, at the same time, terminated all pending licensing proceedings for facilities to reprocess irradiated fuel.
At present, there is no readily available source of i
mixed oxide fuel in the United States.
And, as Consumers has exhausted its existing stockpile of reprocessed plutonium, it intends to remove all remaining mixed oxide fuel from the Big i
Rock reactor in February, 1982. The company presently has no plans to refuel Big Rock with mixed oxide fuel in any quantity, 4
much less in amounts exceeding the 50 kilograms authorized by its i4 existing license.
See affidavit of i
PfR attached as Exhibit B.
9m ARGUMENTS
..j I.
THE CASE PENDING BEFORE THE COURT IS NOT PRESENTLY JUSTI-CIABLE FOR THE REASON THAT ITS CONTROLLING ISSUES HAVE BECOME MOOT.
i By express terms of the Constitution (Art. III, S 2),
the exercise of federal judicial power is limited to " cases" and 219 US 3'6, 31 S Ct
" controversies". Muskrat v United States, 4
250, 55 led 246 (1911). For a case or controversy to exist within the meaning of the constitutional provision, there must be an actual dispute over existing rights, not merely a disagree-ment over rights which may arise in the future.
See Tilley Lamp i
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h th Co. v Thacker, 454 F2d 805 (5th Cir 1972); Minneapolis & St.
L.
R.
T Co. v Pacific Camble Robinson Co., 181 F2d 812 (8th Cir 1950).
Moreover, the rule in federal cases is that an actual controversy must be extant at all stages of the court's involvement, not merely at the time the complaint is filed.
Preiser v Newkirk, 422 US 395, 95 S Ct 2330, 45 led 2d 272 (1975).
The fact that a controversy existed at the time the action was commenced, will not warrant its continuation if subsequent events put an end to the controversy.
Mailer v Zolotow, 380 F Supp 894 (SD NY 1974).
Chief Justice Hughes succintly defined this concept of justiciability when he stated:
"A justiciable controversy is... distinguished from a difference or dispute of hypothetical q
character; from one that is academic or moot.
The controversy must be definite and concrete, touching the legal relati ns of parties having i
adverse legal interests.
It must be a real j
and substantial controversy admitting of speci-fic relief through a decree of conclusive character, as distinguished frSm an opinion i
advising what the law would be upon a hypo-thetical state of facts."
Aetna Life Insurance Co. v Haworth, 300 US 229, 240-41, 57 S Ct A
461, 464, 81 led 617 (1937).
- d Although a declaratory judgment action dif fers from 3
74 M
other types of proceedings in that an actual wrong need not have 8
d been committed prior to the commencement of suit, the requirement in such actions for a justiciable case or controversy is no less strict. Alabama State Federation of Labor v McAdory, 325 US 450, 65 S Ct 1384, 89 led 1725 (1945); Altvater v Freeman, 319 US 359, 63 S Ct 1115, 87 led 1450 (1943). The Declaratory Judgment Act, by its own terms, applies only to " case (s) of actual centroversy."
28 USC 5 2201 (1959). Accordingly it has long been recognized that, even in declaratory judgment actions, the federal courts are without power to give advisory opinions and must avoid deciding abstract, hypothetical or contingent questions.
Alabama State
. Federation of Labor v McAdorg, supra at 325 US 461.
It is quite clear that declaratory judgment actions are not to be used as a means of securing a judicial determination of moot questions.
6 A Moore's Federal Practice 1 57.13 (2d ed.
1978). A case becomes moot, and therefore no longer justiciable, when the controlling issues are resolved or when by virtue of i
i altered circumstances or changes in a party's position, their resolution is rendered either unnecessary or impossible.
This is l
the appropriate result where a. defendant-voluntarily ceases the conduct of which plaintiff complains and subsequent events make t
it clear that such conduct cannot reasonably be expected to recur.
United States v Concentrated Phosphate Export Assn., 393 US 199, 89 S Ct 361, 21 led 344 (1968); see also, United States v W.
T.
Grant Co.,
345 US 629, 73 S Ct 894, 97 led 1303 (1953).
I When the instant acticn was commenced in 1973, plaintiff sought declaratory and injunctive relief to require defendants to do two things before implementing Amendment No. 4:
(a) prepare and circulate an environmental im;'act statement meeting NEPA standards; and
-1 (b) hold public licensing hearings to consider j
safety implications of the proposed action.
In the years since, the NRC, itself, has taken action to ensure
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that these two requirements will be imposed and satisfied prior I
to any increase in plutonium levels at Big Rock.
Initially, the 4
Commission agreed to hold de novo public hearings on Amendment No. 4 4
and granted plaintiff full right to participate as an intervening party.
Even more significantly, however, the NRC, by formal Order of August 11, 1975, ruled that the provisions of Amendment No. 4 authorizing higher plutonium levels cannot be used until i
an environmental impact stater; 7t meeting NEPA's requirements H
has been prepared and until the administrative hearings before the Commission's Licensing Board have been completed and a de-j cision rendered. See Exhibit A.
