ML20099L398

Affidavit of DA Brownlee Re Opposition to Lilco 850227 Renewed Motion for Summary Disposition.Certificate of Svc Encl

ML20099L398
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	03/15/1985
From:	Brownlee D KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:
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ML20099L390	List: ML20099L385 ML20099L392 ML20099L398
References
OL-3, NUDOCS 8503200579
Download: ML20099L398 (60)

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e MCF.ETEC USNPC UNITED STATES OF AMERICA 20 #036 NUCLEAR REGULATORY COMMISSION LFriCf 0F SECEGAR' BEFORE THE ATOMIC SAFETY AND LICENSING BDARDG C & SERV'Cf J.4NCH In the Matter of )

) Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY ) (Emergency Planning)

)

(Shoreham Nuclear Power Station, )

Unit 1) )

AFFIDAVIT The undersigned, David A. Brownlee, being duly sworn, deposes and says as follows:

1. I am a partner in the firm of Kirkpatrick &

Lockhart, ~ counsel to the Intervenor, County of Suffolk, in these proceedings. I make this Affidavit in support of the Answer of County of Suffolk and State of New York in Opposition to LILCO's Renewed Motion for Summary Disposition.

2. Since May, 1984, I have acted as principal trial counsel for the County of Suffolk in the action captioned County of Suffolk v. Long Island Lighting Company now pending in the Supreme Court of the State of New York, County of Suffolk, and consolidated in that Court at Consolidated Index No. 84-4615 with actions captioned Mario M. Cuomo v. Long Island Lighting Company and Town of Southampton v. Long Island Lighting Company which were originally filed in the Supreme '

Court of the State of New York in Albany County and Suffolk B503200579 850319 PDR ADOCK 05000322 9 PDR 1

I

t County, respectively. The consolidated cases are referred to herein collectively as the " State Court Actions." I have personal knowledge of the pleadings and proceedings in the State Court Actions.

3. On August 6, 1984, LILCO filed its Motion for Summary Disposition of Contentions 1-10 (The " Legal Authority" l

Issues) pursuant to 10 C.F.R. 52.749 (1984). The Motion for Summary Disposition requested this Board "to resolve Contentions 1 through 10 in this proceeding in LILCO's favor."

Motion for Summary Disposition, p. 1.

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4. On February 27, 1985, LILCO filed its Renewed Motion for Summary Disposition of Legal Authority Issues on Federal-Law Grounds (" Renewed Motion"). The Renewed' Motion l urges this Board to decide LILCO's claim that any state-law-based restrictions on LILCO's performance of the offsite emergency planning functions set forth in LILCO's Transition Plan would be void because they are preempted under the Supremacy Clause of the U.S. Constitution.

5. The Renewed Motion represents that the

"[F]ederal' law questions were never placed for decision before the state court since the case was decided on cross motions to 4

l dismiss and for summary judgment limited by the Court's October 2, 1984 Order to state law issues, and the case thus never developed to the point where LILCO would have filed an answer and pleaded its formal defenses." (Renewed Motion, p. 8, n.

11). That statement ignores LILCO's repeated representations to the New York State Supreme Court and to the United States

• District Court (E.D.N.Y.) that the federal preemption issue is part and parcel of the State Court Actions and should be decided in the State Court Actions. That representation has been made in the following instances:

(a) County of Suffolk filed a Complaint on March 8, 1984 in the Supreme Court of New York, Suffolk County, seeking a declaration that LILCO's implementation of the Transition Plan is unlawful and illegal under the Constitution and laws of New York State. LILCO moved to dismiss the County's action on April 6, 1984 and filed a supporting Affidavit of Herbert M. Leiman, Esq. dated April 6, 1984 stating that the issues presented were not within the subject matter jurisdiction of the New York Supreme Court and " fail to state a cause of action because they have been preempted by federal law, in particular, the Atomic Energy Act of 1954 (the "AEA") and the Nuclear Regulatory Commission regulations implementing the AEA." Affidavit dated April 6, 1984, 1 2.

Q (b) Mario M. Cuomo filed a Complaint for Declaratory Judgment on March 8, 1984 in the Supreme Court for the State of New York, Albany County, seeking a declaration (i) that LILCO's implementation of the Transition Plan would be in violation of New York State law and (ii) that LILCO lacked legal authorlty to implement the Transition Plan. LILCO moved to dismiss the State's action on April 6, 1984 and filed a supporting Affidavit of Herbert L. Leiman, Esq. dated April 6, 1984 stating that the issues presented were not within the subject matter jurisdiction of the New York Supreme Court and

" fail to state a cause of action because they have been preempted by federal law, in particular, the Atomic Energy Act of 1954 (the "AEA") and the Nuclear Regulatory Commission regulations implementing the AEA." Affidavit dated April 6, 1984, 1 2.

(c) LILCO removed both the State and the County actions to the U.S. District Court for the Eastern District of New York on the ground that Plaintiffs' actions arose under the Constitution and laws of the United States. In support of its Petitions for Removal of both State and County actions, LILCO represented to the U.S. District Court (E.D.N.Y.) that the State Court Actions arose "under the Constitution and laws of the United States, and particularly the Supremacy Clause and l

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the Fourteenth Amendment of the United States Constitution and the Atomic Energy Act." Petitions for Removal dated April 5, 1984, 5 3.

(d) Plaintiffs thereafter moved to remand both actions to the New York Supreme Court on the ground that Plaintiffs' causes of actions did not arise under the Constitution or laws of the United States and were not within the original or removal jurisdiction of the U.S. District Court. Plaintiffs' Motion for Remand filed April 24, 1984, p.l.

(e) In support of its Petitions for Removal, LILCO filed a Memorandum of Law in Opposition to Motion for Remand dated May 7, 1984. That Memorandum represented to the Court that "Suffolk County's Complaint and the context in which this action arises ... show conclusively that any claim that the LILCO Transition Plan is unlawful ineluctably rests on federal law and necessarily must begin with an analysis of federal law." Memorandum filed May 7, 1984, pp. 6-7. LILCO further represented to the Court that: "Suffolk County's asserted right to a declaration that LILCO's implementation of LILCO's' Transition Plan is unlawful both finds it source in federal law and requires resolution of a substantial question of federal law in dispute between the parties." Memorandum filed May 7, 1984, p. 14 (emphasis supplied).

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(f) At the argument on Plaintiffs' Motion for Remand, counsel for LILCO represented to the Court (Altimari, l

i J.) that the central issue in the State Court Actions was a question of federal law: "Suffolk County and New York ... have claimed that LILCO does not have the authority to perform certain functions after a license is granted .... That conduct, I will submit, is federal in character, and the County's challenge is to that conduct. I just don't see any way that you could resolve the complaint, the claim that the County is making and that New York is making, without hitting a federal question, because it's their claim as to LILCO's conduct." Transcript of Argument before Hon. Frank X.

Alhmiari, U.S.D.J., May 25, 1984, p. 11 (emphasis supplied).

(g) In response to Judge Altimari's direct question, counsel for LILCO asserted that a defense grounded in federal law was within the State Court's jurisdiction:

i THE COURT: Can't a State Court Judge handle the )

preemption type defense, i MR. SISK: If it were a defense, yes. The State l Court would have jurisdiction. j Transcript of Argument before Hon. Frank X. Altimari, U.S.

D.J., May 25, 1984, p. 21.

I (h) By Memorandum and Order dated June 15, 1984, the U.S. District Court (Altimari, J.) granted Plaintiffs'MotiontoRemand,holdingthathlaintiffs' actions arose under state law and were not within-the jurisdiction of the U.S. District Courts. The Court expressly held that the I

issue of federal preemption presented by LILCO was a defense to Plaintiffs' state law Complaints; that the preemption defense did not constitute a basis for federal jurisdiction; and that the State Supreme Court was the proper forum for LILCO to raise that defense. Cuomo v. LILCO, Civ. Act. No. 84-2328 (U.S.D.C.,

E.D.N.Y.) Memorandum and Order dated June 15, 1984, pp. 12-26.

