Record and brief — Pacific Legal Foundation v. State Energy Resources Conservation & Development Commission

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81- 1 944 Supreme Court, U.S.

FILED

a | , APR 80 We

ALEXANOER L. STEVAS

In THE CLERK

Supreme Court of the United States

OctTosBer TERM, 1981

PacirFic LEGAL FOUNDATION, ef al.,

Petitioners,

Vv.

STATE ENERGY RESOURCES CONSERVATION &

DEVELOPMENT COMMISSION, ef al,

Respondents.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

RONALD A. ZUMBRUN

Rosin L. Rivett

Pacific Legal Foundation

455 Capitol Mall, Suite 600

Sacramento, California 95814

Telephone: (916) 444-0154

RAYMOND M. MOMBOISSE

SAM KAZMAN

Pacific Legal Foundation

1990 M Street, N.W., Suite 550

Washington, D.C. 20036

Telephone: (202) 466-2686

Attorneys for Petitioners

QUESTIONS PRESENTED FOR REVIEW

1. Whether federal regulation of nuclear energy and

federal policy to encourage its development and use, under the

Atomic Energy Act, 42 U.S.C. §§ 2011-2281, preempt Califor-

nia’s prohibition on the construction of new nuclear power

plants.

2. Whether an individual whose job at a proposed nuclear

power plant was destroyed by California’s nuclear moratorium

has standing to challenge the validity of that law.

PARTIES BELOW

The parties in the action below were the following:

1. plaintiffs-appellees—Pacific Legal Foundation, a

nonprofit California corporation;* the San Diego Coalition, a

nonprofit California corporation; the San Diego Section of the

American Nuclear Society, a New York corporation; the San

Diego County Building and Construction Trades Council, a

labor organization; and Robert C. Thornberry, an individual;

2. defendants-appellants—the California State Energy

Resources Conservation and Development Commission, a state

agency; and Emilio E. Varanini, III, C. Suzanne Reed,

Ronald D. Doctor, Russell L. Schweickart, and James L.

Walker, in their capacities as members of the Commission;

3. defendants-intervenors—the Natural Resources Defense

Council, Inc., the Environmental Defense Fund, Inc., the Sierra

Club, and Californians for Nuclear Safeguards.

In the Court of Appeals for the Ninth Circuit, this action

was consolidated with the case of Pacific Gas & Electric Co. v.

State Energy Resources Conservation & Development Commis-

sion. The plaintiffs-appellees in that action were Pacific Gas

and Electric Company and Southern California Edison Com-

pany, and they have filed a separate petition for certiorari with

this Court. The defendant and defendant-intervenor parties in

that action were the same as those in the instant case.

* Pacific Legz! Foundation has no parent companies or subsidiaries. It is

affiliated with the College of Public Interest Law, a fellowship program for

law school graduates.

TABLE OF CONTENTS

CONSTITUTIONAL AND STATUTORY PROVI-

Ee TM ccinisstnccsnsoscssnnnnessensesssnestentuinsinntanes

BREET CO

B. History of the Proceedings Below....................:-00++

REASONS FOR GRANTING THE WRIT....................

I. THE NINTH CIRCUIT’S DECISION UP-

HOLDING CALIFORNIA’S NUCLEAR

MORATORIUM CONFLICTS WITH THE

RULINGS OF THIS COURT AND OF OTH-

ER CIRCUIT COURTS ON FEDERAL PRE-

EMPTION OF NUCLEAR ENERGY REGU-

LATION AND ALLOWS THE OBSTRUC-

TION OF FEDERAL POLICY TO PROMOTE

THE DEVELOPMENT AND USE OF NU-

ee a liaesictrinisnnnssnsnvinnsntetsocnssinascnennnsnanesese

A. The Ninth Circuit Ignored the Supreme

Court’s Explicit Ruling on the In-

conclusiveness of Legislative Committee

Reports When It Ruled that California’s

Nuclear Moratorium Is Not Aimed at the

Prohibited Area of Safety Regulation.........

B. Under Principles Set Forth by the Su-

ee Court, the Federal Government's

cisions Concerning Nuclear Waste Dis-

posal Preempt Any Contrary Decision by

SII dccshtstsineaserssessicctceneensitetimanmneinees

C. California’s Nuclear Moratorium Ob-

structs Federal Policy on an Issue of Na-

i cetsccnscnesncscntssscntndiatanitsndenes

Il. CONTRARY TO THE NINTH CIRCUIT,

THE DESTRUCTION OF AN _ INDIVID-

UAL’S JOB BY CALIFORNIA’S NUCLEAR

MORATORIUM IS A SUFFICIENT BASIS

ee STANDING TO CHALLENGE THAT

FE siniasncccsesnnintibnannsneinesnisctnunenasetenniineennnnnnien

Ill. THIS CASE IS APPROPRIATE FOR RE-

VIEW DESPITE THE FACT THAT IT IN-

VOLVES A REVERSAL OF SUMMARY

FESO teccrernncitercssttanannemessrmanentnnninnninmnasiaee

«EIS ESIAE SESE ASSO ona nee

APPENDIX

Opinion of the District Court .............ccccccseesseeeeeeenees

Order of the Court of Appeals Denying Rehearing..

Annotations to California Public Resources Code

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I Wiiteiiteniticnitieiscsctnincnnnsinnensbiniaiintiinns

TABLE OF AUTHORITIES CITED

CASES

Carson v. Domestic and Foreign Commerce Corp., 337

SR SET ITI onecdaninsaptiaaettindninceteninndpespiiiieanidadiediiiatn

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)...

Duke Power Co. v. Carolina Environmental Study

Gree, Bae.. GIB US. FOC TG T6 ) ncvececceccosesvccccssescevensssnene

General Electric Co. v. Fahner, Nos. 80-C-6835, 81-C-

461 (N.D. Ill. Oct. 12, 1981), appeal docketed sub

nom. Illinois v. General Electric Co., Nos. 81-2768,

eee Fe te PEs Gi, WIE D ececccctecesssccsscsocenssinnnentns

Gillespie v. United States Steel Corp., 379 US. 148

AIST ctabiienenieseasniticsistbedeniaisaneeiassemnnnsianienntéeneeemmneineate

Hines v. Davidowitz, 312 U.S. 52 (1941) .............cceeee

Land v. Dollar, 330 U.S. 731 (1947) .....ccccccccccceeeeeeeeees

Meyer v. Nebraska, 262 U.S. 290 (1923) ......ccccccccceeeeee

Natural Resources Defense Council, Inc. v. Nuclear

—* Commission, 582 F.2d 166 (2d Cir.

1978)

Northern States Power Co. v. Minnesota, 447 F.2d

eae 8th Cir. 1971), aff'd mem., 405 U.S. 1035

( is ciatheaniabddeassatbatidetisbibnemnnenitcmngeemenmnindieennnes

Gar S. Ga, GE UE, Be 0 FFG Pecccccccccccccccscctenssssensseeees

Perez v. Campbell, 402 U.S. 637 (1971) .....cccccccceeeeeeeee

Peterson v. City of Greenville, 373 U.S. 244 ( 1963).....

Power Reactor Development Co. vy. International

Union of Electrical, Radio & Machine Workers,

fg | GF, | ERE eeeneorenere

Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) .....

Regents of University of California v. Bakke, 438 U.S.

I TUTTI iiss lantiarieidahcaiacicinaniaibieanianiainbmnaemnansniiinen

Silkwood v. Kerr-McGee Corp., No. 79-1894 (10th

Ss ls WII idnraistuniienicensecnsmniiiecnsasigmanieniinete

Train v. Colorado Public Interest Research Group,

ES EERE Care cme eee

United States v. City of New York, 463 F. Supp. 604

a 6 SP ihaecaicnserdnniemnsnenasesenianssenieinantiinnds

United States v. General Motors Corp., 323 U.S. 373

SUIT sciateini hears cuanmaasitnechasestbectgunittnedaadibenmbies

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977) ...cccccceeceeeee

Washington State Building & Construction Trades

Council v. Spellman, 518 F. Supp. 928 (E.D.

Wash. 1981), appeal docketed, No. 81-3453 (9th

nee

UNITED STATES CONSTITUTION

RS EE LT Te

EE STREP a Oe Ce

Page

12-13

8-9

17-18

11-12,14

FEDERAL STATUTES

a a cenndetleaaicitihs dtielnencintinateies igaiaiai ha oleae

Atomic Energy Act of 1954, Pub. L. No. 83-703, 68

Stat. 919, 42 U.S.C. $$ 2011-2282 .0.0...........ccccceseese

Price-Anderson Act, 42 U.S.C., § 2210..........cccccsesceseees

Energy Reorganization Act of 1974, 42 U.S.C.

a a eae ietnrsatasntidanteipseataiidennmnanitieisnidinnasani

STATE STATUTES AND PROPOSITIONS

California Public Resources Code

|” ERITREA Sc: ae

a eee

a ol

Warren-Alquist State Energy Resources Con-

servation and Development Act, Cal. Pub. Res.

SS RoE ee

aes Nuclear Safeguards Initiative ( Proposition

i icciesischicisheenniiviietetaesiededenilteldehaiaesietaateenasiandiicnhniieeiabiitiecabeainadaihs

MISCELLANEOUS

17 Weekly Comp. of Pres. Docs. 1101 (Oct. 8, 1981).

Passim

No.

IN THE

Supreme Court of the United States

OcTOBER TERM, 1981

PaciFic LEGAL FOUNDATION, ef al.,

Petitioners,

Vv.

STATE ENERGY RESOURCES CONSERVATION &

DEVELOPMENT COMMISSION, ef ai,

Respondents.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

Petitioners Pacific Legal Foundation (PLF), the San

Diego Coalition, the San Diego Section of the American

Nuclear Society, the San Diego County Building and Construc-

tion Trades Council, and Robert C. Thornberry respectfully

request that this Court issue a writ of certiorari to review the

opinion and judgment of the United States Court of Appeals for

the Ninth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals in this case, and in the

consolidated action brought by the Pacific Gas and Electric

Company (the PG&E case), is officially reported as Pacific

Legal Foundation v. State Energy Resources Conservation &

Development Commission, 659 F.2d 903 (9th Cir. 1981). The

Ninth Circuit’s opinion is reprinted in the appendix to the

petition for certiorari which has been separately filed by PG&E

(PG&E App.). The PG&E appendix is incorporated by

reference into this petition.

The opinion of the District Court in the PLF case is

officially reported at 472 F. Supp. 191 (S.D. Cal. 1979) and is

reprinted in the appendix to this petition. PLF App. |. The

District Court opinion in the related PG&E case is officially

reported at 489 F. Supp. 699 (E.D. Cal. 1980) and is reprinted

in the PG&E Appendix.

JURISDICTION

The opinion of the Court of Appeals was issued on

October 7, 1981. No separate judgment was issued. A timely

motion for rehearing was denied on January 20, 1982. PLF

App. 19. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the question of whether federal law and

policy on nuclear energy preempt California’s across-the-board

prohibition on the construction of new nuclear plants. Califor-

nia’s nuclear moratorium is contained in Section 25524.2 of the

California Public Resources Code. The federal law against

which that moratorium must be judged is the Atomic Energy

Act, 42 U.S.C. §§ 2011-2282. These laws are set forth in the

PG&E Appendix and are hereb~’ incorporated by reference.

The governing provision of the United States Constitution

on the issue of preemption is the supremacy clause:

“This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof; and

all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.”

Art. VI, cl. 2.

Also at issue in this case is the question of whether a

nuclear engineer whose job was destroyed by the moratorium

has standing, on that basis, to challenge its validity. The

governing provision of the Constitution regarding this question

is the “case and controversy” clause of article III:

“The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution, the

Laws of the United States and Treaties made, or

which shall be made, under their Authority... .”

Art. III, § 2.