In addition, this Court mandated i
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that GESMO be finalized and considered before the licensing hear-ings are concluded. Opinion, June 19, 1954.
These actions of the Commission and the Court have effectively mooted the instant action by granting plaintiff all the substantive relief it has requested.
There no longer remains the kind of "real and substantial controversy" over presently existing rights necessary to make the case justiciable. Aetna Life Insurance Co. v Haworth, supra; see Altvater v Freeman, 4
supra. Accordingly, the Court has lost its jurisdiction to con-i sider the case further.
See Preiser v Newkirk, supra; Mailer v Zolotow, supra.
Beyond the official action taken since 1973, is the I
fact that circumstances have so changed in the intervening years that there is no longer any substantial likelihood that Amendment No. 4 will ever be perfected. Following the NRC Order of that 1
year, Consumers voluntarily abandoned all efforts aimed at ex-i panding the use of mixed oxide fuels at Big Rock.
See Exhibit B.
a 4
It made no effort to prepare an environmental impact statement.
..j Instead, it has exhausted its entire stockpile of mixed oxide M
3 fue'is and will suspend their use at Big Rock entirely as of February, 1982.
And, because domestic sources of reprocessed w
plutonium for commercial use are presently nonexistent and re-A d
processing facilities are not being licensed, the use of mixed oxide fuels at Big Rock cannot " reasonably be expected to recur" in t'he foreseeable future. See United States v Concentrated Phosphate Export Assn., supra.
Moreover, the NRC's termination of the GESMO proceedings without the final statement required by this Court makes any perfection of Amendment No. 4 a distant prospect, at best.
Taken together, the of ficial actions and the changed circum!tances have " cut the heart out" of this case.
All basic 1
issues have either been resolved or their resolution rendered i
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f OV h,
unnecessary.
What remains, if anything, are abstract and hypo-
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thetical questions which must be recognized as nonjusticiable and, therefore, outside the scope of this Court's jurisdiction.
II.
THE CASE FENDING BEFORE THE COURT IS NOT PRESENTLY JUSTI-CIABLE FOR THE REASON THAT THE ISSUES PRESENTED ARE NOT RIPE FOR JUDICIAL RESOLUTION.
i Assuming, arguendo, that the present case has not be-come entirely moot, any disputes remaining among the parties are 1
certainly not r_ipe for judicial determination.
Basically, the test for ripeness is whether the f acts alleged, under all the q
circumstances, demonstrate a " substantial controversy of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v Pacific Coal & Oil Co.,
312 US 270, 273, 61 S Ct 510, 85 led 826 (1941); accord, Lake Carriers' Assn. v MacMullan, 406 US 498, 92 S Ct 1749, 32 led u
i 2d 257 (1972). The requisite immediacy dnd reality are not l
present in cases where the issues to be litigated are " hypothetical, i
conjectural, conditional or based upon the possibility of a factual 4
situation that may never develop."
Brown & Root, Inc. v Big Rock u
l'y Corporation, 383 F2d 662, 665 (5th Cir 1967).
Numerous cases have been dismissed for want of ripeness N
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where there was no real assurance that the conduct complained of or sought to be enjoined would ever occur.
A good example is
. aq Public Service Commission of Utah v Wycoff, 344 US 237, 73 S Ct 236, 97 led 291 (1952), in which the Supreme Court upheld the dismissal of a declaratory judgment action aimed at preventing a state commission's possible assumption of regulatory jurisdic-tion over the plaintiff. The Court found no justiciable issue where there had been no move by the state agency to assert j urisdiction.
See also, Swedlow, Inc. v Rohm & Haas Co.,
455 F2d 884 (9th Cir 1972) (dismissal of declaratory judgment action
. affirmed where plaintiff alleged that plant being constructed by
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defendant would.., i"*t" upon its patents, f and when the plant were placed in..<:,. i,, 3, o thr: ut.."'
that a controversy continues to exist at all in the ins.sr.t i l ' l*lation, it is scarcely of " sufficient immediacy and rs...t V to warrant the issuance of a declaratory judgment." Ma ry. gro t
."1ualty Co. v Pacific Coal & Oil Co.,
supra.
4 In fact, the iss.<:n 'h'w before this Court are entirely hypothetical and conjectural; th.,g.
situation that IA*/ tu g.,,r develop."
Brown & Root, Inc. V gig Rock i
Corporation, su r4-
% such, they are not presently justiciable s
and the Court is Wli t'*"It power to consider them.
See Alabama State Federation of Lit /,r Y PlcAdory, supra.
Consc >:rn '
i
't. must be remembered, has stated that it a
has no intentic. og g,'oceeding with the conduct complained of by plaintiff.
5<:<> t:sli tbit B.