(i) On May 16, 1984, Plaintiff, Town of 1

Southampton, had filed a Verified Complaint in the Supreme Court of the State of New York, County of Suffolk, which sought 1

a declaration-(i) that LILCO's implementation of its Transition Plan is, and would be, unlawful and illegal under.the Constitution and laws of the State of New York and (ii) that LILCO lacked the legal: authority to undertake such action. On June 14, 1984, LILCO filed a Petition for Removal of the Southampton action. In support of that Petition, LILCO represented to the Court that the Southampton action " arises under the Constitution and laws of the United States, and particularly the Supremacy Clause and the Fourteenth Amendment l-i

4 of the United States Constitution and the Atomic Energy Act."

Petition for Removal dated June 14, 1984, 1 3.

(j) Following the District Court's remand of th'e State and County actions, Defendant, LILCO, moved to dismiss Southampton's Complaint by Notice of Motion dated June 29, 1984. LILCO filed a supporting Affidavit of Herbert M.

Leiman, Esq. dated June 29, 1984 stating that the issues were not within the subject matter jurisdiction of this Court and

" fail to state a cause of action because they have been preempted by federal law in particular, the Atomic Energy Act of 1954 ("the AEA") and the Nuclear Regulatory Commission regulations implementing the AEA." Affidavit dated June 29, 1984, 9 2.

(k) Following remand of the State and County actions to this Court and upon stipulation of all parties, the actions filed by Plaintiffs Cuomo, County of Suffolk and Town of Southampton were consolidated in the Supreme Court of the State of New York, Suffolk County, as Consolidated Index No.

84-4615. LILCO renewed its Motion to Dismiss Plaintiffs' actions on August 13, 1984 pursuant to Section 3211(a)(2) and (7) of the CPLR on the ground that (i) the Court lacked subject matter jurisdiction because the actions did not present a justiciable controversy and (ii) the Complaints failed to state

a cause of action because New York law did not prohibit LILCO from performing the functions set forth in the Transition Plan.

In connection therewith, LILCO filed a supporting Affidavit of Rosalind M. Gordon, Esq. dated August 13, 1984 said to

" supersede" the three previously-filed Affidavits of Herbert M.

Leiman, Esq. that had asserted preemption as a ground for LILCO's Motions to Dismiss the several Complaints.

Nonetheless, LILCO's Memorandum of Law in Support of Motion to Dismiss represented that the State Court Actions "obviously implicate controlling issues of federal law [i.e.,

preemption]." Notwithstanding the pendency of LILCO's Motion for Summary Disposition filed with this Board seven days earlier, LILCO also represented to the Court that "This Memorandum of Law does not address or waive the issue of federal preemption." LILCO Memorandum of Law, pp. 6-7.

(emphasis supplied).

(1) On September 11, 1984, Plaintiffs filed a Cross Motion pursuant to Sections 2215 and 3211(c) of the CPLR requesting that the Court (i) treat LILCO's pending Motion to Dismiss as a Motion for Summary Tudgment and (ii) grant summary judgment in favor of Plaintiffs. At a subsequent status conference before the Court, counsel for LILCO reiterated LILCO's previously-stated position that preemption was an issue l

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I in the State Court Actions in the following terms: "Because one of the defenses that would be raised to that suit involved j the question of preemption, if we ever got that far, we attempted to remove it to Judge Altimari's court." Transcript of Status Conference before Hon. William R. Geiler, J.S.C.,

September 18, 1984, p. 15 (emphasis supplied). At that same time, counsel for LILCO also acknowledged that LILCO had already asserted the preemption defense in the State Court Actions: "The motion which we originally filed before we removed the case so that we have a responsive pleading of record did move to dismiss, and it did raise the preemption argument." Id., p. 19 (emphasis supplied).

6. The Renewed Motion represents that the State and County "have consistently taken the position that their Complaints in New York State Court raised only state law issues" (Renewed Motion, p. 2, n. 2). In fact, Intervenors have consistently stated (i) that the causes of action alleged in the State Court Actions arise under state law and (ii) that the issue of federal preemption that LILCO has repeatedly raised in the State Court Actions constitutes a defense to the Intervenors' state law claims. Intervenors have consistently stated that, if the state court finds that LILCO has no authority under state law to implement the Transition Plan,

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then LILCO's preemption defense must be addressed as part of the decision on the merits. Intervenors have stated that position in the following instances:

(a) The County's Memorandum in Support of Plaintiff's Motion for Remand states the distinction between the basis of the County's Complaint and the nature of LILCO's defenses:

The sum and substance of Suffolk County's claim, as alleged in the Complaint, is LILCO's " usurpation of the police power of Suffolk County and the State of New York" in contravention of the Constitution and laws of the State of New York....LILCO's Petition for Removal is grounded on the proposition that, because LILCO asserts it has defenses (including federal preemption) which are based on federal law, the County's claim is one that " arises under" the Constitution and laws of the United States. As we demonstrate below, such a basis for removal was specifically and expressly rejected by the United States Supreme Court.... Memorandum in Support of Plaintiff's Motion for Remand dated April 23, 1984, pp. 1-2.

(b) The County's Reply Brief with respect to the removal / remand issue stated that the County's claim arose under the state law and that LILCO's preemption claims constituted a defense to that claim. See, e.g., the following:

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n In this case....the federal preemption question is not a necessary element, or indeed any part of the County's claim. The controversy in this case is whether LILCO can, under state law, exercise state police power functions

... LILCO ... contends that it can exercise police powers either because federal law permits it or because federal law requires it or because federal law prohibits _the County from seeking to prohibit LILCO from exercising such powers. Those propositions constitute statements of LILCO's defense; indeed, if a court were to determine that New York law permits LILCO to exercise state police powers, the question of federal preemption would never be reached. In sum, LILCO's federal preemption defense is not an element of the County's cause of action, and it does not justify removal of this action.

Plaintiff's Reply Brief dated May 21, 1984, pp. 13-14.

(c) The County's position was reiterated to the New York Supreme Court in connection with LILCO's Motion to Dismiss and the Plaintiffs' Cross Motion for Summary Judgment.

See, e.g., the following:

The State and County filed these declaratory judgment actions in state court....By these actions, Plaintiffs seek a declaration that LILCO does not have authority to carry out its Transition Plan....LILCO removed the State and County actions to the U.S.

District Court for the Eastern District of New York, claiming that Plaintiffs' challenge to LILCO's legal authority presented a question of federal law that was within the l  !

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original jurisdiction of the federal courts. The State and County filed Mo,tions for_ Remand of their actions to this Court, asserting that their causes of action arose under state law and that LILCO's preemption contention constituted an affirmative defense to the causes of action but was not an essential element of the claims alleged.... Judge Altimari held that the issue of preemption arose only by way of affirmative defense and that Plaintiffs' claims and any defenses thereto should be resolved by the Supreme Court of the State of New York. Plaintiffs' Joint Brief in Opposition to LILCO's Motion to Dismiss and in Support of Plaintiffs' Cross Motion for Summary Judgment dated September 11, 1984, pp. 19-21.

7. The Renewed Motion's representation that the State and County "have consistently taken the position that their complaints in New York State Court raised only state law issues" (Renewed Motion, p. 2, n. 2) is inconsistent with statements of LILCO's counsel made in open court, acknowledging the position of the State and County that LILCO's preemption issue constitutes a defense to the State Court Actions:

MR. FARNHAM (counsel for LILCO): Last spring, at the time we went before Judge Altimari, he did decide that because of the Franchise Tax Board case, the careful pleading of the county and the state had limited their cause of action to state law grounds and, therefore, it should be remanded.

Now, the thrust of that argument was by Mr.

Brownlee, and to quote directly from his argument to the court, this is.to Judge Altimari: "If the Court is to determine that LILCO does not have that power, "

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that is, the power under state law to do these things, "then and only then does the federal preemption issue become relevant."

l And on that argument and on other arguments Mr.

Brownlee beat me and succeeded in having Judge Altimari remove the entire case back to the state court, and they were consolidated here. Transcript 1

of Status Conference before Hon. William R. Geiler, J.S.C., on September 18, 1984, pp. 16-17 (emphasis supplied).