STATEMENT OF THE CASE

A. Introduction

In the Atomic Energy Act of 1954, Pub. L. No. 83-703,

68 Stat. 919, Congress determined to allow private industry to

Participate in the field of nuclear energy as a means of

encouraging the development and utilization of that energy

source for peaceful purposes. In 1976, California enacted a

moratorium on the construction of new nuclear plants in the

state. This moratorium was one of three amendments which

were added to the state’s Public Resources Code and which are

known collectively as the California Nuclear Laws. The

Nuclear Laws impose a number of preconditions to the con-

struction of any new nuclear plants within California. New

Section 25524.1 prohibits the construction of any new nuclear

plant which requires fuel rod reprocessing until it is found that

there is a federally approved technology for reprocessing or

storing spent fuel rods. Section 25524.2, the nuclear morato-

rium provision, prohibits the construction of new plants absent

a finding that the federal government has approved a method

for disposing of high-level nuclear wastes. Finally, Section

25524.3 forbids the construction of new plants until the com-

pletion of a feasibility study on placing such plants either

underground or surrounded by earthen berms. PG&E App.

207-17.

The California Nuclear Laws are implemented by the

State Energy Resources Conservation and Developme™t Com-

mission (State Energy Commisssion ), which was established in

1974 by the Warren-Alquist State Energy Resources Con-

servation and Development Act, Cal. Pub. Res. Code §§ 25000,

et seq. PG&E App. 193. It is the responsibility of the State

Energy Commission to make the findings required by the

California Nuclear Laws. These findings can be disapproved

by the California Legislature, but otherwise they are a pre-

requisite to the certification of any new nuclear plant within the

state. No power generating facility can be constructed in

California without such certification. Cal. Pub. Res. Code

§ 25500, PG&E App. 194-95.

The California Nuclear Laws were considered and enacted

during the pendency of the public referendum measure known

as the California Nuclear Safeguards Initiative, or Proposition

15 (reprinted at PLF App. 22). PLF v. State Energy Commis-

sion, 659 F.2d at 924, PG&E App. 37. Proposition 15 proposed

a number of prerequisites for the certification of new nuclear

plants and for the continued operation of existing nuclear

plants. It would have required the removal of the limits

imposed by the federal government on the liability of plant

operators for nuclear accidents under the Price-Anderson Act,

42 U.S.C. § 2210. It also would have required numerous safety

assurances regarding nuclear plant operation. In the words of

the State Energy Commission, Proposition 15 “would have

simply shut down all existing nuclear power plants and flatly

prohibited the construction of new ones.” State Energy Com-

mission, Appellate Brief at 9; see also 659 F.2d at 924, PG&E

App. 37-39.

The California Nuclear Laws were enacted on June 3,

1976. Five days later, Proposition 15 was rejected by the voters

of California by a 2-1 margin. PLF, Appellate Brief at 5S.

On January 25, 1978, the State Energy Commission issued

its finding that there was no federally approved technology for

the disposal of high-level nuclear wastes. PLF v. State Energy

Commission, 472 F. Supp. at 194. The Commission therefore

could not make the affirmative finding on waste disposal

required by the California Nuclear Laws.

Two days later, on January 27, 1978, the Board of

Directors of the San Diego Gas and Electric Company resolved

that it would attempt to obtain an exemption from the Califor-

nia Nuclear Laws for a proposed plant known as the Sundesert

Nuclear Project. Excerpt of Record (ER) at 437-38, PLF v.

State Energy Commission (9th Cir. ).

On May 3, 1978, the Board of Directors gave up its

attempt. Having failed to obtain an exemption for the Sunde-

sert project, it decided to “[i]mmediately stop any further

Sundesert expenditures” and “[p]romptly terminate all Sunde-

sert contracts ....” ER at 440.

Robert C. Thornberry is a nuclear engineer who was

employed by San Diego Gas and Electric on the Sundesert

project. On May 31, 1978, four weeks after the Board of

Directors decided to terminate Sundesert, Robert Thornberry

lost his job due to a reduction in force at the project. ER at 376,

442; 659 F.2d at 909-10.

B. History of the Proceedings Below

The PLF action challenging the California Nuclear Laws

was filed four months after Robert Thornberry lost his job. The

action was brought in federal district court on behalf of

Mr. Thornberry and four organizations. The basis for federal

jurisdiction was 28 U.S.C. §§ 1331(a) (federal question) and

1337 (regulation of commerce ).

The District Court entered its judgment on March 6, 1979,

after hearing motions for summary judgment and dismissal.

The court ruled that only Robert Thornberry had standing to

challenge the California Nuclear Laws, and that only

Section 25524.2, the moratorium provision, was ripe for review.

That provision was found unconstitutional on the ground of

federal preemption. The court ruled that it invaded the area of

radiation hazard control, which Congress had foreclosed to

state legislation, and that it frustrated the congressional objec-

tive of encouraging nuclear energy development by prohibiting

new nuclear plants. The court refused to accept the State

Energy Commission’s claim that, because the Nuclear Laws

were allegedly enacted for economic purposes and not for

reasons of safety, they were therefore valid. 472 F. Supp. at

198, PLF App. 12.

Thirteen months after the judgment in the PLF case,

another district court issued a similar, though broader, ruling in

a separate action brought by PG&E. That court found that all

three of the California Nuclear Laws were federally preempted,

as well as several other provisions of the California Public

Resources Code.

The PLF and PG&E cases were consolidated on appeal

before the Ninth Circuit. On October 7, 1981, a panel of that

court ruled that only two provisions of the Public Resources

Code were ripe for review—the nuclear moratorium, and

another section requiring that all power plant proposals contain

at least three alternate sites. The court held both provisions to

be valid, accepting the State Energy Commission’s claim that

the moratorium was “directed toward purposes other than

protection against radiation hazards.” 659 F.2d at 925, PG&E

App. 40. The court also found that there was no frustration of

federal policy by the state laws, despite their effect of blocking

the construction of any new nuclear plants.

On the question of standing, the court ruled that, even if

Thornberry had lost his job as a result of the nuclear morato-

rium, this “would not suffice to give Thornberry standing”—he

would still have to prove that he would get his job back were

the moratorium to be invalidated. 659 F.2d at 913, PG&E

App. 14. The court reversed the judgments in both cases, and

remanded the PLF case for further proceedings. On January

20, 1982, timely petitions for rehearing in both cases were

denied, leading to the petitions for certiorari which have been

separately filed in both this and the PG&E case.

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals effectively rewrites

the law of preemption on the issue of state enactments which

conflict with federal policy. Despite the fact that Congress has

determined to encourage the development and use of nuclear

energy as a matter of national policy, the court’s ruling opens

the door for any state to block categorically the deveiopment of

this energy source. Such a result would be of national

consequence at any time; because of the energy shortages of the

past decade, the present importance of this issue cannot be

overstated. The decision itself conflicts with legal principles

established by this Court regarding the preemptive scope of the

Atomic Energy Act and the manner in which federal-state

conflicts are to be analyzed and resolved. For these reasons,

this petition for certiorari should be granted.

THE NINTH CIRCUIT'S DECISION UPHOLDING

CALIFORNIA’S NUCLEAR MORATORIUM CONFLICTS

WITH TH& RULINGS OF THIS COURT AND OF OTHER

CIRCUIT COURTS ON FEDERAL PREEMPTION OF

NUCLEAR ENERGY REGULATION AND ALLOWS THE

OBSTRUCTION OF FEDERAL POLICY TO PROMOTE

THE DEVELOPMENT AND USE OF NUCLEAR POWER

The Atomic Energy Act states, as congressional policy, that

the “development, utilization, and control of atomic energy for

military and for all other purposes are vital to the common

defense and security.” 42 U.S.C. §2012(a). It declares that

one of its purposes is

“to encourage widespread participation in the devel-

opment and utilization of atomic energy for peaceful

purposes to the maximum extent consistent with the

common defense and security and with the health

and safety of the public....” Jd. at § 2013(d).

It expressly reserves the regulation of nuclear plant con-

struction and operation to the federal government, and it

explicitly prohibits state regulation of such plants with respect

to radiation hazards. Under 42 U.S.C. § 2021(c)(1), the

“construction and operation of any [nuclear] production or

utilization facility” is and must remain the responsibility of the

Nuclear Regulatory Commission ( NRC) (formerly the Atomic

Energy Commission ( AEC); see 659 F.2d at 920 n.25, PG&E

App. 29 n.25). Unlike other subject areas, for which responsi-

bility may be transferred to states pursuant to 42 U.S.C.

§ 2021(b), this is an area for which federal responsibility

cannot be delegated. Similarly, while 42 U.S.C. § 2021(k)

preserves state regulatory authority, it does so only for those

regulations which are “for purposes other than protection

against radiation hazards.” (Emphasis added. )

The preemptive scope of these provisions was extensively

analyzed in Northern States Power Co. v. Minnesota, 447 F.2d

1143 (8th Cir. 1971), aff'd mem., 405 U.S. 1035 (1972).1 The

court there found that the legislative history

“makes it clear that Congress intended to pre-empt

the field of the licensing and regulation of nuclear

reactors to the exclusion of the states and that it did

not intend to provide for dual regulation of radiation

hazards, even as to those activities which could be

turned over to the states.” 447 F.2d at 1151.

The court concluded that “the federal government has

exclusive authority under the doctrine of pre-emption to regu-

late the construction and operation of nuclear power

plants....” Jd. at 1154.

The Northern States holding has since been applied by a

number of courts. In Train v. Colorado Public Interest Re-

search Group, Inc., this Court noted that

“state regulatory programs must be compatible with

the AEC’s regulatory program, § 2021(d)(2), and

States are precluded from playing any role in several

significant areas of regulation....” 426 US. 1, 16

n.12 (1976), citing Northern States.

In Silkwood v. Kerr-McGee Corp., the Tenth Circuit stated

that

“w]e cannot read [Northern States] and Train

other than as requiring us to hold invalid any state

‘The summary affirmance of Northern States by this Court was a

decision on the merits and is binding on lower federal courts. Hicks v.

Miranda, 422 U.S. 332, 344-45 (1975).

action that competes substantially with the AEC

(NRC) in its regulation of radiation hazards associ-

ated with plants handling nuclear material.” No. 79-

1894 (10th Cir. Dec. 11, 1981), slip op. at 29

(reversing an award of punitive damages against a

nuclear plant).

Several district courts have similarly invalidated state and

local laws on the basis of Northern States. Restrictions on the

importation of out-of-state nuclear waste were stricken in

General Electric Co. v. Fahner, Nos. 80-C-6835, 81-C-461

(N.D. Ill. Oct. 12, 1981), appeal docketed sub nom. Illinois v.

General Electric Co., Nos. 81-2768, 81-2778 (7th Cir. Nov. 6,

1981), and Washington State Building & Construction Trades

Council v. Spellman, 518 F. Supp. 928 (E.D. Wash. 1981),

appeal docketed, No. 81-3453 (9th Cir. July 27, 1981). In

United States v. City of New York, 463 F. Supp. 604 (S.D.N.Y.

1978), a municipal requirement of health and safety certificates

for nuclear facilities was likewise invalidated.

The Ninth Circuit stated that it was following the Northern

States decision in upholding California’s nuclear moratorium.

According to the court, this across-the-board prohibition of new

nuclear plants is not a regulation aimed at safety hazards, does

not intrude upon an area of federal control, and does not

frustrate congressional policy with respect to nuclear energy.

Each of these conclusions is inaccurate and obscures the actual

impact of the moratorium. More importantly, the court arrived

at these conclusions in a manner contrary to the approach

which this Court has set forth for analyzing preemption issues.

A. The Ninth Circuit Ignored the Supreme Court’s Explicit

Ruling on the Inconclusiveness of Legislative Committee

Reports When It Ruled that California’s Nuclear Morato-

rium Is Not Aimed at the Prohibited Area of Safety

Regulation

The Ninth Circuit upheld California’s nuclear moratorium

on the ground that its purpose is not safety but economics. This

holding is contradicted by the very history of the moratorium.

Furthermore, the court reached it by giving conclusive weight

to the report of a state legislative committee—an approach

which this Court expressly rejected as “aberrational” in Perez v.

Cambell, 402 U.S. 637, 651 (1971).

As explained at page 4, supra, the California Nuclear Laws

were considered and enacted while Proposition 15 was before

the voters of California. The relationship between the two has

never been questioned. The California Assembly Committee

on Resources, Land Use, and Energy, which drafted the laws,

stated that this legislation was “designed to achieve in part and

to supplement the goals of the Initiative [Proposition 15].”