Significantly, its actions during j
the last six yeara tg\\ n been uniformly consistent with this state-
/
ment.
Moreover, r vu" if the company were to change its position e
on the use of ixed "N tde fuel, it could still not implement j
Amendment No. 4 Vit ti""t first securing the authorization of the h
NRC Licensing 3:ard
'4 the course of administrative proceedings,
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including public hon' S ugs. See Exhibit A.
4 W
Where admi 9
bistrative action is involved, the courts have consistently re g need to intervene before a final agency determination is mad".
The Supreme Court has spelled out the relevant considerat is ony
""['tvcanddeclaratoryjudgment reme-d s
:retionary, and courts tradition-l ally have,"'<'n reluctant to apply them to administr's' ' vc determinations unless these 4
arise in t,
context of a controversy ripe _
for 3 die i 'l resolutions. Without undertaking
- Y t in intricacies of the ripeness c " '"
\\t is fair to say its basic rationale s te p mg.Ou t the courts, through avoidance
" adjudication from entangling e e
'n abstract disagreements over j
administ Ni ive policies, and also to protect 1
l 9
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n V
U
.I the agencies from judicial interference until a
the administrative decision has been formal-ized and its effects felt in a concrete way by challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the j
parties of withholding court consideration.
I Abbott Laboratories v Gardner, 387 US 136, 148-49, 87 S Ct 1507, led 2d (1967) (Footnote omitted). A dispute cannot fairly be
)
considered " fit" for judicial consideration until a final adminis-trative decision has been rendered and all available administrative a
remedi~s have been exhausted.
See McCauley v Waterman S. S.
Corp.,
e s
1 327 US 540, 66 S Ct 712, 90 led 839 (1946); Myers v Bethlehem Shipbuilding Corp., 303 US 41 48 S Ct 459, 82 led 638 (1938);
Rhodes v United States, 574 F2d 1179 (5th Cir 1978).
In view of this authority, the Court's adjudication of I
the Big Rock issues prior to resumption and completion of the NRC 1
licensing proceedings and exhaustion by plaintiff of its adminis-trative remedies would be decidedly premature.
See Abbott Labora-I tories v Gardner, supra. Continuation of the present litigation would necessarily involve judicial review of agency action which i
is by no means final and which is clearly subject to modification q
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as a result of ongoing administrative proceedings.
a sq Moreover, the Court should weigh practical policy con-siderations in determining whether continued judicial involvement is warranted at this time.
It is now well established that the doctrine of justiciability "has become a blend of constitutional requirements and policy considerations."
Flast v Cohen, 392 US 83, 97, 88 S Ct 1942, 20 led' 947 (1968); accord, International
)
Society for Krishna Consciousness of Atlanta v Evans, 601 F2d 809 (5th Cir 1979). Accordingly, it is appropriate for the Court to i
consider as relevant to determining justiciability, "the hardship to the parties" of withholding or postponing court consideration, i
Abbott Laboratories v Gardner, supra at 149, and/or simply whether i
i 1
h the case might, at some later date, be in a better posture for j
litigation.
There are no compelling policy reascns for allowing the instant litigation to continue.
In view of the above-cited necessity for additional administrative action and the present unavailability of reprocessed plutonium, there is absolutely no risk that the action plaintiff seeks to forestall can be carried out anytime within the foreseeable future.
And, in the unlikely event that circumstances change, the plaintiff, as a party to the 1
licensing proceeding, is assured of ample notice and an opportunity to be heard, as well as time to seek judicial intervention then, if necessary. Accordingly, dismissal of the instant action can d
impose no hardship on the plaintiff.
See Abbott Laboratories v Gardner, supra.
1 CONCLUSION j l
This suit no longer presents a case or controversy 4
which is justiciable before this Court.
Because of the action of
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the NRC and events intervening since the suit was commenced, all controlling issues have been effectively mooted.
Plaintiff has 1
not only received in administrative proceedings all the relief M
it sought from the Court, but it has also been assured by Consumers j
that the company no longer has any intention of taking the action which plaintiff found objectionable.
To the extent that any controversy remains between the parties, it is not now ripe for judicial determination, nor likely to ripen in the foreseeable future.
The issues presently before the Court are purely hypothetical and may never need to be addressed.
1 Moreover, any judicial intervention prior to the completion of the pending administrative proceedings and the issuance of a final 1
. agency determination would be clearly contrary to the ripeness l
doctrine.
4 i
9 O
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For these reasons, Consumers' Motion to Dismiss should be granted.
Dated:
January J4 _, 1982 WARNER, NORCROSS & JUDD j
s*f[ Q "T3D By William K.
Holmes N
s By
/&e./$
th -
Jon P.
Bacnelder i
tto eys for Consumers Power Co.
Business Address:
900 Old Kent Building Grand Rapids, Michigan 49503 Telephone:
(616) 459-6121 i
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