8. By Order dated October 2, 1984, the New York Supreme Court determined that it would dispose of each of the issues presented by the pleadings and motion papers in the State Court Actions separately and that-it would first address LILCO's " authority to undertake and implement an evacuation plan in the event of a nuclear accident..." Cuomo v. Long i

Island Lighting Company, Memorandum Order dated October 2, 1984. By Memorandum Opinion dated February 20, 1985, the N.Y.

Supreme Court'has resolved that legal authority issue. The Court has determined that the functions that LILCO intends to perform fall within the State's historic police power; that New York law (including specifically Executive Law, Article 2-B) does not authorize LILCO to exercise the functions contained in the Transition Plan; that LILCO is a corporation and has only those powers conferred upon it by state law; and that LILCO's corporate powers do not include the authority to implement the Transition Plan. The Memorandum Opinion directed the l

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• i e l submission of a proposed Judgment reflecting the Court's decision.

9. Plaintiffs' Proposed Declaratory Judgment, now before the Court for execution, directs LILCO to present within fifteen (15) days any further defenses that LILCO may have, including its previously asserted preemption defense. In response, LILCO advised the Court that it intends to assert, and does not waive, the preemption defense, and LILCO has submitted a proposed Partial Summary Judgment to the Court which provides that LILCO shall, within twenty (20) days, raise or renew any defenses that it may have, including the issue of federal preemption. LILCO has also advised the Court that it will move the Court to abstain from or defer consideration of its renewed federal preemption defense. Letter of James E.

Farnham, Esq. dated March 8, 1985, p. 3. Nonetheless, the proposed forms of Judgment submitted by the State and County and by LILCO itself both recognize that LILCO must renew its preemption defense as part of the State Court Actions.

David A. Brownlee Sworn to and subscribed before me this g day of March,* 1985.

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C'CHETEC L-S M C UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '85 MAR 20 A!0:16

-Before the Atomic Safety and Licensing Board g7 g y COCKETING & SERVICf.

SRANCH

)

In the Matter of ) .

)

4 LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3 i ) (Emergencp'Pl^anhing')~

(Shoreham Nuclear Power Station, )

Unit 1) ~ )

)

CERTIFICATE OF SERVICE

.I hereby certify that copies of ANSWER OF SUFFOLK COUNTY AND STATE OF NEW YORK IN OPPOSITION TO LILCO'S RENEWED MOTION FOR

SUMMARY

DISPOSITION, dated March 19, 1985, have been served on the following this 19th day of March 1985 by U.S. mail, first class.

• Morton B. Margulies, Chairman *Edwin J. Reis, Esq.

Atomic Safety and Licensing Board Bernard M. Bordenick, Esq.

U.S. Nuclear Regulatory Commission- U.S. Nuclear Regulatory Com.

Washington, D.C. 20555 Washington, D.C. 20555 I

• Dr. Jerry R. Kline **W. Tay' lor Reveley, III, Esq.

4 Administrative Judge Hunton & Williams i Atomic Safety and Licensing Board P.O. Box 1535 U.S. Nuclear Regulatory Commission 707 East Main S Washington, D.C. 20555 Richmond, Virginia 23212

• Mr. Frederick J. Shon ' *Ms. Donna D. Duer Administrative Judge Atomic Safety'and Licensing

! Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Com.nission Washington, D.C. 20555 Edward M. Barrett, Esq.

General Counsel Mr. Jay Dunkleberger

.Long-Island Lighting Company- New York State Energy Office 250 Old Country Road . Agency Building 2 Mineola, New York. 11501 Empire State Plaza Albany, New York 12223-1

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+ F Stewart M. Glass, Esq.

Regional Counsel Federal Emergency Management Agency 26 Federal Plaza, Room 1349

'New York, New York 10278 Mary Gundrum, Esq.

New York State Department of Law 2 World Trade Center, Room 4614 New York, New York 10047 M

Eawrence Coe~Lanpher '

KIRKPATRICK & LOCKHART 1900'M. Street, N.W., Suite 800 Washington, D.C. 20036 I

DATE: March 19, 1985 i

• By Hand i By Federal Express I

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ok Spence Perry, Esq.- Stephen B. Latham, Esq.

.,Associace General Counsel Twomey, Latham & Shea Federal Emergency Management Agency P.O. Box 398 Washington, D.C. 20472 33 West Second Street Riverhead, New York 11901 Mr. . Brian R. McCaffrey Long Island Lighting Company Ms. Nora Bredes Shoreham Nuclear Power Station Executive Director P.O. Box 618 '

Shoreham Opponents Coalition North Country Road 195 East Main Street Wading River, New York 11792 Smithtown, New York 11787 Joel Blau, Esq. MHB Technical Associates New York Public Service Commission 1723 Hamilton Avenue The Governor Nelson A. Rockefeller -Suite K Building San Jose, California 95125 Empire State Plaza

-Albany, New York 12223 ** Hon. Peter F. Cohalan Suffolk County Executive Martin Bradley Ashare, Esq. H. Lee Dennison Building Suffolk County Attorney Veterans Memorial Highway H. Lee Dennison Building Hauppauge,-New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 ** Fabian Palomino, Esq.

Special Counsel to the Atomic Safety and Licensing Board Governor Panel Executive Chamber U.S. Nuclear' Regulatory Commission Room 229 Washington, D.C. 20555 State Capitol Albany, New York 12224 Docketing and Service Section Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory-Commission Aopaal Board 1717 H Street, N.W. U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 James B. Dougherty, Esq.

3045 Porter Street, N.W. Jonathan D. Feinberg, Esq.

Washington, D.C. 20008 Staff Counsel New York State Public.

Mr. Stuart Diamond Service Commission Business / Financial- 3 Rockefeller Plaza NEW YORK TIMES Albany, New York 12223 229 W. 43rd Street New York, New York 10036 1

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

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CITIZENS FOR AN ORDERLY ENERGY CV-83-4966 POLICY, INC., et al. MEMORANDUM AND ORDER Plaintiffs, -

-against-THE COUNTY OF SUFFOLK and PETER F. COHALAN, Defendants, LONG ISLAND LIGHTING COMPANY and .

THE SHOREHAM-WADING RIVER CENTRAL

. SCHOOL DISTRICT, i Intervenor-Plaintiffs.

! ___________________________________x APPEARANCES:

! PACIFIC LEGAL FOUNDATION Attorneys for Plaintiff Citizens for an Orderly Energy Policy

. 1990 M Street, N.W., Suite 550 Washington, D.C. 20036 -

By; Lucinda Low Swartz,.Esq.

EDWARD M. BARRETT, ESQ.

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Attorney f or Intervenor-Plaintif f Long Island Lighting Company 250 Old Country Road Mineola, New York 10501 By: Rosalind M. Gordon, Esq.

l HUNTON & WILLIAMS Attorneys for Intervenor-Plaintiff l

Long Island Lighting Company i 707 East Main Street

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Richmond, Virginia 23219 By: W. Taylor Reveley, III, Esq. .

James E. Farnham, Esq.

K. Dennis Sisk, Esq.

LOU LEWIS, ESQ.

Attorney for Plaintiff-Intervenor Shoreham Wading River

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Central School District 55 Market Street Poughkeepsie, New York 12601 i

MARTIN BRADLEY ASHARE, ESQ.

Suffolk County Attorney' H. Lee Dennison Building  ;

Veterans Memorial Highway Hauppauge, New York 11788 KIRKPATRICK, LOCKHART, JOHNSON

& HUTCHISON Attorneys for Defendants 1500 Oliver Building Pittsburgh, Pennsylvania 15222 By: David A. Brownlee, Esq.

Michael J. Lynch, Esq.

. Kenneth M. Argentieri, Esq. ,

KIRKPATRICK, LOCKHART, h1LL, CHRISTOPHER & PHILLIPS Attorneys for Defendants 1900 M Street, N.W. .

Washington, D.C. 20036 By: Herbert H. Brown, Esq.