ER at 212. Because of the similar purposes of Proposition 15

and the Nuclear Laws, the state legislature provided that the

laws “shall not become operative if Proposition 15

...is adopted.” Historical Note to Section 25524.2, PLF App.

21. The State Energy Commission even claimed that the

Nuclear Laws were responsible for the defeat of Proposition 15

by making it unnecessary:

“Forestalling voter approval of a ballot initiative that

would have simply shut down all existing nuclear

power plants and flatly prohibited the construction of

new ones, the legislature therefore enacted three

laws, including the nuclear waste-disposal

law .... ” State Energy Commission, Appellate

Brief at 9-10 ( footnote omitted ).

The Ninth Circuit accordingly characterized the Nuclear

Laws as “an alternative to... Proposition 15.” 659 F.2d at 924,

PG&E App. 37. Yet it proceeded to construct a dichotomy

between their purposes. According to the court, there were “a

number of perceived problems with nuclear power, some

safety-related and some economic.” Jd., PG&E App. 38. The

economic issues were allegedly “stipulated” by industry and

government, while the safety issues were disputed. Jd. Despite

the court’s recognition of these problems, the court found that

the initiative and the Nuclear Laws did not deal with them in

similar fashions. According to the court, “Proposition 15 was

designed to deal with both types of problems associated with

nuclear waste disposal.” Jd, PG&E App. 39. On the other

hand, the nuclear moratorium

“was intended to deal only with the ‘stipulated’

problem caused by the lack of any approved method

of waste disposal. The [state legislative] committee

explained that its bills were ‘designed to provide a

pause in the deployment of nuclear power plants

until [certain] problems which may ‘clog’ the nuclear

fuel cycle are resolved.’ ... One of the ‘major dis-

tinguishing features’ differentiating Proposition 15

and the committee bills was that ‘[w]aste disposal

safety is not directly addressed by the bills, which ask

only that a method be chosen and accepted by the

federal government.’ ” 659 F.2d at 925, PG&E App.

39-40 (emphasis in original, citations omitted ).

As this passage indicates, the court had one and only one

basis for its conclusion—the report of the California Assembly

Committee on Resources, Land Use, and Energy.? The Su-

preme Court has made it clear that, in analyzing a preemption

problem, such a legislative document must be viewed critically;

otherwise, it would be all too easy for a state committee to save

an invalid law by means of a carefully worded report:

“We can no longer adhere to the aberrational

doctrine . . . that state law may frustrate the operation

of federal law as long as the state legislature in

Passing its law had some purpose in mind other than

one of frustration. Apart from the fact that it is at

odds with the approach taken in nearly all our

Supremacy Clause cases, such a doctrine would enable

state legislatures to nullify nearly all unwanted federal

legislation by simply publishing a legislative committee

report articulating some state interest or policy---other

than frustration of the federal objective—that would

be tangentially furthered by the proposed state law.

... [A]ny state legislation which frustrates the full

effectiveness of federal law is rendered invalid by the

Supremacy Clause.” Perez v. Campbell, 402 U.S. at

651-52 (emphasis added ).

The District Court followed this approach, rejecting the

premise

“that any sort of regulation at all is permissible as

long as a state legislature is willing and ingenious

2 The court cites this document nearly a dozen times in the course of

discussing the legislative purpose of the Nuclear Laws, and relies on it

exclusively in this regard. See 659 F.2d at 924-25, PG&E App. 37-40.

enough to conjure up a legislative purpose other than

radiation control.” 472 F. Supp. at 198, PLF App. 12.

Yet Perez goes totally unmentioned in the Ninth Circuit’s

opinion. There is not even a suggestion in the appellate

decision that it might be appropriate to give this committee

report less chan conclusive weight, despite the clear likelihood

that the authors of that report were aware of the potential

conflict with federal law.

The Ninth Circuit admitted that Proposition 15 was at least

in part a safety measure. 659 F.2d at 924, PG&E App. 37-38.

It admitted that the Nuclear Laws were “enacted as an

alternative” to that measure. Jd, PG&E App. 37. Yet it

nonetheless proceeded to find that the Nuclear Laws were not

safety related, on the basis of an elaborate construct of “stipu-

lated” and non-stipulated issues set forth in the report of a state

assembly committee. This approach is contrary to common

sense, and it was explicitly rejected by this Court in Perez. As

in the case of the Emperor’s New Clothes, the committee’s

attempt to bedeck a statute with secondary purposes should not

succeed in hiding what is underneath.

B. Under Principles Set Forth by the Supreme Court, the

Federal Government’s Decisions Concerning Nuclear

Waste Disposal Preempt Any Contrary Decision by Cali-

fornia

Unlike California, the federal government has, through the

NRC, proceeded with the development of nuclear energy

despite the fact that no method for the permanent disposal of

nuclear wastes has yet been decided upon. As the Second

Circuit stated in Natural Resources Defense Council, Inc. v.

NRC,

3 The assembly committee recognized that there were serious questions

regarding the constitutionality of Proposition 15 under the supremacy clause,

and extensively discussed this issue in its report. ER at 182-89. Once the

Nuclear Laws were enacted, both the California Legislative Counsel and the

State Attorney General concluded that these laws were federally preempted.

Exhibits A and B to PLF Memorandum in Opposition to Request for

Continuance of Summary Judgment Hearing (S.D. Cal. Nov. 8, 1978); see

also PLF App. 21.

“ ‘it is clear that from the very beginnings of com-

mercial nuclear power the Congress was aware of the

absence of a permanent waste disposal facility, but

decided to proceed with power plant licensing.’”

582 F.2d 166, 170 (2d Cir. 1978) (citation omitted ).

That court found that “Congress did not intend such a

condition” as a prerequisite to licensing. 582 F.2d at 171.

“[1]f there were any doubt over the intent of Con-

gress... not to require a moratorium on nuclear

power reactor licensing pending an affirmative

determination [on permanent waste disposal], we

are persuaded that the matter was laid to rest by

enactment of the Energy Reorganization Act of

1974... 42 U.S.C. §§ 5801 et seg. Therein, Congress

expressly recognized and impliedly approved NRC’s

regulatory scheme and practice. ...” 582 F.2d at

174.4

Thus, neither the NRC nor Congress has chosen to sus-

pend the licensing of new nuclear plants pending the final

approval of a waste disposal technology. This Court has made

it clear that such a decision preempts contrary action by a state.

“*(Whyhere failure of... federal officials affirma-

tively to exercise their full authority takes on the

4 Surprisingly, the Ninth Circuit cited the 1974 Energy Reorganization

Act in support of its claim that federal policy regarding nuclear energy had

changed. 659 F.2d at 926-27, PG&E App. 43-44.

The Supreme Court has itself noted the special relevance of Congress's

extensive involvement in overseeing the administrative regulation of nuclear

energy.

“It may often be shaky business to attribute significance to the

inaction of Congress, but under these circumstances, and consid-

ering especially the peculiar responsibility and place of the Joint

Committee on Atomic Energy in the statutory scheme, we think it

fair to read this history as a de facto acquiescence in and

ratification of the [AEC's] licensing procedure by Congress.”

Power Reactor Dev. Co. v. International Union of Electrical,

Radio & Machine Workers, 367 U.S. 396, 409 (1961).

(The Joint Committee was abolished in 1977. Its functions are now carried

out by separate House and Senate committees. 42 U.S.C. §§ 2258-2259.) The

Second Circuit quoted this passage in its opinion in Natural Resources

Defense Council, 582 F.2d at 172.

character of a ruling that no such regulation is

appropriate or approved pursuant to the policy of the

statute,” States are not permitted to use their police

power to enact such a regulation.” Ray v. Aflantic

Richfield Co., 435 U.S. 151, 178 (1978), quoting

Bethlehem Steel Co. v. New York State Labor Rela-

tions Board, 330 U.S. 767, 774 (1947).

Like the principle set forth in Perez that state legislative

reports are not to be given conclusive effect, this principle of

preemption goes unmentioned in the Ninth Circuit’s decision.

C. California’s Nuclear Moratorium Obstructs Federal Po-

licy on an Issue of National Importance

The importance of the Ninth Circuit’s ruling is evident

from both its subject matter and from the possibility that it will

be applied on a national basis. In the recent words of the

President, nuclear energy is “[o]ne of the best potential sources

of new electrical energy supplies in the coming decades. ...”

Statement Announcing a Series of Policy Initiatives, 17 Weekly

Comp. of Pres. Docs. 1101 (Oct. 8, 1981). Given that 23 states

filed amicus briefs with the Ninth Circuit in support of Califor-

nia (659 F.2d at 907 n.2, PG&E App. 3 n.2), the court’s ruling

upholding C ‘ifornia’s moratorium opens the door to similar

State provisions across the country.

The Ninth Circuit ruled that California’s moratorium does

not obstruct or frustrate national policy regarding nuclear

energy. However, aside from a total shutdown of existing

nuclear plants, it is difficult to imagine how any state could

more effectively block a congressional policy of encouraging

nuclear energy development than by categorically prohibiting

all new nuclear plants.

It is the across-the-board nature of California’s morato-

rium which is the touchstone in this case. This is not a question

of whether an individual proposed plant should or should not

be certified. The issue is whether a state may prohibit new

power plants, on a categorical basis, solely because they employ

nuclear power.

In answering this question in the manner it does, the Ninth

Circuit significantly distorts the type of federal policy which

would be frustrated by the California moratorium. According

to the court, such a policy would involve “an intent to promote

nuclear power at ail costs.” 659 F.2d at 926, PG&E App. 42

(emphasis added). Having constructed this straw man as the

sine qua non of preemption, it is not surprising that the court

fails to find such an extreme policy in the Atomic Energy Act.

The Act sets forth, as one of its objectives,

“a program to encourage widespread participation in

the development and utilization of atomic energy for

peaceful purposes to the maximum extent consistent

with the common defense and security and with the

health and safety of the public....” 42 U.S.C.

§ 2013(d).

The fact that Congress may also seek to encourage the utili-

zation of other energy sources does not detract from this stated

policy of encouraging nuclear power development and use.

The basis upon which to determine whether this policy has

been altered is no different from the basis for deciding that

Congress has altered “the pervasive regulatory scheme embo-

died in the [Atomic Energy Act].” Train, 426 U.S. at 24. In

the Supreme Court’s own words, that basis is “the clear

indication of legislative intent that we might expect before

recognizing such a change in policy.” Jd.

That basis simply does not exist. California’s absolute

moratorium inescapably “stands as an obstacle to the accom-

plishment and execution of the full purposes and objectives of

Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941). By

virtue of that frustration of federal policy, California’s morato-

rium should be ruled invalid.

CONTRARY TO THE NINTH CIRCUIT, THE

DESTRUCTION OF AN INDIVIDUAL’S JOB BY

CALIFORNIA’S NUCLEAR MORATORIUM

IS A SUFFICIENT BASIS FOR STANDING

TO CHALLENGE THAT LAW

The District Court found that “an independent reason the

utility company suspended Sundesert was the California Nucle-

ar Laws.” 472 F. Supp. at 195, PLF App. 7. The Ninth Circuit

decided that “[e]ven if this were true, it would not suffice to

give Thornberry standing.” 659 F.2d at 913, PG&E App. 14.

According to the Ninth Circuit, the fact that it would be up to

the utility company, a third party not before the court, to offer

Thornberry his job back makes this fact of causation an

insufficient basis for standing. This ruling is unjustified.

The “right of the individual ...to engage in any of the

common occupations of life” is among the liberties guaranteed

by the Constitution. Meyer v. Nebraska, 262 U.S. 390, 399

(1923). The destruction of that right by a state law is a

sufficient basis for an injured person to seek judicial redress.

While the redressability of injury is undeniably an essential

element of standing, this element need only be satisfied to a

degree of likelihood. Once that is done, the issue of redressa-

bility will not obscure the more basic issue of injury caused by

the law being challenged.