Lawrence C. Lanpher, Esq.

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i - Z ,,__ ALTIMARI, D.J.:

The present controversy centers around the

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l County of Suf folk's lack of participation in of f-site radiological emergency evacuation planning f5r the Long

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Island Lighting Company's ("LILCO") Shoreham Nuclear

. Power Facility ("Shoreham"), an 809 megawatt nuclear powered electric generating facility located on Long Island's north shore in the County of Suffolk (the -

" County"). LILCO and its supporters contend that the County's actions may result in the denial of an operating license for Shoreham and spell financial doom and bankruptcy for the company. The County and its supporters, including the Governor of the State of New York, see Cuomo v. Long Island Lighting Co., 589 F.

, Supp. 1387 (1984), contend-that in the event of a nuclear accident at Shoreham, safe and speedy evacuation is a geographical impossibility, and that the County may rightly refuse to participate in any emergency planning.

FACTS ,

b Plaintiffs, Citizens for an Orderly Energy Policy, Inc., a not-for-profit corporation, and five of

its members (hereinafter collectively referred to as

" Citizens".or " Plaintiffs") commenced this action on or about November 10, 1983. Thereafter en April 11, 1984, the Court granted LILCO and the Shoreham-Wading River Central' School District (the " District") l' eave to intervene as plaintiffs. See 101 F.R.D. 497 (1984).

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Citizens' complaint alleges the following.

In early 1975, the County started to assist LILCO in the development of an emergency plan for Shoreham.

This spirit of cooperation is said to have lasted until

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early 1982 when the Suffolk County Legislature adopted the first of three resolutions.

On March 23, 1982, the legislature adopted resolution No. 262-1982. That resolution, in relevant pa rt , directs the Suffolk County Planning Department to prepare "a County Radiological Emergency Response Plan to serve the interest of safety,' health and welfare of the residents of Suffolk County. . . . The resolution f urther stated that the plan was not to be submitted to the Feder,al Emergency Management Agency (" FEMA") and ,

bne Nuclear Regulatory Commission ("NRC") until approved by the County Legislature.

Resolution No. 456-1982, adopted on May 18, ,

1982, provides that the County has the primary responsibility for the protection of its residents in l

_. the event of a nuclear accident at Shoreham; that the i County " intends through good faith and sound planning ef forts to assure that the' best possible emergency plan and preparedness are developed"; and that LILCO has

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"gone beyond its powers as la private corporation in an attempt to usurp the rightful powers of Suffolk County."

In addition the resolution provided that Suffolk County shall not assign funds, or personnel to test or implement any radiological emergency response plan' 1

for the Shoreham Nuclear Plant unless

-that plan has been fully developed to the best of the County's ability.

Suffolk County shall.not assign funds or personnel to test or implement any radiological emergency response plan for the Shoreham Nuclear Plant unless that plan has been the subject of at -

least two public hearings, one to be held in Riverhead, and one to be held

, in Hauppauge.

Suffolk County shall not assign funds or personnel to test or implement any radiological emergency response plan for the Shoreham Nuclear Plant unless that plan has been approved, after public hearings, by.the Suffolk County-Legislature and the County Executive.

The third and central resolution, No. -

111-1983, was adopted on February 17, 1983. In sum, the six page resolution states that af ter extensive study the legislature determined that no emergency plan l 1

.could adequately protect the health and safety of the County's residents and, therefore, no local plan was to be adopted or implemented. Accordingly, the County's radiological emergency planning process was terminated e m ,~ .. .....-. ; .: w . ..., -

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i and the County Executive was " directed to take all actions necessary to assure that actions taken by any other governmental agency, be it state or federal, are consistent with the decisions mandated by this Resolution."

Plaintiffs allege that the County's resolutions ' "e enacted solely on the basis of a perceived need to protect the public from the dangers of nuclear power." Complaint at par. 21. They assert

-that the County's resolutions express an intent to refuse to develop or consider any emergency plan and to determine the adequacy of all radiological response plans in an attempt to regulate the operation of Shoreham on the basis of radiological szards ,and

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safety, a' field preempted by federal law. In addition, they contend that the' County's decision that ' no emergency plan could adequately protect the public health and safety is in conflict with the NRC's

. responsibility to determine such issues and frustrates-

!T_ _ _ _ the federal. policy of encouraging the development of nuclear power. . Accordingly, plaintiffs seek a judgment declaring the above resolutions void and illegal as preempted by the Atomic Energy Act (the "AEA"). 42 U.S.C. S 2011, et. seq.

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For their state law cause of action,

] plqintiffs contend that the County has a state constitutional duty to protect the health, safety and welfare of its residents, see N.Y. Const. art.,9, S 2(c)(10), and a statutory duty to prepare a 16 cal.

disaster preparedness plan and to provide assistance and relief in the event of a radiological emergency.

See N.Y. Exec. Law SS 20, 23, 25 (McKinney 1982).

Plaintiffs maintain that the County's refusal to participate in emergency planning and its intended

, . refusal to act should an accident occur are contrary to the County's duty. For their relief, plaintiffs seek  ;

an injunction requiring the Suf folk County Planning Department to develop or assist in the development of a radiological emergency response plan for Shoreham and requiring the County to make available all necessary ,

resources in-order to protect the health and safety of its residents.

I LILCO's intervenor complaint makes two claims for relief. First, it endorses plaintiffs' argument that the County's resolutions and acts " constitute an 4 impermissible attempt by a local government to regulate i and prevent the operation of a commercial ' nuclear power g gge ,,,g g, g

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l station on grounds . . . regarding radiological safety"

~

and are, therefore, preempted by the AEA. LILCO Complaint at par. 57. Second, LILCO alleges that

" de f e nda nts ' about-face regarding emergency planning for Shoreham, predicated as it was on an impermissible usurpation of the NRC's exclusive regulatory authority, constitutes an arbitrary, capricious, and malicious deprivation of LILCO's property without due process of law." Id. at par. 58; see LILCO complaint par. 56.

By way of. relief, LILCO seeks a judgment declaring the resolutions in question void and illegal. In addition, unlike Citizens, LILCO seeks an injunction under 42 U.S.C. S 1983 and the due process clause of the United States Constitution " requiring Suf folk County and "fPeter) Cohalan to fulfill their duty to exercise their governmental functions fairly by taking all reasonable steps necessary to assist LILCO in emergency planning for Shoreham."

Lastly, the district's intervenor complaint

-- - is essentially identical'to Citizens but adds that defendants' acts have specifically violated the AEA

~

and 'give rise to jurisdiction under the AEA itself.

.. ...-- : .:.c..t.,

..o . ..

9 Defendants move to dismiss the original and l

intervenor complaints pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). While i

defendants challenge Citizens' standing to main _tain the action and have raised other jurisdictional questions, and while "[ilntervention cannot cure any -

jurisdictional defect that would have barred the . . .

court from hearing the-original action," 7A C. Wright &

A. Miller, Federal Practice and Procedure, S 1917, at 584 (1972),the court has decided to address the three.

motions to dismiss in one opinion regardless of the determination on Citizens' standing. The court follows

~

this procedure because if Citizens is without standing, LILCO's pleading would be considered as a separate action with an independent basis for jurisdiction over defendants. Failure to adjudicate LILCO's claim would merely require LILCO to file a new suit and bring the parties to the point where they now stand after an unnecessary delay. See Miller t Miller Auctioneers, Inc. v. G.W. Murphy Industries , Inc., 472 F.2d 893, 895-96 (10th Cir. 1973); Hackner v. Guaranty Trust Co.,

117 F. 2d 95 -(2d Cir.), cert. denied, 313 U.S. 559 (1941); Corporation Venezola de Formento v.' Vintero i

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i Sales Corp., 477 F.Supp. 615, 622 (S.D.N.Y. 1979).

Moreover, while it is sometimes said that an intervenor accepts the pleadings as he finds them and may not add a claim, for much the same practical reason of avoiding unnecessary delay, and because defendants have not objected and have addressed the issue, it is proper for LILCO to prosecute its additional claim under the Civil Rights Act.

DISCUSSION

.I

, Initially, the County challenges this court's jurisdiction over this action. Citizens contends that this action arises under federal' law. See 28 U.S.C. S 1331. Specifically, Citizens cites th,e -

Constitution's supremacy clause, U.S. Const, art. VI, S 2, which is the basis of the preemption doctrine, and the Atomic Energy Act. 28 U.S.C. 5 2011 et seq. The intervenors echo Citizens' contentions. The defendants maintain that Citizens' action does not arise under 1

_;;;;. the supremacy clause because plaintiffs are incorrect )

l in their assertion that the County's actions are l

preempted by the AEA. The defendants also argue that a cause of action may not arise solely under the z . . 2 ,.. m ... .... - -

supremacy clause, because .that clause is not a source of federal rights. Additionally, the defendants contend i

that Citizens' action may not be said to arise under the AEA because the AEA expressly precludes private actions to enforce its terms and the plaintiffs have alleged no substantive violation of the AEA.

An action may be said to arise under an Act of Congress if it presents an issue requiring construction or interpretation of that Act. Ivy 1 1

Broadcasting Co. v. American Telephone and Telegraoh  !

Co., 391 F. 2d 486, 493 (2d Cir. 1968); T. B. Harms Co.

v. Eliscu, 339 F. 2d 823, 828 (2d Cir. 1964), cert.

denied, 381 U.S. 915 (1965). Note,'The Outer Limits of

" Arisino Under," 54 N.Y.U. L. Rev. 978, 1004, (1979).

l In the instant case, the critical issue, at I least with regard to Citizens' federal cause of action, is whether the AEA preempts the County's resolutions.

This issue turns squarely on the construction and interpretation of the AEA. Plaintiff's first claim for relief, along with the identical claims of the intervenors, must necessarily arise under the AEA, notwithstanding that the AEA does not provide for private enforcement of its terms. See Suscuehanna

i. en. C

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i valley Alliance v. Three Mile Island, 619 F. 2d 231, 238 (3d Cir. 1980), ("'no action' language in 42 U.S.C.

5 2271(c) is not couched in jurisdictional terms"),

cert. denied, sub nom, General Public Utilities Corp.

v. .Susquehanna Valley Alliance, 449 U.S. 1096 (1981).

As this court recently stated in a related case involving most of the parties now before the court:

the f act that plaintiff s could not have originally commenc'ed this action in this Court under the AEA [does not necessarily bar] removal of their actions

. to the federal court. So long as a federal' question appears on the f ace of plaintiffs' complaint . . . removal would be proper.

Cuomo v. Long Island Lighting Co., 589 F. Supp. at i

.)395. Moreover, as ar.other judge of this court has  !

l stated, "[t]he availability of a federal remedy is unnecessary to create arising under' jurisdiction as I I

long as plaintiffs' right to relief depends upon the j construction or application of federal law." County of

_ _ . ~ .

Suffolk v. Long Island Lighting Co., 1250, 1257

'(E.D.N.Y. 1982). In fact, plaintiffs do not allege a violation of the terms of the AEA or seek relief thereunder. Instead they seek relief under the Federal I

1 l

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1' Declaratory Judgment Act, 28 U.S.C. 5 2201, by way of a judgment declaring defendants' acts illegal and void as preempted by federal law.

Accordingly, in cases most analogous to - the one at bar, courts have exercised jurisdiction and reached the merits of the controversy before them. For example, in United States v. City of New York, 463 F.

Supp.-604 (S.D.N.Y. 1976), plain' tiff sought a judgment declaring section 175.107(c) of the New York City Health Code unconstitutional insofar as it had been

,. preempted by the AEA. The Court concluded that it had jurisdiction over plaintiff's claim since it arose under the AEA. Id.. at 607. Other cases are not to the l cbntrary. Northern States Power Co. v. Minnesota, 447

- F.2d 1143 (8th Cir. 1971), aff'd mem., 405 U.S. 1035 (19.72). ,

Because plaintif f's first cause of actlon .

requires construction and interpretation of the AEA', it arises under that statute. As with a plaintiff who

~J_~.~.T.~1l seeks injunctive relief from state regulation, "[a]

plaintiff who seeks (declaratory] relief from state regulation, on the ground that such regulation is preempted by a federal statute which, by vibtue of the.

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- .. . _ - . . = _

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1 Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal

- courts have jurisdiction under 28 U.S.C. S 1331 to resolve."' Shaw v. Delta Airlines, Inc., U.S. ,

103 S. Ct. 2890, 2899 n. 14 (1983). To suggest otherwise would create a void in federal jurisdiction i

in this critical area.

In addition, whether or not LILCO's complaint under 42 U.S.C. S 1983 states a cause of action on which LILCO could actually recover, the claim alieged is not so patently without merit, wholly insubstantial, or essentially frivolous as to warrant di smissal for lack of jurisdiction. See Hagans v.' Levine, 415 U.S.

4 528, 536-37, (1974); State of New York District Attorney Investigators Police Benevolent Association, Inc. v. Richards, 711 F. 2d 8, 10 (2d Cir. 1983); Kohl Industrial Park Co. v. County of Rockland, 710 F. 2d 895,-899 (2d Cir. 1983).

II.

Defendants 1next challenge Citizens' and the District's standing to prosecute this action. j Significantly, defendants have not challenged LILCO's standing; the determination of standing will, i

. \

. . . . . . . . . _ . : ,, n :. n. ,

1 1

i therefore, not bar consideration of the essential questions raised in this litigation.

The requirement of standing " subsumes a blend of constitutional requirements and prudential; considerations." Valley Forge Christian College v.

j Americans United For Separation of Church and State, Inc., 454 U.S. 464, 471 (1982) (citing Warth v. Seldin, 422 U.S. 490, 498 (1975)). Article III of the Constitution " requires the party who invokes the l court's authority to 'show that he personally has suffered some actual or threatened injury as a result of putatively illegal conduct of the defendant; and that the injury ' fairly can be traced to the challenged action' and 'is likely to be redressed by a favorable

'Becision.'" Valley Forge, 454 U.S. at 472. In addition, the Supreme Court has established a nonconstitutional standing requirement "that the interest'of the plaintiff, regardless of its nature in the absolute, at least be ' arguably within the zone of

- - - - - interests to be protected or regulated' by the statutory framework within which his claim arises."

Simon v. Eastern Kentucky Welf are Rights Organization, 426 U.S. 26, 39 n. 19 (1976) (quoting Data Processing 4

Service v. Camp, 397 U.S. 150, 153 (1970)).

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An association, such as Citizens,

. has standing to bring suit on behalf of its members when: (a) its mem-bers would otherwise have standing to sue in their own right; (b) the

interests it seeks to protect are ger-3 mane to the organization's purposes; and (c) neither the claim asserted' nor the relief requested requires the participation of individual members in the lawsuit.

Hunt v. Washington Advertising Commission, 432 U.S.

333, 343 (1976). Defendants contend that Citizens f ails to satisfy the first criteria of this standard and LSus lacks standing.

4 Citizens alleges that its members suf fered an injury by virtue of the harm they will suffer as i

taxpayers, LILCO ratepayers, LILCO shareholders, and persons residing within the Shoreham area. The mere fact thet a person is a taxpayer is an insufficient basis for standing to object to particular government conduct. Valley Force, 454 U.S. at 464. Similarly, confe*: ring standing on any person who is a LILCO ratepayer would permit judicial actions by millions of persons with only the most " generalized grievance."

Id. at 470, 478-79. Furthermore, the mere fact that a

{

person is a shareholder does not endow that. individual

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l' with standing to bring suit whenever the corporation's interests are at issue, even though the value of the shareholder's stock may arguably be affected.

Vincel

v. White Motor Corp., 521 F.2d 1113, 1118 (2d.Cir.

1975); Weiner v. Winters, 50 F.R.D. 306, 310 (S.D.N.Y.

1970).