This is demonstrated by decisions of this Court dealing

with government-caused injuries in which redress depended

upon factors or parties beyond the court’s jurisdiction. In

Peterson v. City of Greenvilie, 373 U.S. 244 (1963), this Court

reversed the trespass convictions of sit-in demonstrators who

were protesting a local ordinance which required racial segrega-

tion at lunch counters. The Court acted despite the claim that

the manager of the lunch counter, who was not before the court,

would have engaged in discrimination even in the absence of

that ordinance:

“[T]hese convictions cannot stand, even assum-

ing... that the manager would have acted as he did

independently of the existence of the ordinance.”

373 U.S. at 248 (emphasis added ).

In Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977), this Court upheld a

housing developer’s standing to challenge zoning which

blocked a proposed project. The Court rejected any need for a

“guarantee that [the project] will be built,” despite the fact

that outside parties would have to provide the “financing” and

“federal subsidies” essential to the project. 429 U.S. at 261 and

n.7. The Court stated that all such projects “are subject to some

extent to similar uncertainties.” Jd. The fact that the challenged

zoning stood “as an absolute barrier to” the project sufficed for

standing. Jd. California’s nuclear moratorium is no less abso-

lute a barrier to Thornberry’s employment at Sundesert.

In Regents of University of California v. Bakke, 438 U.S.

265 (1978), this Court allowed an unsuccessful medical school

applicant to challenge the school’s special admissions program,

despite the fact that the applicant might not be admitted in any

case:

“{E]ven if Bakke had been unable to prove that he

would have been admitted in the absence of the

special program, it would not follow that he lacked

standing. ... The trial court found [a redressable]

injury, apart from failure to be admitted, in the

University’s decision not to permit Bakke to compete

for all 100 places in the class... .” 438 U.S. at 280

n.14 ( Powell, J.) (emphasis added ).

The nuclear moratorium has no less of an impact on Thorn-

berry’s opportunity to apply for work at Sundesert or at any

other future nuclear plant.

In Orr v. Orr, 440 U.S. 268 (1979), this Court upheld the

standing of a divorced man, who was under court order to pay

alimony, to challenge Alabama’s alimony statutes on the

ground that they denied him equal protection by placing the

duty to pay alimony only on husbands and not wives. The

Court ruled despite the probability that Alabama would re-

spond to an adverse holding by “extending alimony rights to

needy husbands as well as wives.” Jd. at 272; this was a “strong

likelihood,” according to Rehnquist, J., dissenting, id. at 296.

Were this to occur, Mr. Orr would not receive redress despite

having won his case. Yet the Court stated that the

“holdings of the Alabama courts stand as a total bar

to appellant’s relief; his constitutional attack holds

the only promise of escape from the burden that

derives from the challenged statutes.” Jd. at 273.

The Ninth Circuit’s ruling in this case is a similar bar to

Thornberry, and invalidation of California’s moratorium is the

only means by which he can escape from the burden of that

law.

Perhaps the closest factual analogy to Thornberry’s situ-

ation is in Duke Power Co. v. Carolina Environmental Study

Group, Inc., 438 U.S. 59 (1978). A number of organizations

and individuals challenged the constitutionality of the Price-

Anderson Act, 42 U.S.C. § 2210, alleging that its limitation of

nuclear accident liability was the “but for” causal element in

the construction of two nuclear plants. The operation of these

plants, in turn, would allegedly injure the environment and

property values in their vicinity. Regardless of the ruling on

Price-Anderson’s validity, redress of the alleged injuries would

depend on whether or not the Duke Power Company decided

to continue with the construction of the plants. Yet this Court

upheld standing without even determining if it had jurisdiction

over Duke Power:

“We need not resolve the question of whether Duke

Power is a proper party... and Duke’s presence or

absence makes no material difference to either our

consideration of the merits of the controversy or our

authority to award the requested relief.” 438 U.S. at

72 n.16; see also id. at 101 (Rehnquist, J., dis-

senting ).

Parties claiming to be injured by nuclear plants thus had

standing to challenge the validity of a law which allegedly

made it possible for those plants to be built. There is no reason

why Robert Thornberry should not have standing to challenge

the law which made it impossible for him to continue working

at Sundesert. No less than the parties in Duke Power,

Thornberry has

“ ‘alleged such a personal stake in the outcome of the

controversy as to assure that concrete adverseness

which sharpens the presentation of issues upon which

the court so largely depends for illumination of

difficult constitutional questions.”” Duke Power,

438 U.S. at 72, quoting Baker v. Carr, 369 U.S. 186,

204 (1962).

Having lost his job at Sundesert as a result of California’s

nuclear moratorium, he should now be allowed to challenge

that law in court.

THIS CASE IS APPROPRIATE FOR REVIEW DESPITE

THE FACT THAT IT INVOLVES A REVERSAL OF

SUMMARY JUDGMENT

In the PLF case, the Court of Appeals reversed a summary

judgment and remanded the case “for trial or for other

proceedings consisient with [its] opinion.” 659 F.2d at 928,

PG&E App. 46. The court’s substantive rulings on the issues of

preemption and standing, however, are for all practical pur-

poses final rulings in this case. Its finding that California’s

nuclear moratorium is not federally preempted puts an end to

any further proceedings; it would be futile for Robert Thorn-

berry to further attempt to challenge a state law which has

already been ruled valid. If the court’s ruling on preemption

stands, then its substantive holding on both this issue and on

the issue of standing will remain as the final rulings in this case.

The court’s rulings are thus appropriate for review “in-

asmuch as [they are] fundamental to the further conduct of the

case.” United States v. General Motors Corp., 323 U.S. 373, 377

(1945); see, e.g., Gillespie v. United States Steel Corp., 379 US.

148, 153 (1964); Carson v. Domestic and Foreign Commerce

Corp., 337 U.S. 682, 685 n.3 (1949); Land v. Dollar, 330 US.

731, 734 n.2 (1947). As this Court has stated in applying the

analogous requirement of finality in reviewing state court

judgments, review is appropriate when “the federal issue is

conclusive or the outcome of further proceedings [is] pre-

ordained.” Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 479

(1975). Thus, the Ninth Circuit’s action constitutes a final

disposition of the PLF case in its entirety.

CONCLUSION

In upholding California’s nuclear moratorium, the Ninth

Circuit has approved state obstruction of an important and

explicit congressional policy—the encouragement of nuclear

energy development and use. The importance of this ruling is

emphasized by the unprecedented energy shortages of recent

years; the potential of the ruling to open the door to widespread

obstruction is demonstrated by the participation of over 20

states in the court below in support of California.

In reaching its decision, the Ninth Circuit ignored Supreme

Court rulings on dealing with preemption disputes. It gave

conclusive weight to a state assembly committee report, despite

this Court’s characterization of such an approach as

“aberrational.” It ignored the preemptive effect of the federal

government’s decision to proceed with nuclear energy devel-

opment in the absence of an approved means of storing nuclear

wastes. It disregarded the national policy to promote this

energy source, which is explicitly stated in the Atomic Energy

Act. Finally, it denied standing to an individual who had been

thrown out of a job by the very law he sought to challenge.

For these reasons, and for the other reasons set forth

above, this petition for certiorari should be granted.

Respectfully submitted,

RONALD A. ZUMBRUN

RosIN L. RIVETT

Pacific Legal Foundation

455 Capitol Mall, Suite 600

Sacramento, California 95814

Telephone: (916) 444-0154

RAYMOND M. MOMBOISSE

SAM KAZMAN

Pacific Legal Foundation

1990 M Street, N.W., Suite 550

Washington, D.C. 20036

Telephone: (202) 466-2686

Attorneys for Petitioners

April 20, 1982

yipueddy

OPINION OF THE DISTRICT COURT

Unrrtep States District COURT

SOUTHERN DISTRICT OF CALIFORNIA

Civil No. 78-711-E

Pacific LEGAL FOUNDATION, a nonprofit California corpo-

ration; THE SAN DiEGO COALITION, a nonprofit California

corporation; SAN DiEGO SECTION OF THE AMERICAN NUCLEAR

Society, a New York corporation; SAN DiEGO COUNTY BUILD-

ING AND CONSTRUCTION TRAD:S COUNCIL, a labor organiza-

tion; and RoBert C. THORNBERRY, an individual,

Plaintiffs,

Vv.

STATE ENERGY RESOURCES CONSERVATION & DEVELOPMENT

COMMISSION, a state agency; RICHARD L. MAULLIN, Chairman;

and Commissioners Emitio E. VaARANINI, III, ARLAND D.

PASTERNAK, C. SUZANNE REED, and RONALD D. Doctor,

Defendants.

NATURAL RESOURCES DEFENSE COUNCIL, INC., ef ai.,

Defendants-

Intervenors.

William B. Enright, Judge Filed March 6, 1979

MEMORANDUM DECISION

This case involves a challenge to the constitutionality of

three sections of the California Public Resources Code: sections

25524.1, 25524.2 and 25524.3. Plaintiffs contend that these

sections, which impose certain requirements on the certification

of nuclear fission thermal power plants in this state, invade a

field of regulation which has been preempted by the federal

government. Specifically, plaintiffs assert that the Atomic

Energy Act of 1954, as amended, 42 U.S.C. §§ 2011-2281

(1970), preempts the state laws in question.

Before the court for resolution are plaintiffs’ motion for

summary judgment, defendants’ motion to reconsider the mo-

tion to dismiss the complaint or, in the alternative, to certify an

interlocutory appeal, and cross motions brought to strike the

various affidavits and exhibits filed both parties. Upon due

consideration of the memoranda filed by the parties, the

declarations and exhibits, and the arguments of counsel, and

for the reasons set forth herein, the court rules as follows: the.

motion to reconsider the motion to dismiss is denied, as is the

motion to certify an interlocutory appeal, plaintiffs’ motion for

summary judgment is granted, and the various motions to strike

are resolved as set forth below.

Originally, the federal government retained exclusive au-

thority over the development and use of atomic energy. Act of

Aug. 1, 1946, ch. 724, 60 Stat. 755. In 1954, Congress

recognized that private businesses might play a role in the

peaceful development and generation of nuclear power. Con-

gress passed the Atomic Energy Act of 1954, as amended, 42

U.S.C. §§ 2011-2281 (1970), establishing the Atomic Energy

Commission (AEC)' to regulate and promote the use of

nuclear energy. Licensing and regulation of nuclear materials

was subject to federal authority, in order to ensure public safety

and national security. Jd. § 2012.

In 1959, Congress sought to define the States’ role in the

regulation of nuclear materials by enacting amendments to the

Atomic Energy Act. Jd. § 2021. The amendments recognized

the States’ interest in the peaceful use of atomic energy and

proposed to establish procedures whereby certain of the AEC’s

‘In 1974, the Energy Reorganization Act became law, transferring the

licensing and regulatory functions of the Atomic Energy Commission to the

Nuclear Regulatory Commission (NRC). 42 U.S.C. § 5841(f). The AEC’s

previous research and development functions were transferred to the Energy

Research and Development Agency and, later, to the Department of Energy.

Id. §§ 7101-7352. Thus, while the NRC is the successor agency to the AEC, it

retains only licensing and regulatory functions.

regulatory authority over source, by-product and special nucle-

ar materials could be assumed by the States. The amendments

provide for agreements between the governor of a State and the

AEC to accomplish this purpose.

The amendments se* forth specific limits on the delegation

of regulatory authority with regard to nuclear materials. The

federal government retained responsibility for regulating “the

construction and operation of any production or utilization

facility,” the import or export of nuclear materials, and the

disposal of nuclear materials that the AEC decides shall not be

disposed of without a license. Jd. § 2021(c). The amendments

also provided that the States may regulate “activities for

purposes other than protection against radiation hazards.” Jd.

§ 2021(k).

In 1974, the California legislature enacted the Warren-

Alquist State Energy Resources Conservation and Development

Act, establishing a comprehensive power-plant siting procedure

for new thermal-electric power plants and vesting exclusive

jurisdiction to approve such power plants in the State Energy

Resources Conservation and Development Commission.