Citizens also argues, however, that its members have standing to sue by virtue of the fact that they are residents of the Shoreham area. Citizens projects that if the County prevents Shoreham from

, operating,then LILCO will build a non-nuclear facility in the vicinity. That other facility would then have an adverse effect on the environment. Citizens analogizes its situation to that of the plaintiff,s

, found to have standing in Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59 (1977) ,

The plaintiffs in Duke Power were persons living in the vicinity of a nuclear power plant under construction. They alleged in their cause of action 7 T_ _.

that the Price-Anderson Act, which limited liability in the case of a nuclear accident, violated their rights

, under the fif th amendment. Id. at 67-68. To establish 1

an injury sufficient to confer standing,' plaintiff s l

.. . . .. . . . . . . . - . . . _ . _ . . . _ _ . _.._....._n

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l alleged that the plcnt being constructed would: emit

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small quantities of non-natural radiation; cause thermal pollution of recreational waters and interfere with the normal use of a local river; reduce

~

neighboring property values; create an. objectively reasonab'le fear of harm in the plaintiff s; and continually threaten an accident for which plaintif fs would not be adequately compensated. Id. at 73.

The Supreme Court found that the plaintiffs in Duke Power ' had' standing based upon "the 'immediate'

1. adverse ef f ects" that harmed the plaintif f s. Id.

Specifically, the court cited "the environmental and aesthetic consequences of the thermal pollution of the.

two lakes in the vicinity. . . . And the emission of non-natural radiation. " Id. at 73-74. The court avoided deciding whether "the possibility of a nuclear accident and- the present apprehension generated by this future uncertainty, are sufficiently concrete to satisfy constitutional requirements." Id. at'73.

A claim that environmental harm has resulted from a def endant's action is a suf ficient injury in

. fact to confer standing. In this case, citizens' allegation that defendants' actions might cause the on- . . . . - . . .. ,,.;

1, i

l i

abandonment of Shoreham, which in turn would cause the l

construction of a non-nuclear, polluting facility in

]

' the area, is somewhat attenuated. It is not nearly so attentuated, however, as the allegation held sufficient to confer standing in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973).

In SCRAP an unincorporated association formed by five law students from the District of Columbia

^

metropolitan area objected to a re.ilroad rate increase on the theory that such an increase would "cause use of nonrecyclable commodities as compared to recyclable goods, thus resulting in the need to use more natural resources to produce such goods, some of which

• esources might be taken from the Washington area."

I

. Id. at 688. The court held that SCRAP had standing because it could not be said that the pleaded allegations would not be proved at trial. Id. at

689-90.

- - - . Citizens' allegations of environmental harm, if true, are sufficient injury in fact to support i

standing. The court may not at this point say that Citizens' allegations would not prove true at trial.

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Furthermore, promoting nonpolluting sources of energy

] in. order to protect the environment is an interest germane to Citizens purposes as an organization.

Accordingly, Citizens has pleaded a suf ficient basis for standing. See Rockford League of Women Voters v.

. United States Nuclear Regulatory Commission, 679 F. 2d 1218, 1221-22 (7th Cir. 1982) (organization with members living in vicinity of unlicensed nuclear plant has standing to challenge NRC refusal to revoke construction permit) .

., Def endants also contend that the District does not have standing. The injury in fact to the

District is, however, more direct and concrete than that to Citizens. "There is no question that an association may have standing in its own 'right to seek judicial relief from injury to itself." Worth v. i Seldin, 422 4.S. 490, 511 (1974). The District, as a utilizer of tax revenues generated by property values, is directly affected by any actions of the County which effect the usefulness of Shoreham and its environs.

Even the appearance that the County may prevent Shoreham from operating could have a direct effect on the District's economic well-being and ability to provide for its residents. .

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, Lastly, the defendants argue that both i

Citizens and the District seek to advance interests not within the zone of interests of the AEA. The zone of interests test is a prudential requirement for standing

! apart from the case or controversy requirements of

' Article III. First formulated by the Supreme Court in Data Processing v. Camp, the zone of interests test j requires that "the interest sought to be protected by the complaint is arguably within the zone of interests ,

to be protected or regulated by the statute or 4

, constitutional guarantee in question." . Data Processing i

~

v. Camp, 397 U.S. 150, 153 (1969) (emphasis added).

The zone.of interests test is, by its terms,

!' a liberally applied standard. The AEA states as,one of its purposes the effectuation of " widespread participation in the development and utilization of j i

atomic energy for peaceful purposes to the maximum l i

extent consistent with the public defense and security and with the health and safety of the public." 42

._T.Z..... U.S.C. S 2013(d). The environmental and economic interests of the District and Citizens fall, at least arguably, within the zone of interests created by the AEA's broad purposes.

..e n . . . . . ._. o . . n : . i i . ,

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It has been necessary to ilddress the issue of standing because standing is a threshhold issue as to whether the particular parties to an action are properly-before the court. Accordingly, it is determined that Citizens and the District do.have standing to pursue their alleged causes of action. It should be noted, however, that given the unchallenged standing of LILCO in this matter the essential interests of Citizens and the District would be -

addressed regardless of their standing.

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1 III The next issue to be addressed is whether plaintiffs' claim that the County's resolutio.ns have violated the supremacy clause by attempting to regulate i a preempted area states a valid cause of action. As this matter is currently before the court on a- motion to dismiss, the material factual allegations of the complaint are accepted as true for the purpose of deciding the instant motion. -Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); oneida Indian Nation of New York

v. State of New York, 691 F.2d 1070, 1074 (2d Cir. -

1982). It would .2ppear, at any rate, that there is 1ittle d,isagreement concerning the chain of f actual

'* occurrences which has brought the parties to this point.

. It also appears that there is little disagreement concerning ,the relevant case law bearing on the issue to ,be decided. Both sides of the controversy cite Pacific Gas and Electric Company v. State Energy Resources Conservation and' Development Commission, U.S. , 103 S.Ct. 1713 (1983), and Silkwood v.

I Kerr-McGee Corp., U.S. , 104 S.Ct. 615 (1984),

in support of their positions. -

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Reduced to its simplest form, plaintiffs'

$ theory runs as follows. The defendants' conduct regarding radiation emergency response planning amounts to local regulation of the health and safety aspecta of nuclear power production. All local regulation of the health and safety aspects of nuclear power production is federally preempted. The defendants' conduct regarding radiation emergency response planning is, therefore, preempted. Accordingly, plaintiffs seek a judgment declaring the County's resolutions to be void and illegal.

Plaintif f s' argument is, of course, logically compelling if their premi'ses are correct.

The argument fails, however, because the conduct of the i defendants has not in fact amounted to.a regulation of nuclear power production. The defendants have not acted in contradiction of the AEA and plaintiffs' cause ,

of action must fail.

There are three basic means by which Congress ma'y preempt state authority. First, it may do so j expressly. Second, Congress may form a " scheme of l . federal regulation so pervasive as to make reasonable

. the inference that Congress left no room to supplement

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2 it." Pacific Gas, 103 S. Ct. at 1722 (citation omitted). Third, Congress may preempt state law to the extent that the state law conflicts with federal law.

Id. The federal government has in fact occupied the

~ entire field of nuclear powdr safety. Id. at 1726.

The County may not, therefore, regulate nuclear power production or create a moratorium on the construction of nuclear power plants because .of safety concerns.1 It is not disputed that defendants oppose Shoreham's operation. See Defendants' Memorandum in Response to Long Island Lighting Company's Memorandum in Opposition to-the Motion to Dismiss at 2. There are, however, some channels available in which 3

defendants may express their opposition without

'4mpermissibly regulating nuclear safety. Defend $nts certainly may advocate their views before the NRC despite plaintiffs' contention that such advocacy is part of the defendants' overall plan to thwart nuclear power production. See 10 CFR S 2.715(c) (1984).

__ . . similarly, defendants do not impermissibly regulate by i pursuing alleged grievances with LILCO in tl.e state and federal courts.

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1 The only act of defendants which may arguably be said to regulate nuclear safety is the passage of resolutions 262-1982, 456-1982 and 111-1983. These resolutions effectively established the County's policy to oppose nuclear power f acilities within its borders and to refuse to cooperate in radiological emergency response planning. Plaintiffs' argument is somewhat unique in that the County's refusal to act in a given area is what is objected to as preempted. Although the i passage of the resolutions may be said to be a positive act, in essence the resolutions merely manifest the l County's .'.ntention not to engage in emergency planning.

In order to datermine whether defendants' refusal to i participate is in fact a preempted regulation of I

nuclear safety, the court looks to judicial precedent and the legislative history of the AEA for guidance.

A- local . government may not establish itself as a second nuclear regulatory authority with safety j requirements over and above those of the NRC. In Northern States Power Company v. Minnesota, for example, the Eighth Circuit held that Minnesota could not exert dual control with the Atomic Energy Commission ("AEC") 2 over tha level of radioactive

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i ef fluent that could be discharged by a nuclear f acility, i 447 F.2d 1143, 1149 (1971), aff'd mem., 405 U.S. 1035 (1972). Similarly, in United States v. City of New York, it was held that New York City could .not require nuclear reactor operators to obtain a city license in addition to an AEC license. 463 F.Supp. 604, 613-14 (S.D.N.Y. 1978).

Northern States Power'and City of New York provide examples of preempted conduct, but their application to the facts in this case is limited.

1. Certainly the County may not require LILCO to comply with the County's requirements for a satisf actory RERP; whether LILCO's RERP is sufficient is a question for the NRC,.and the County may not override the NRC,'s

]udgment. Here, however, the County has not passed a moratorium on nuclear plant construction and operation based on the County's opinion that no satisfactory RERP can.be devised. Rather the County has adopted the position that a satisfactory RERP is not obtainable.

I

!! ! ... . . . The County has not and cannot supersede the. judgment of the.NRC on whether or not a license should issue for i l

i Shoreham. Once the NRC makes that decision the  ;

l County's opinion on LILCO's RERP will become' academic. l

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Pacific Gas estabished that Congress had filled the. field of nuclear power safety. 103 S.Ct. at

} 1726. That case, however, dealt with state legislation in the field of the economics of nuclear energy rather' than health and safety. Accordingly, it sheds little light on.what constitutes safety regulations by a local i

governme nt .

$ Silkwood, however, does give some guidance on the issue of safety regulations. Silkwood addressed the ,

issue of whether a state could award punitive da' mages against a tortfeasor who was responsible for a radiation injury. Because punitive damages are a means of causing potential tortfeasors to" exercise greater i care, the damages in Silkwood could 3e seen as an impermissible attempt to regulate nuclear safety s tanda rds . Silkwood, 104 S.Ct. 615, 621-27.

The Silkwood court, however, held that l

i punitive damages in cases involving radiation injuries are not preempted by the AEA. Id. The court considered that there was evidence that Congress did not intend to f

forbid states from providing for punitive damages. Id.

at 623. The legislative history of the AEA indicated that Congress assumed that the traditional remedies of i l

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2 tort law would continue to " apply with full force unless they were expressly supplanted." Id. at 1721.

The court recognized that there was tension between the conclusion that nuclear safety is the concern of federal law and the conclusion that the states may provide for punitive damages. That tension, however, was inherent in Congress' approach to nuclear regulation. Id.

An examination of the relevant legislative history in this case leads to a similar conclusion.

., Congress was well aware of the possibility that local governments might refuse to cooperate in furnishing a RERP. The possibility that a state might frustrate completion of a RERP was expressly addressed f rom the .

floor of the Senate. Senator Johnston stated that it was " reasonable to expect" that states might " simply not . . . submit an evacuation plan." 125 Cong. Rec.

S. 9473 (daily ed.) July 16, 1979. Senator Simpson I

commented that "[t]he possibility that . . . a plant

. under construction could'have its permit terminated because the state where it is sited has failed to form a plan . .

. is not a matter to which we should give on* y cursory attention." Id.

1

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The Senate debate on this point indicates that the Senate was aware that a local government could refuse to participate in emergency planning. The Senate did not, however, adopt an amendment to require local government participation. Presumably,'the Senators were motivated at least partly by a reluctance to create "a fundamental shift in the federal system .

. . [that] would give some authority to the Federal Government which has never before been obtained by the Federal Government in this area." Id. at S. 94h6

, (statement of Sen. Hart).

The Joint Explanatory Statement of the C,onmittee on Conference states that

[t]he conferees sought to avoid penalizing an applicant for an operating license if a state ~or locality does not submit an emergency response plan to the NRC for review or if the submitted ,

plan does not satisfy all the guide- <

lines or rules. In the absence of a state or local plan that complies with the guidelines or rules, the compromise permits NRC to issue an operating license if it determines that a State, local or utility plan, ,

i such as the emergency preparedness plan submitted by the applicant, provides reasonable assurance that the public health and safety is  ;

not endangered by operation of the 1 l

fraility.

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, 1980 U.S. Code Cong. & Ad. News 2260, 2270-71 (emphtsis added). This passage in~dicates that Congress

considered the possibility that a state or local a

government or both woald f ail to participate in emergency planning. Rather than require participation,

Congress provided that the utility could provide a plan.

Plaintiffs in this action ask the court to I

find that the AEA preempts the County from refusing to i

participate in emergency planning. The facts in this

- case, however, present a stronger case against preemption than the facts in Silkwood. Congress foresaw the possibility of a local government refusing to cooperate, assumed that such refusal was within the

~

i .

local governmant's discretion, and provided for the

~

utility to present it's own plan to the NRC.

i Under these circumstances it cannot be said that the defendants have impermissibly entered the preempted area of nuclear power safety regulation.

~ ~

Plaintif fs' claim for declaratory relief based on preemption is, therefore, dismissed.

1

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.IV The state law claims of Citizens and the District are before- this court based on pendent jurisdiction. Considering the dismissal of the federal causes of action of these two plaintiffs, the state law claims should now be dismissed as well. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726' (1966);

Nolan v. Meyer, 520 F.2d 1276, 1280 (2d Cir.) cert.

denied, 423 U.S. 1034 (1975).

~

V Lastly, LILCO has alleged a violation of 42 U.S.C. S 1983. In order to state a valid cause of action under 5 1983 LILCO must satisfy two criteria.

First, the conduct complained of must have been committed under color of state law. Parratt v. Taylor, 451 U.S. 527, 535 (1980). This criterion is not contested in the present action. Second, the complained of conduct must have deprived LILCO of rights, privileges, or immunities secured by the Constitution or laws of the United States. Id.

LILCO claims that the defendants violated LILCO's statutory right under the AEA to seek a license I taa operate a nuclear power f acility. 42 U.S.C.

l

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SS 2133(b), 2137, 2235. It is unquestionably true that federal statutory rights may form the basis of a valid claim under S 1983. Maine v. Thiboutot, 448 U.S. 1 (1980). In this instance, however, there are flaws in plaintiff's claim for relief.

First, the right which LILCO seeks to protect, the right to seek a license for Shoreham, has not been taken from it. LILCO is currently seeking a license frem the NRC and the NRC alone has the power to decide whether the license will be granted.

Def endants' actions in seeking to influence the NRC's decision are not in and of themselves an unlawful interference with the licensing process. See III, s'upra . ,

~~

Second, although valid S 1983 claims may arise from federal statutes. not all federal statutes are a valid-source of S 1983 claims. Middlesex County Sewerace Authority y. National Sea Clammers '

Association, 453 U.S. 1, 19 (1981). In order to l

---;_ determine whether a part'i cular statute gives rise to a  ;

i S 1983 claim the courts must consider "(1) whether '

)

Congress had foreclosed private enforcement of the statute in the enactment itself, and (ii) wh' ether the l i

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4 statute at issue [is] the kind that (creates]

enforceable ' rights' under S 1983." Id. ,

Maine v. Thiboutot provides an example of the type of statute found to give rise to rights under 5 1983. In Thiboutot, the Maine Department of Health and Human Services interpreted 42 U.S.C. S 602(a)(7) to require payment of Aid to Families with Dependent Children to Lionel Thiboutot based on his three children from his first marriage. Thiboutot did not receive any aid for his five children from his second

, marriage even though he was legally obligated to support them. Maine v. Thiboutot, 448 U.S. at 3.. The court found that Thiboutot did in f act have a 5,: 1983 claim under the Social Security Act. Id. at 4-8.