Cal.Pub.Res.Code §§ 25000-25968. The Energy Commission

must review safety and reliability factors for all types of thermal

power plants. Jd. §§ 25001 & 25511. In 1976, three statutes

imposing certain requirements for the construction of nuclear

power plants were added. Cal.Pub.Res.Code §§ 25524.1,

25524.2 & 25524.3. These three sections are the subject of the

instant lawsuit. Plaintiffs contend that these three sections of

the Public Resources Code, referred to herein as the California

Nuclear Laws, invade a field of regulation which has been

preempted by the federal government under the Atomic Energy

Act of 1954.

California Public Resources Code section 25524.1(a) pro-

vides that no new nuclear fissior thermal power plant requiring

the reprocessing of fuel rods shall be permitted land use in the

State or certified by the Energy Commission until (1) the

Energy Commission finds that the United States agency has

approved a technology for the construction and operation of

nuclear fuel rod reprocessing plants and (2) the commission

has reported its findings to the state legislature, which has the

power to disaffirm them. Subsection (b) of this statute requires

the state commission to make a case-by-case determination that

adequate fuel rod reprocessing capacity or waste storage capa-

city will be available by the time a particular facility requires

reprocessing or waste storage.

Section 25524.2 provides that no nuclear power plant shall

be certified by the state commission until it finds (1) that the

authorized United States agency has approved a technology for

disposal of high-level nuclear wastes and (2) the commission

has reported its findings to the state legislature, which has the

power to disaffirm them.

Section 25524.3 applies to nuclear power plants for which

notices of intent are filed with and accepted by the state

commission after January 1, 1980. The Commission cannot

certify these plants until (1) the commission completes a study

of the necessity, effectiveness and economic feasibility of berm

containment and locating reactors underground and (2) the

legislature evaluates the study.

California Public Resources Code section 25524.25 re-

quired the California Energy Commission to inform the legisla-

ture by January 1978 whether the findings on fuel rod reproces-

sing and waste disposal could be made. The Energy Commis-

sion has concluded that section 25524.1(a), referring only to

power plants that require nuclear fuel rod reprocessing, is not

applicable because reprocessing is not required by the federal

government nor required by technical operational require-

ments. Jn the Matter of Implementation of Nuclear Reproces-

sing and Waste Disposal Statutes, No. 76—NL—1l,

76—NL—3, at 5 (Jan. 25, 1978). As to subsection

25524.1(b), the commission determined that it will, as man-

dated by statute, evaluate on a case-by-case basis the fuel

storage capacity at individual reactor sites. Jd. The commission

found that the findings required by section 25524.2 could not be

made because the federal agencies have not approved a waste

disposal technology. Jd.

With respect to section 25524.3, the commission has

reported that rules and regulations on undergrounding and

berm containment are not warranted. Staff of California

Energy Commission, Draft, Underground Siting of Nuclear

Power Reactors: An Option for California: A Summary of the

Technical and Economic Implications with Recommendations iv,

v, xi, 9—4 (June 1978). The Energy Commission has adopted

this report. Jn the Matter of Determinations of the Commission

Pursuant to Public Resources Code Section 25524.3, No.

76—NL—2 (Sept. 13, 1978).

As a preliminary matter, the court notes that sections

25524.1 and 25524.3 have been rendered moot by the decisions

of the California Energy Commission. The commission has

determined that section 25524.1(a) does not apply to any

reactors proposed for California. Section 25524.1(b) requires a

case-by-case evaluation of fuel storage capacity at individual

reactor sites. No particular storage capacity is specified.

Plaintiffs have failed to demonstrate how this section impedes

the development of nuclear power in California.

Similarly, section 25524.3 is not implicated in the present

controversy. By its terms, this section applies only to power

plants for which a notice of intent is accepted after January 1,

1980.

Plaintiffs argue that the federal government could reinsti-

tute a reprocessing requirement, at which time the California

statute would apply. In the event that action occurred,

plaintiffs could institute a challenge at that time. Issues will not

be found moot if they are capable of repetition, yet likely to

evade review. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35

L.Ed.2d 147 (1973). While the issues presented here might be

capable of repetition, plaintiffs have not shown that these issues

are likely to evade review if a reprocessing requirement is

instituted.

Accordingly, the court concludes that only section 25524.2,

requiring the existence and approval of a high level waste

disposal technology which the Energy Commission has deter-

mined not to exist, presently impedes certification of nuclear

power plants in California.

Before proceeding to the substantive issue of preemption,

the court must determine that plaintiffs have a personal stake in

the outcome of the controversy, entitling them to invoke the

court’s determination of the constitutional issues presented. For

purposes of the motion for summary judgment, plaintiffs rely on

their allegations of lost jobs and harm to the environment as

providing standing to sue. Defendants contend that plaintiffs’

declarations and exhibits offered in support of their alleged

injuries are incompetent and speculative. Further, defendants

claim that their own affidavits place many of the alleged effects

of alternate energy source development at issue, and raise a

factual dispute as to the existence of the alleged injuries.

The court finds it unnecessary to rule on the numerous

objections to the declarations and exhibits filed by both parties.

Only one plaintiff, Robert Thornberry, has presented evidence

of a particularized injury due to the California Nuclear Law.2

As to this plaintiff's injury, the facts are unequivocal.

Thornberry was hired by San Diego Gas and Electric

Company and assigned to work on the licensing of the Sundes-

ert nuclear power project in Southern California. Shortly after

San Diego Gas and Electric Company’s board of directors

resolved to terminate the Sundesert project, Mr. Thornberry

lost his job due to a reduction in force.

Defendants do not dispute that Thornberry suffered an

injury. Nor do they dispute that Thornberry lost his job as a

result of the suspension of Sundesert. However, they attack the

2 With the exception of plaintiff Robert Thornberry’s declaration and

exhibits, the declarations offered in support of plaintiffs’ standing to sue fail to

demonstrate a concrete injury as a result of the California Nuclear Laws. The

court finds the general allegations of lost jobs and environmental harm to be

speculative, conclusory and unsupported by specific facts. In addition, no

casual connection between the alleged injuries and the California Nuclear

Laws is conclusively established. In contrast, the court finds Thornberry’s

injury to be concrete and traceable to the Energy Commission’s decisions

effectively placing a moratorium on the development of nuclear power plants

in California.

causal connection in another way, arguing that Thornberry’s

injury is not a result of the California Nuclear Laws because the

Sundesert project would have been terminated in any event due

to the utility company’s inability to secure a general rate

increase to finance work in progress.

Plaintiffs agree that financial impediments contributed to

the demise of Sundesert. However, plaintiffs submit that an

independent reason the utility company suspended Sundesert

was the California Nuclear Laws. This contention is supported

by the resolution of San Diego Gas and Electric Company’s

board of directors, listing the utility’s failure to obtain an

exemption from the nuclear laws as one reason for suspending

the Sundesert project. This contention is uncontroverted by

defendants’ declarations, which state only that in the declar-

ants’ opinions Sundesert was closed due to failure to obtain a

rate increase.

Although the causal connection is indirect, the connection

is sufficient to provide standing. Duke Power Company v.

Carolina Environmental Study Group, Inc., 438 U.S. 59, 75

n.20, 98 S.Ct. 2620, 2631 n.20, 57 L.Ed.2d 595, 612 n.20

(1978); United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405,

37 L.Ed.2d 254 (1973). As revealed by the utility’s board of

directors, the California Nuclear Laws were perceived as a

substantial impediment to final certification of the Sundesert

power plan and additional expenditures were authorized only

until the company had time to pursue an exemption from these

laws. The court finds a “substantial likelihood” that the

Sundes.:t project would proceed absent the California Nuclear

Laws and that Thornberry would not have been terminated.

Duke Power Company v. Carolina Environmental Study Group,

Inc., supra; Arlington Heights v. Metropolitan Housing Devel-

opment Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 50 L.Ed.2d 450

(1977).

Defendants have also questioned the ripeness of the issues

for judicial resolution, both by seeking a reconsideration of this

court’s ruling on the motion to dismiss and by various declara-

tions which defendants claim raise factual disputes as to

ripeness.

The rationale for the ripeness doctrine is “to prevent the

courts, through avoidance of premature adjudication, from

entangling themselves in abstract disagreements over adminis-

trative policies, and also to protect the agencies from judicial

interference until an administrative decision has been formal-

ized and its effects felt in a concrete way by the chalienging

parties.” Abbott Laboratories v. Gardner 387 U.S. 136, 148-49,

87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967).

In the present case a moratorium has been effected by

formal agency action. The California Energy Commission has

determined that the specified findings on waste disposal, with-

out which no nuclear power plant may be certified, cannot be

made. Indisputably, no nuclear power plants can be licensed in

California, at least temporarily. Even Professor Tribe, a strong

proponent of the California Nuclear Laws, has concluded:

“In light of the findings in its decision, the Energy

Commission cannot presently certify any nuclear

fission thermal power plants. The conditions im-

posed by the nuclear provisions will prevent such

certification until the technology or means for dis-

posing of high-level radioactive wastes actually exists,

and is approved by the federal government. The

Energy Commission projects that such capability will

be available no sooner than the mid-1980’s; the time

required may easily extend into the 1990's.”

Tribe, California Declines the Nuclear Gamble: Is Such a State

Choice Preempted?, 7 ECOLOGY L.Q. 679, 683 (1979) (foot-

notes omitted ).

Plaintiff Thornberry has demonstrated that he feels the

effects of the moratorium in a concrete way. As a result of San

Diego Gas and Electric Company’s failure to gain an exemption

from the California Nuclear Laws for its Sundesert project, Mr.

Thornberry lost his job. This plaintiff has demonstrated that

the moratorium itself contributed to the suspension of Sunde-

sert and caused his injuries.

PREEMPTION OF PUBLIC RESOURCES

CODE SECTION 25524.2

The doctrine of federal preemption of state authority has

its origin in the “Supremacy Clause” of Article VI of the

Constitution, which declares that;

“This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof. . . shall be

the Supreme Law of the Land... any Thing in the

Constitution or Laws of any State to the Contrary

notwithstanding.”

When, as here, a State’s exercise of its police power is chal-

lenged under the Supremacy Clause, a federal court must

commence its analysis “with the assumption that tl.2 historic

police powers of the States were not to be superseded by the

Federal Act unless that was the clear and manifest purpose of

Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230,

67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947); Ray v. Atlantic

Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 994, 55 L.Ed.2d 179

(1978). One of the legitimate inquiries is whether Congress has

either explicitly or implicitly prohibited the States from regu-

lating matters which relate to nuclear waste disposal or to the

construction and operation of nuclear power plants.

Express preemption occurs when Congress has expressly

stated either in a federal statute or in the legislative history

pertaining thereto that federal regulation was intended to be

exclusive. Railway Employees’ Department v. Hanson, 351 U.S.

225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956); Pennsylvania v.

Nelson, 350 U.S. 497, 501-02, 76 S.Ct. 477, 479, 100 L.Ed. 640

(1956); Schwabacher v. United States, 334 U.S. 182, 197, 68

S.Ct. 958, 966, 92 L.Ed. 1305 (1948).

Even in the absence of an express Congressional declara-

tion that federal regulation is intended to be exclusive, federal

preemption may be found by implication:

“[The Congressional] purpose may be evidenced in

several ways. The scheme of federal regulation may

be so pervasive as to make reasonable the inference

that Congress left no room for the States to Supple-

ment it. ... Or the Act of Congress may touch a

field in which the federal interest is so dominant that

the federal system will be assumed to preclude

enforcement of state laws on the same subject. ...

Likewise, the object sought to be obtained by the

federal law and the character of obligations imposed

by it may reveal the same purpose. ...”

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct.

1146, 1152, 91 L.Ed. 1447 (1947).

Finally, even if Congress has not completely foreclosed

state legislation in a particular area, a state statute is void to the

extent that it actually conflicts with a valid federal statute. Ray

v. Atlantic Richfield Co., supra, 435 U.S. at 158, 98 S.Ct. at 994.

A conflict in this sense may be found in at least two types of

circumstances. First, conflict preemption will occur “where

compliance with both federal and state regulation is a physical

impossibility.” Florida Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248

(1963). Second, a conflict will be found where the state “law

stands as an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress.” Hines v. Davido-

witz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941).

Applying the foregoing principles of law, the court finds

California Public Resources Code section 25524.2 preempted

both because Congress has impliedly foreclosed state legislation

on the subject of nuclear waste disposal and, alternatively,

because the statute stands as an obstacle to the purposes and

objectives of Congress as stated in the Atomic Energy Act of

1954, as amended, 42 U.S.C. § 201i et seg.

IMPLIED PREEMPTION

The issue of whether the federal government has preemp-

ted the sphere of radiological hazard regulation is not a matter

of first impression in the federal courts. Thus far the issue has

been squarely confronted in two cases, and in both instances a

conclusion of implied preemption was reached. Northern States

Power Company v. State of Minnesota, 447 F.2d 1143 (8th Cir.

1971), aff'd mem., Minnesota v. Northern States Power Co., 405

U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576 (1972); United States

v. City of New York, 463 F. Supp. 604 (S.D.N.Y.1978).

Minnesota, like California in the case at bar, attempted to

regulate on the subject of radioactive waste disposal. Acting

through its Pollution Control Agency, it established stringent

standards for radioactive liquid and gaseous discharges from

nuclear power plants licensed by the Atomic Energy Commis-

sion (AEC). The Northern States court, emphasizing the

importance of the interrelationship between subsections (c)

and (k) of 42 U.S.C. § 2021,3 interpreted the Atomic Energy

Act, as amended, to preclude concurrent state regulation of

matters reserved to the AEC in section 2021(c) and found the

Minnesota regulation preempted. The Court arrived at this

conclusion after a thorough examination of the legislative

history pertaining to the Atomic Energy Act of 1954 and its

subsequent amendment in 1959. The Northern States holding

was extensively relied upon by a District Court which reached a

similar result in United States v. City of New York, supra. In

that case the court found that a provision of the New York City

Health Code purporting to require licensing by the Commis-

sioner of Health as a precondition to nuclear reactor operation

was unconstitutional insofar as it had been impliedly preempted

by the Atomic Energy Act.

Defendants apparently do not contest the reasoning and

result of the courts in Northern States and United States v. City

3447 F.2d at 1149.

4“We are more concerned here with subsection (c) of § 2021 which

prohibits the AEC from discontinuing its authority and responsibility with

respect to the regulation of certain specified activities. ... Minnesota inter-

prets this subsection only as prohibiting fota/ relinquishment by the federal

government over nuclear power plants, but does not view the concurrent

exercise of state control over nuclear facilities as being forbidden by the

Act... We cannot agree with Minnesota's position that dual control over

atomic power plants and the level of effluents discharged therefrom is

permissible under the Act... .” 447 F.2d at 1149.

of New York except insofar as they make certain arguments

from the Clean Air Act amendments of 1977.5 Instead, they

seek to avoid the effect of these decisions by distinguishing

them. Relying principally upon section 2021(k), defendants

urge the court to uphold Public Resources Code section 25524.2

on the basis that the statute regulates “activities for purposes

other than protection against radiation hazards.” 42 U.S.C.

§ 2021(k). They suggest that section 25524.2 is valid because it

was not enacted for the prohibited purpose of radiation control.

Rather, the argument runs, it was enacted for the economic

purpose of insuring that Californians will not have to bear the

financial risk of funding nuclear power plants which may later

be shut down because of inadequate permanent waste disposal

facilities.

Initially, the court would note that defendants’ argument

rests upon an exceedingly broad interpretation of section

2021(k). The underlying premise seems to be that any sort of

regulation at all is permissible as long as a state legislature is

willing and ingenious enough to conjure up a legislative

purpose other than radiation control. The evil inherent in

giving conclusive effect to declared state legislative purposes to

uphold a state statute or regulation which would otherwise be

preempted has previously been recognized by the Supreme

Court. Perez v. Campbell, 402 U.S. 637, 651-52, 91 S.Ct. 1704,

5 Defendants suggest that the 1977 amendments to the Clean Air Act, 42

U.S.C. § 7401 ef seg., manifest an intent of Congress to legislatively overrule

Northern States Power Company v. State of Minnesota, 447 F.2d 1143 (8th

Cir. 1971. Although the legislative history of the amendments appears to

indicate Congressional disapproval of Northern States in the narrow context

of radioactive air pollution, see House Rep. No. 95-564 at 143, there is no

basis for the supposition that Congress disapproved of the decision in other

contexts, such as, for example, nuclear waste disposal. Indeed, the legislative

history of the amendments seems to affirmatively show that Congress was

aware of the Northern States case and, except in the context of radioactive air

pollution, declined to upset the major part of the holding.

1712, 29 L.Ed.2d 233 (1971).® It would appear that under

defendants’ suggested interpretation of section 202i(k) the

Minnesota regulation held unconstitutional in Northern States

would have successfully withstood a preemption challenge if

the Minnesota Pollution Control Agency or some other state

authority had asserted the purpose of the regulation to be the

minimization of future medical costs associated with a high

incidence of cancer precipitated by the radioactive effluvia from

the nuclear power plants.

More generally, the danger inherent in interpreting section

2021(k) in the broad manner defendants suggest is that the

zone of exclusive federal regulation under section 2021(c)

could readily be nullified through careful tailoring of state

legislative purposes. If section 2021(k) is broadly interpreted

to validate any state statute or regulation as long as there

appears a stated purpose other than protection against radiation

hazard, then the States would effectively be permitted to

intrude into the preempted sphere and regulate radiation

hazard under the guise of a permitted legislative purpose. It is

scarcely ‘redible that Congress, in enacting section 2021(k),

intended to furnish the States with a means of evading and

undermining the NRC’s exclusive regulatory authority under

section 2021(c). Rather, the better inference would scem to be

that Congress envisioned that section 2021(k) would be inter-

preted in such a fashion as not to nullify what Congress

provided in section 2021(c).

The legislative history of the 1959 amendments to the

Atomic Energy Act of 1954 somewhat lends support to the view

6 The Court wrote in Perez: “We can no longer adhere to the aberra-

tional doctrine of Kesler |v. Dept. of Pub. Safety, 369 U.S. 153, 82 S.Ct. 807, 7

L.Ed.2d 641] and Reitz |v. Mealey, 314 U.S. 33, 62 S.Ct. 241, 241, 86 L.Ed.

21] that state law may frustrate the operation of federal law as long as the

state legislature in passing its law had some purpose in raind other than one of

frustration. Apart from the fact that it is at odds with the approach taken in

nearly all our Supremacy Clause cases, such a doctrine would enable state

legislatures to nullify nearly all unwanted federal legislation by simply

publishing a legislative committee report articulating some state interest or

policy—other than frustration of the federal objective—that would be

tangentially furthered by the proposed state law.” 402 U.S. at 651-52, 91 S.Ct.

at 1712.

that Congress commended to the federal courts the task of

interpreting section 2021(k) in a manner harmonious with

section 2021(c). At the conclusion of the May 1959 hearings,

the Joint Committee on Atomic Energy proposed to amend

what is presently section 2021(k) as follows:

“It is the intention of this Act that State laws and

regulations concerning the control of radiation haz-

ards from byproduct, source, and special nuclear

materials shall not be applicable except pursuant to

an agreement entered into with the Commission

pursuant to subsection b... .””

Subsequently, the General Manager of the AEC sent a letter to

Chairman Anderson of the Joint Committee recommending

deletion of this sentence:

“At the hearing, we recommended the omission of

the sentence. ... In suggesting the elimination of the

sentence, we did not intend to leave any room for the

exercise of concurrent jurisdiction by the States to

control radiation from those materials. Our sole

purpose was to leave room for the courts to determine

the applicability of particular State laws and regu-

lations dealing with matters on the fringe of the

preempted area in the light of all the provisions and

purposes of the Atomic Energy Act, rather than in the

light of a single sentence.”’®

The Joint Committee adopted the AEC’s suggestion and ac-

cordingly deleted the sentence. The weight given by the Joint

Committee to the AEC’s interpretation of section 2021(k)

seems to indicate Congressional approval of the position that

the precise extent of preemption under the section is to be

? Hearings Before the Joint Comm. on Atomic Energy on Federal-State

Relationships in the Atomic Energy Field, 86th Cong., st Sess. 488 (1959).

(Joint Comm. Hearings).

8 Joint Comm. Hearings at 500. (Emphasis added)

determined by the courts in the light of all the provisions and

purposes of the Atomic Energy Act.®

For the reasons stated above, the court finds itself unable

to interpret section 2021(k) as giving conclusive effect to a

declared state legislative purpose for purposes of determining

the validity of a state statute or regulation under the section.

That California may have predicated Public Resources Code

section 25524.2 upon an economic purpose is not a sufficient

condition for a finding of constitutionality. Instead of focusing

narrowly on the issue of California’s legislative purpose, the

court will examine whether section 25524.2 impinges upon the

sphere of exclusive regulatory jurisdiction reserved to the NRC

in section 2021(c).

Section 2021(c) provides that the NRC shall retain au-

thority and responsibility with respect to the regulation of the

construction and operation of nuclear power plants and with

respect to the regulation of nuclear waste disposal.'° In the

exercise of its discretion, the NRC has decided not to require

the existence of a technology for the permanent disposal of

nuclear waste as a condition precedent for the construction and

operation of nuclear reactors. The NRC’s decision in this

regard falls within the preempted sphere because it relates to,

touches upon and involves the regulation of radiation hazard

pertaining to the construction and operation of nuclear power

plants and to nuclear waste disposal. California has decided

otherwise, decreeing that no nuclear power plant may be

constructed in the State of California unless there exists a

demonstrated technology for the disposal of nuclear waste. The

court finds that the question of whether nuclear power plants

may be constructed and operated in the absence of a demon-

strated technology for the permanent disposal of nuclear waste

® See Murphy & La Pierre, Nuclear ‘Moratorium’ Legislation in the

States and the Supremacy Clause: A Case of Express Preemption, 76

Colum.L.Rev. 392, 398-405 (1976): “As the AEC recognized, the exact

bounds of state regulation for these ‘other’ purposes, which may have

incidental effect on materials or facilities licensed by the Commission, cannot

readily be determined. But it is only in this regard that section 274 [42 U.S.C.

§ 202] leaves the precise extent of preemption to be answered by the courts.”

42 U.S.C. § 2021(c)( 1), 2021(c)(4).

is exclusively reserved to the NRC by section 2021(c) and that

state regulaton on this subject is displaced. Accordingly, the

court holds California Public Resources Code section 25524.2

impliedly preempted.

PUBLIC RESOURCES CODE § 25524.2 AS AN OBSTACLE

TO THE PURPOSES AND OBJECTIVES OF CONGRESS

Assuming arguendo that Congress has not completely

foreclosed state regulation on the subject of radiation hazard

control, California Public Resources Code section 25524.2 is

nonetheless void because it “stands as an obstacle to the

accomplishment and execution of the full purposes and objec-

tives of Congress,” Hines v. Davidowitz, 312 U.S. 52, 67, 61

S.Ct. 399, 404, 85 L.Ed. 581(1941), in encouraging and

fostering the development, use and control of atomic energy.

The substantive provisions of the Atomic Energy Act of

1954 are preceded by general statutory provisions which set

forth Congressional findings, a Congressional declaration of

policy and Congressional purposes. 42 U.S.C. §§ 2011, 2012,

2013. These provisions appear to provide an excellent means of

gauging the “purposes and objectives of Congress” within the

meaning of the Hines decision. Section 2011 indicates that the

development, use and control of atomic energy for the purpose

of achieving certain ends is declared to be the policy of the

United States. Section 2012 asserts as a Congressional finding

that “[t]he development, utilization, and control of atomic

energy for military and for all other purposes are vital to the

common defense and security.” 42 U.S.C. § 2012(a). Section

2013 manifests the intent of Congress to provide for “a

program to encourage widespread participation in the devel-

opment and utilization of atomic energy for peaceful pur-

poses....” 42 U.S.C. §2013(d). When taken together, the

foregoing provisions of law suggest that Congress contemplated

the ongoing development of nuclear energy, subject to state and

federal regulation. The court in Northern States reached a

similar conclusion as to the import of these statutory provisions:

“Congressional objectives expressed in the 1954 Act

evince a legislative design to foster and encourage the

development, use and control] of atomic energy so as

to make the maximum contribution to the general

welfare and to increase the standard of living. 42

U.S.C. §§ 2011, 2012.”