Middlesex County, on the otDer hand, provides an example of a statute that does not give rise to rights under S 1983. 453 U.S. 1 (1981). In Middlesex County, the court found that the Federal Water Pollution Control Act and the Marine Protection, Research, and Sanctuaries Act were comprehensive pieces of legislation and that Congress did not intend them to create a right of action under 5 1983. As a result,

.the shellfish harvesters who brought the action were

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not afforded rights under S 1983. Id. at 20-21.

Similarly, the Ninth Circuit held in First National Bank of Omaha v. Marquette National Bank that allowing a cause of action under 5 1983 "for interference with rights pursuant to the National Bank Act, would represent a dramatic and unwarranted extension of the Civil Rights Act. We do not believe that such a departure is mandated by the opinion in Thiboutot or that such a cause of action was within the intent of the Congress that enacted the civil rights statutes."

636 F.2d 195, 199 (1980).

The situation presented by the facts of this

'~

case is more similar to that in Middlesex and First National Bank than in Thiboutot.

The AEA,is a ' complex,

• • comprehensive piece of legislation which does not provide for private causes of' action. LILCO's S 1983 claim, ther,efore, may not be based on an alleged violation of the AEA.

LILCO also alleges that it is entitled to relief under S 1983 because defendants have violated

, its right to property in the Shoreham facility. The problem with this theory is that a taking of Shoreham has not occurred; the question of whether or not l

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Shoreham will be granted an operating license is

. currently before the NRC. See Long Island Lighting Co.

v. County of Suffolk, No. CV-84-2698 (E.D. N.Y. March 13, 1984). At this point in time LILCO has lost only the support of the County before the NRC, which, until 1982, LILCO had expected to receive. Such an J

expectation of support before a federal regulatory agency does not constitute a property right.

LILCO argues that its investment-backed reasonable expectation of County support is sufficient to establish a property interest under Ruckelshaus v.

! Monsanto Co. U.S. , 104 S.Ct. 2862 (1984); ,

l Monsanto, however, merely held that an intangible bundle of rights, such as exists in a trade secret, may constitute property under the fifth amendment. Id. at 2871-79. Plaintiff in effect asks this court to go several ste,ps further than Monsanto in order to hold that an intangible expectancy of a future occurrence constitutes property under the Constitution.

LILCO's argument on this point is similar to that of the plaintiff in Beacon Syracuse As'sociates v.

' In City of Syracuse, 560 F.Supp. 188'(N.D.N.Y. 1983).

Beacon, the plaintiff brought a 5 1983 claim because

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the city had instituted a new urban renewal plan .

Id.

at 191-92.

Plaintiff alleged that the new plan violated his constitutional property rights by frustrating his " investment-backed expectations " .

Id.

at 197.

The Beacon court found that plaintiff had "no property interest entitled to due process protection " .

Id. at 198. This court reaches the same conclusio n as to LILCO in this case.

LILCO next alleges that it has been denied a protected liberty interest without due process of law .

Producing nuclear power, LILCO argues, is a legal activity encouraged by federal policy. LILCO may dot bedeniedtherighttoengageinsuchalegalactidity without due process.

See Schware v. Board of'Bar .

_ Examiners, 353 U.S. 232 (1957)

(right to practice law);

Freitag v. Carter, 489 F.2d 1377 (7th Cir. 1973) (right to obta'in taxicab license) .

One immediately apparent distinction between i

most of the cases relied on by LILCO and the facts in 1 TI '~ 2 -- this case license. is that defendants 'have not denied LILC0 a ,

If LILCO is denied a license, it will be by the NRC.

Under these circumstances, it would seem t' whatever process is due in the licensing process l' from the NRC and not from the defendants.

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At least one case, however, does stand for the proposition that it may be a denial of liberty for a government entity .to merely influence a licensing process. In Flores v. Pierce, the City of Calistoga, California, filed official protests with the , State Department of Alcohol Beverage Control in order to prevent the issuance of a liquor license to certain individuals. 617 F.2d 1386, 1388 (9th Cir.), cert.

denied, 449 U.S. 875 (1980). The City acted as it did in order to discrim'inate against the applicants as Mexican-Americans. Id. The evidence in the case t

established that the City's protests were intended to I -

delay, and did in f act delay, the issuance of a . license based on the plaintif f 's race and national origin. Id.

at 1391.

The problem with applying Flores to the

]

instant situation is that Flores involved a plaintiff who was a member of a suspect classification.

Nevertheless, the court accepts Flores as precedent for i

the general proposition that mere interference in a licensing process may under some circumstances violate a constitutionally protected liberty interest.

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LILCO's argument that its liberty interest 1 l

, has been violated is closely related to its final argument that it has been denied equal protection under the. law. LILCO contends that other entities within the County are not denied County services, such as those of l the police and fire departments. Because it is being

, treated differently from other entities similarly situated, LILCO argues that defendants have violated the Constitution's equal protection requirement. See Memorial Hospital v. Maricopa, 415 U.S. 250 (1974 )

i (denial of medical services to indigent people who exercise right to travel); Thompson v. New York!.487 F.

Supp. 213, 216-17,(N.D.N.Y. 1979) (denial of police and fire ser. vices to American Indians).

Unlike the plaintiff s in Memorial Hospital, Thompson and Flores, LILCO is not a member of a protected class. LILCO's claim that defendants' actions violated its liberty and equal protection rights can only succeed if the County has no rational

. - - -_ - , , , , , , basis for opposing Shoreham's licensing. .See, e.g.,

l Schware, 353 U.S. at 238-39.

i I

The rational basis standard is not a difficult standard for the County to satisfy. All that I

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needs to appear is that the County acted in furtherance of a legitimate . objective and its acts were rationally  !

con'nected to that end. Id. In applying the rational basis test this court may not apply its own judgment as to whether or not the ' County acted in the best' interests of its residents. This court is not a super-legislature which approves 'or disapproves of local government policy. If any state of facts justifies the County's actions, then the County has withstood the rationality standard.

LILCO argues that because the County may not regulate nuclear safety and health that it may not' claim the health and safety of its residents as a :

legitimate objective.

While it is true that the County may not regulate nuclear safety, it does not follow that the County may not try to influence those who do regulate nuclear safety. The County's actions may, therefore, be directed toward the objective of protecting its residents.

LILCO further argues that if the County were ,

truly interested in the health and safety of its residents, then it would try to develop an emergency evacuation plan.

The County, however, through its 4

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elected legislators, has taken the position that a satisf actory evacuation plan cannot be fashioned and that it can best provide for the health and safety of its residents by refusing to cooperate with LILCO in an

{ attempt to convince the NRC otherwise. This court may

. not second guess the wisdom of that decision.

1 l As the County has not acted without a rational connection to a legitimate interest, LILCO's equal protection and liberty arguments must f ail.

LILCO's 5 1983 claim is dismissed.

. CONCLUSION i

For the reasons stated above, defendahts'

motion to dismiss pursuant to F.R. Civ. P. 12(bb(1) and 12.( b ) ( 6 )- is granted. The clerk is directed to estter judgment accordingly.

j SO ORDERED.. .

Dated: Unibndale, New York I March 18, 1985. I

.,-- tY. i r1m fr La.J I

Frank X. Altimari U.S. District Judge t

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FOOTNOTES 1

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Defendants con' tend that this teaching from Pacific Gas, which was not necessary to the court's determination in that case, does not survive the court's subsequent decision in Silkwood. See Silkwood, 104 S.

Ct. at 627-28 (Blackmun, J., dissenting) (Pacific Gas j

incompatible with Silkwood). Because the defendants 4 did not in fact regulate nuclear safety or create a moratorium on plant construction, it is not now necessary to resolve any tension between the two cases.

I 2 The Atomic Energy Commission was the predecessor of .

what is now the NRC.

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