Northern States Power Company v. State of Minnesota, supra,

447 F.2d at 1153.

Congress’ policy to encourage the development and utili-

zation of nuclear energy would decidedly be frustrated if all

fifty states had statutes similar to California Public Resources

Code section 25524.2. Although the Atomic Energy Act cer-

tainly leaves room for the states to regulate on the subject of

nuclear energy within the confines of section 202i(k) and

2021(b), the power to regulate is not necessarily the power to

prohibit. There seems little point in enacting an Atomic Energy

Act and establishing a federal agency to promulgate extensive

and pervasive regulations on the subject of construction and

operation of nuclear reactors and the disposal of nuclear waste

if it is within the prerogative of the states to outlaw the use of

atomic energy within their borders.

The court finds its conclusion of preemption strengthened

by the analogous case of First lowa Hydro-Electric Cooperative

v. Federal Power Commission, 328 U.S. 152, 66 S.Ct. 906, 90

L.Ed. 1143 (1946). In that case First lowa Hydro-Electric

Cooperative (First lowa) sought to construct and operate a

dam on the Cedar River in lowa. Its application to the Federal

Power Commission ( FPC) for a license was denied on the basis

that First lowa had failed to submit satisfactory evidence of

compliance with the laws of the State of lowa. Among these

laws was a Statute requiring a party proposing to construct a

dam to obtain a permit from the State Executive Council.

The Supreme Court found the FPC’s denial of First lowa’s

application unwarranted under the Federal Water Power Act

and declined to interpret the Act as requiring a license applicant

to demonstrate compliance with state laws. The Court held that

the purpose of the Act was to promote the comprehensive

development of water resources of the United States; that the

detailed provisions of the Act providing for the federal plan of

regulation left no room or need for conflicting state controls."'

First lowa appears to indicate that states cannot enact

legislation which tends to frustrate national plans to develop

resources for use in interstate commerce. Public Resources

Code section 25524.2 is consequently preempted because it

would seriously disrupt the national plan and policy of Con-

gress for the development of nuclear energy.'? The statute

stands as an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress in developing the

peaceful use of atomic energy.

Defendants have eloquently and articulately apprised the

court of their concerns relative to the practicality and advis-

ability of the use of nuclear energy as an alternative power

source. The arguments advanced by defendants with respect to

this subject are indeed weighty and not lacking in appeal.

However, it is the province and duty of this court “to say what

the law is,” Marbury v. Madison, 1 Cranch. 137, 2 L.Ed.

60( 1803), rather than to pass on the public policy question of

whether the states ought to utilize or not to utilize atomic

energy or whether the federal government ought to grant

autonomy to the states on the nuclear question. Many of the

arguments made before this court, therefore, would seem more

appropriately presented to Congress.

For the reasons stated above, the court declares California

Public Resources Code section 25524.2 unconstitutional.

11328 U.S. at 180-181. 66 S.Ct. at 919-920.

12 See Murphy & La Pierre, Nuclear ‘Moratorium’ Legislation in the

States and the Supremacy Clause: A Case of Express Preemption, 76

Colum.L.Rev. 392, 447-450 (1976).

ORDER OF THE COURT OF APPEALS

DENYING REHEARING

United States Court of Appeals

For THE NINTH CIRCUIT

Nos. 79-3365, 79-3382,

80-4265, 80-4273

PaciFic LEGAL FOUNDATION, a California

Nonprofit Corporation, ef al.,

Plaintiffs-Appellees,

¥.

STATE ENERGY RESOURCES CONSERVATION & DEVELOPMENT

COMMISSION, a state agency, ef al.,

Defendants-Appeliants.

NATURAL Resources DEFENSE COUNCIL, INC., ef al.,

Defendants-Intervenors-Appellants.

Paciric GAS AND ELEcTric Co. and

SOUTHERN CALIFORNIA EDISON Co.,

Plaintiffs-Appellees,

STATE ENERGY RESOURCES CONSERVATION & DEVELOPMENT

COMMISSION, a state agency, ef al.,

Defendants-Appellants.

NATURAL RESOURCES DEFENSE COUNCIL, INC., ef al.,

Defendants-Intervenors-Appellants.

Before FLETCHER and FERGUSON, Circuit Judges and

FITZGERALD, District Judge.

Filed January 20, 1982

The panel as constituted in the above case has voted to

deny the petition for rehearing. Judges Fletcher and Ferguson

have voted to reject the suggestion for a rehearing en banc, and

Judge Fitzgerald has recommended rejection of the suggestion

for rehearing en banc.

The full court has been advised of the suggestion for en

banc hearing, and no judge of the court has requested a vote on

the suggestion for rehearing en banc. Fed. R. App. 35(b).

The petition for rehearing is denied and the suggestion for

a rehearing en banc is rejected.

ANNOTATIONS TO CALIFORNIA PUBLIC

RESOURCES CODE § 25524.2

Historical Note

Section 2 of Stats.1976, c. 196, p.

“The provisions of this act shall not become operative

if Proposition 15 of the June 1976 election is adopted by

the people, whether or not this bill is chaptered before or

after such adoption.” [Proposition 15, Nuclear Power

Plants, was rejected by the people on June 8, 1976. ]

provided:

[Reprinted from CAL. PUB. RES. CODE ( West 1977) ]

1. Validity

Sections 25524.1, this section and 25524.3, imposing state

regulatory authority over certain aspects of the development,

construction and operation of nuclear power plants are

preempted by the federal regulatory scheme with respect to

nuclear energy and therefore are in violation of the Supremacy

Clause of the United States Constitution. 61 Ops.Atty.Gen.

159, 4-25-78.

{ Reprinted from CAL. PUB. RES. CODE ( West Supp. 1982) ]

TEXT OF PROPOSITION 15

This initiative measure proposes to add a Title 7.8 to the

Government Code. It does not amend any existing law.

PROPOSED LAW

Sec. |. Title 7.8 (commencing with Section 67500) is

added to the Government Code, to read:

TITLE 7.8 LAND USE AND NUCLEAR POWER

LIABILITY AND SAFEGUARDS ACT

67500. This title shall be known and may be cited as the

Nuclear Safeguards Act.

67501. The people and the State of California hereby find

and declare that nuclear power plants can have a profound

effect on the planning for, and the use of, large areas of the

state, as do related facilities connected with the manufacture,

transportation, and storage of nuclear fuel, and the trans-

portation, reprocessing, storage, and disposal of radioactive

materials from nuclear fission power plants.

67502. The people further find and declare that substan-

tial questions have been raised concerning the effect of nuclear

fission power plants on land use and land use planning, as well

as on public health and safety. Such questions include, but are

not limited to, (a) the reliability of the performance of such

plants, with serious economic, security, health, and safety

consequences; (b) the reliability of the emergency safety

systems for such plants; (c) the security of such plants, and of

systems of transportation, reprocessing, and disposal or storage

of wastes from such plants from earthquakes, other acts of God,

theft, sabotage, and the like; (d) the state of knowledge

regarding ways to store safely or adequately dispose of the

radioactive waste products from nuclear fission power plants

and related facilities; and (e) the creation by one generation of

potentially catastrophic hazards for future generations.

67503. A nuclear fission power plant and related facilities

may be a permitted land use in the State of California and its

waters and considered to be reasonably safe and susceptible to

rational land use planning, and may be licensed by state or

local agencies, and may be constructed in the state only if all of

the following conditions are met:

(a) after one year from the date of the passage of this

measure, the liability limits imposed by the federal government

have been removed and full compensation assured, either by

law or waiver, as determined by a California court of competent

jurisdiction and subject to the normal rights of appeal, for the

people and businesses of California in the event of personal

injury, property damage, or economic losses resulting from

escape or diversion of radioactivity or radioactive materials

from a nuclear fission power plant, and from escape or

diversion of radioactivity or radioactive materials in the prepa-

ration, transportation, reprocessing, and storage or disposal of

such materials associated with such a plant; and

(b) after five years from the date of the passage of this

measure.

(1) the effectiveness of all safety systems, including but not

limited to the emergency core cooling system, of any nuclear

fission power plant operating or to be operated in the State of

California is demonstrated, by comprehensively testing in ac-

tual operation substantially similar physical systems, to the

satisfaction of the Legislature, subject to the procedures speci-

fied in Section 67507; and

(2) the radioactive wastes from such a plant can be stored

or disposed of, with no reasonable chance, as determined by the

Legislature, subject to the procedures specified in Section

67507, of intentional or unintentional escape of such wastes or

radioactivity into the natural environment which will eventually

adversely affect the land or the people of the State of Califor-

nia, whether due to imperfect storage technologies, earthquakes

or other acts of God, theft, sabotage, acts of war, governmental

or social instabilities, or whatever other sources the Legislature

may deem to be reasonably possible.

67504. (a) If within one year from the date of the passage

of this measure the provisions of subsection 67503( a) have not

been met, then each existing nuclear fission power plant and

such plants under construction failing to meet the conditions

specified in subsection 67503(a) shall not be operated at any

time at more than sixty per cent of the original licensed core

power level of such plant.

(b) Beginning five years from the date of the passage of

this measure, each existing nuclear fission power plant and each

such plant under construction shall not be operated at any time

at more than sixty per cent of the licensed core power level of

such plant and shall thereafter be derated at a rate of ten per

cent per year of the licensed core power level of such plant, and

shall not be operated at any time in excess of such reduced core

power level, unless all of the conditions enumerated in Section

67503 are met.

67505. The provisions of Sections 67503 and 67504 shall

not apply to small-scale nuclear fission reactors used exclusively

for medical or experimental purposes.

67506. One year from the date of the passage of this

measure, the Legislature shall initiate the hearing process

specified in Section 67507, and, within three years from the

date of the passage of this measure, determine whether it is

reasonable to expect that the conditions specified in Section

67503( b) will be met. Unless the Legislature determines that it

is reasonable to expect that the conditions of Section 67503(b)

will be met, then nuclear fission power plants shall be a

permitted land use in California only if such existing plants and

such plants under construction are operated at no more than

sixty per cent of their licensed core power level. Unless the

determinations specified in this section are made in the affirma-

tive, then neither the siting nor the construction of nuclear

fission power plants or related facilities shall be a permitted

land use in California.

67507. The determinations of the Legislature made

pursuant to subsection 67503(b) and Section 67507 shall be

made only after sufficient findings and only by a two-thirds vote

of each house.

(a) To advise it in these determinations, the Legislature

shall appoint an advisory group of at least fifteen (15) persons,

comprised of distinguished experts in the fields of nuclear

engineering, nuclear weaponry, land use planning, cancer re-

search, sabotage techniques, security systems, public health,

geology, seismology, energy resources, liability insurance, trans-

portation security, and environmental sciences; as well as

concerned citizens. The membership of this advisory group

shall represent the full range of opinion on the relevant

questions. The group shall solicit opinions and information

from responsible interested parties, and hold widely publicized

public hearings, after adequate notice, in various parts of the

State prior to preparing its final report. At such hearings an

opportunity to testify shall be given to all persons and an

Opportunity to cross-examine witnesses shall be given to all

interested parties, within reasonable limits of time. The

advisory group shall make public a final report, including

minority reports if necessary, containing its findings, con-

clusions, and recommendations. Such report shall be summa-

rized in plain language and made available to the general

public at no more than the cost of reproduction.

(b) To ensure full public participation in the determina-

tions specified in subsection 67503(b) and Section 67506, the

Legislature shall also hold open and public hearings, within a

reasonable time after the publication of the report specified in

subsection (a) of this section, and before making its findings,

giving full and adequate notice, and an opportunity to testify to

all persons and the right to cross-examine witnesses to all

interested parties, within reasonable limits of time.

and the like submitted to the Legislature in conjunction with its

determinations specified in subsection 67503(b) and Section

67506, or to the advisory group described in subsection (a) of

this section, shall be made available to the general public at no

more than the cost of reproduction.

(d) No more than one-third of the members of the

advisory group specified in this section shall have, during the

two years prior to their appointment to the group, received any

substantial portion of their income directly or indirectly from

any individual, association, corporation, or governmental

agency engaged in the research, development, promotion,

manufacture, construction, sale, utilization, or regulation of

nuclear fission power plants or their components.

(e) The members of the advisory group shall serve without

compensation, but shall be reimbursed for the actual and

necessary expenses incurred in the performance of their duties

to the extent that reimbursement is not otherwise provided by

another public agency. Members who are not employees of

other public agencies shall receive fifty dollars ($50) for each

full day of attending meetings of the advisory group.

(f) The advisory group may:

(1) Accept grants, contributions, and appropriations;

(2) Create a staff as it deems necessary;

(3) Contract for any professional services if such work

or services cannot satisfactorily be performed by its em-

ployees;

(4) Be sued and sue to obtain any remedy to restrain

violations of this title. Upon request of the advisory group,

the State Attorney General shall provide necessary legal

representation.

(5) Take any action it deems reasonable and neces-

sary to carry out the provisions of this title.

(g) The advisory group and all members of the advisory

group shall comply with the provisions of Sections 87100

through 87312 inclusive, of Title 9 of the California Govern-

ment Code.

(h) Any person who violates any provision of this section

shall be subject to a fine of not more than ten thousand dollars

($10,000), and shall be prohibited from serving on the adviso-

ry group.

67508. (a) The Governor shall annually publish, publicize,

and release to the news media and to the appropriate officials of

affected communities the entire evacuation plans specified in

the licensing of each nuclear fission power plant. Copies of

such plans shall be made available to the public upon request,

at no more than the cost of reproduction.

(b) The Governor shall propose procedures for annual

review by state and local officials of established evacuation

plans, with regard for, but not limited to such factors as changes

in traffic patterns, population densities, and new construction of

schools, hospitals, industrial facilities, and the like. Opportunity

for full public participation in such reviews shall be provided.

Sec. 2. There is hereby appropriated from the General

Fund in the State Treasury to the legislative advisory group

created by Section 67507 of the Government Code the sum of

eight hundred thousand dollars ($800,000) for expenditures

necessary in carrying out the responsibilities and duties set forth

in Section 67507 of the Government Code.

Sec. 3. Amendments to this measure shall be made only by

a two-thirds affirmative vote of each house of the Legislature,

and may be made only to achieve the objectives of this

measure.

Sec. 4. If any provision of this measure or the application

thereof to any person or circumstances is held invalid, such

invalidity shall not affect other provisions or applications of the

measure which can be given effect without the invalid provision

or application, and to this end the provisions of this measure

are severable.

[Reprinted from Excerpt of Record at 217-21, Pacific Legal

Foundation v. State Energy Resources Conservation & Devel-

opment Commission, Nos. 79-3365, 79-3382, 659 F.2d 903 (9th

Cir. 1981)]

——

=—

-_—_.

Office - Supreme Court, U.S.

No. 81-1944 FILED

IN THE ee ee

SUPREME COURT OF THE UNITED STATES

October Term, 1981

PACIFIC LEGAL FOUNDATION, et al,

vs.

STATE ENERGY RESOURCES CONSERVATION

AND DEVELOPMENT COMMISSION, et ai,

Respondents.

PACIFIC GAS AND ELECTRIC

COMPANY and SOUTHERN

CALIFORNIA EDISON COMPANY,

Petitioners,

vs.

STATE ENERGY RESOURCES CONSERVATION

AND DEVELOPMENT COMMISSION, et ai,

Petitioners,

Respondents.

Consolidated Response to Petitions for Writ

of Certiorari to the United States Court

of Appeals for the Ninth Circuit

(617) 495-4621

ROGER BEERS

KATHRYN BURKETT DICKSON

QUESTIONS PRESENTED

1. Did the Ninth Circuit err in holding that a nuclear

engineer, who allegedly lost his job when his employer

cancelled a power plant project, was not entitled to sum-

mary judgment on the issue of his standing to challenge

the validity of a state law, where (a) factual disputes

existed as to whether the challenged law caused the

project’s cancellation, and (b) the engineer failed even

to allege that invalidation of the law would likely redress

his loss of employment?

2. Did the Ninth Circuit err in treating as unripe for

adjudication two utilities’ omnibus preemption chal-

lenges to state statutes that had not yet been authorita-

tively interpreted or finally applied to any utility’s

nuclear project, where the plaintiff utilities’ claims of

present injury were based exclusively on their fears

about how the provisions might be interpreted and ap-

plied in the future?

3. Did the Ninth Circuit err in holding that two Cali-

fornia statutes which address California’s need for a reli-

able, economical, and environmentally acceptable

supply of electrical energy, do so without intruding into

federally preempted areas of radiation hazard control or

obstructing any congressional objective regarding nu-

clear power?

4. Does any of these questions pose an issue of suffi-

cient legal or factual significance to warrant current

resolution by this Court?

TABLE OF CONTENTS

Ee en ee mn

TABLE OF CONTENTS .0....ccssssssssssssssssssssssee aiaidinen iii

TABLE OF AUTHORITIES onetime Vv

JURISDICTION = wa oe

ST SI I iat icles sctittiienteenicttianintiemiennnininenians 2

ee 2

The Atomic Energy Act of 1954 and the Challenged Statutes.......... 4

Petitioners’ Omnibus Preemption Claims sesitaiaihaapinatali y

REASONS FOR DENYING THE WRIT 10

I. THE NINTH CIRCUIT WAS CLEARLY CORRECT IN HOLD-

ING THAT PETITIONER THORNBERRY WAS NOT ENTI-

TLED TO SUMMARY JUDGMENT ON THE QUESTION OF

STITT ietirtnensetinitnetiensiceniigtbemiatiieainnicatens 12

Il. THE UTILITIES’ CHALLENGES TO STATE STATUTES

THAT MIGHT NEVER BE APPLIED, ADMINISTRATIVE AC-

TIONS THAT MIGHT NEVER BE TAKEN, AND JUDICIAL

DETERMINATIONS THAT MIGHT NEVER BE MADE, DO

NOT WARRANT PLENARY REVIEW.. 14

A. The Ninth Circuit Was Clearly Correct in Refusing to Award

the Utilities the Anticipatory Advisory Opinions They Sought..... 15

B. Even if the Utilities’ Challenges to the Waste Disposal Law

and Three-Site Requirement Were Ripe, Plenary Review by

This Court of the Validity of Those Statutes Would be Prema-

ture 18

Ill. NOTHING IN THE MERITS OF PETITIONERS’ OMNIBUS

PREEMPTION ATTACK ON CALIFORNIA’S POWER

PLANT REGULATIONS WARRANTS THIS COURT'S PLE-

NARY CONSIDERATION . . 20

A. The Regulatory Means Chosen by California Herein Were So

Plainly Authorized by Congress Itself That Petitioners’ Only

Proper Recourse Is To That Body Rather Than to This Court..... 20

B. The Ninth Circuit’s Decision Does Not Portend Any Nation-

wide Impact of a Sort Which Might Merit Review on Certio-

rari

C. Nor Is Certiorari Warranted to Consider Hypothetical “Con-

-—- Saetonntrcemastmnmnadmineslslenanammadesoan

CONCLUSION

TABLE OF AUTHORITIES CITED

Cases

Page

Commonwealth Edison Co. v. Montana, 101 S.Ct. 2946 (1981) .......000 24

Communist Party v. Subversive Activities Control Board, 367 U.S. 1

(1961) 18

DeCanas v. Bica, 42A U.S. 351 (1976) 26

Duke Power Co. v. Carolina Environmental Study Group, Inc., 438

US. 59 (1978) 14

Exxon Corp. v. Governor of Maryland, 437 U.S. UT (1978) ......0.-ssssss0e« 25

FTC v. Standard Oil Co., 449 U.S. 232 (1980) 17

Hodel v. Virginia Mining & Reclamation Association, 452 U.S., 264

(1981) 16

Illinois v. Kerr-McGee Chemical Corp., Nos. 81-1110, 81-1152, (7th

Cir., May 4, 1982) 11, 22

Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974) 26

McCulloch v. Maryland, \7 U.S. (4 Wheat.) 316 (1819) 20

— Lynch, Pierce, Fenner & Smith, Inc. vy. Ware, 414 U.S. 117

(1973) 23

New Hampshire v. Atomic Energy Commission, 406 F.2d 170 (1st

Cir.), cert. denied, 395 U.S. 962 (1969) 26

New York Telephone Co. v. New York Labor Department, 440 US.

519 (1979) 26

Northern States Power Co. v. Minnesota, 447 F.2d 1143 (8th Cir.

1971). affd mem., 405 U.S. 1035 (1972) - 11, 21

Orr v. Orr, 440 U.S. 268 (1979) 13, 14

Pacific Gas & Electric Co. v. State Energy Resources Conservation

and Development Commission, 489 F Supp. 699 (E.D. Cal. 1980) ....... 3

_ Pacific Legal Foundation v. State Energy Resources Conservation

and Development Commission, 472 F Supp. 191 (S.D. Cal. 1979)....... 3

Perez v. Campbell, 402 U.S. 637 (1971) 22

Peterson v. City of Greenville, 373 U.S. 244 (1963) ...cccsesseesvessneesnes 13, 14

Ray v. ARCO, 435 U.S. 151 (1978) 26

Red Lion Broadcasting Co. v. Federal Communications Comm'n.,

295 U.S. 367 (1969) 22

Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) ........+0s00+ 13

Silkwood v. Kerr-McGee Corp., 667 F.2d 908 (10th Cir. 1981) ........:..0++ ll

Silver v. New York Stock Exchange, 373 U.S. 341 (1963) ......sssvessvesseeene 23

—— Eastern Kentucky Welfare Rights Organization, 426 US. 26

(1976) 14

Singleton v. Wulff, 428 U.S. 106 (1976) 14

The Montrosa v. Carbon Black Export, Inc., 359 U.S. 180 (1959) .......... 18

United States v. Nixon, 418 U.S. 683 (1974) 2

Valley Forge Christian College v. Americans United for Separation

of Church and State, Inc., 102 S.Ct. 752 (1982) 13

Village of Arlington Heights v. Metropolitan Housing Dev. Corp.,

429 U.S. 252 (1977) 13

Federal Constitutional Provisions, Statutes,

and Regulations

United States Constitution:

Article III 13, 14

Atomic Energy Act of 1954, 42 U.S.C., §§ 2011 et.seq. ........ss passim

$1, 42 US.C., § 2011

$1, 42 US.C., § 2013(d)

§ 271, 42 US.C., § 2018

§ 274, 42 US.C., § 2021

§ 274(b), 42 US.C., § 2021 (b)

§274(c), 42 US.C., § 2021 (c)

§ 274(k), 42 U.S.C., § 2021 (k) 5, 21,

Clean Air Act Amendments of 1977:

§ 116, 42 US.C., § 7416

§ 122, 42 U.S.C., § 7422

t of Energy Reorganization Act of 1977:

42 US.C., § 7112

Energy Reorganization Act of 1974:

42 US.C., § 5801

42 US.C., § 5812

42 US.C., §5814

42 US.C., § 5841

NRC Authorization Act for Fiscal Year 1980, 96th Cong., 2d

Sess. (1980)

§ 108(f)

28 U.S.C. § 1254(1)

US. Sup.Ct. Rule 19.6

10 C.F.R. §§ 51.20-51.26

State Constitutional Provisions and Statutes

Warren-Alquist State Energy Resources Conservation and Develop-

ment Act, Cal. Pub. Res. Code, §§ 25000 et seq.

not

Sera ae RRK KR RK VEuBIEL

_—

bl -

th po

SAAADAAAAALD|

§ 25524 7

25524. 1 (a) 15

25524.1 (b) 15

§ 25524.2 3, 9, 19

§ 25524.3 15

§ 25525 7

§ 25528 7, 16

§ 25532 7

N.Y. Public Authorities Law § 1005 24

Nucleonics Week,

il 29, 1982, at 9 19

and Waste Disposal Statutes, Docket Nos. 76-NL-1, 3 (1978) ........... 18

R. Stern & E. Gressman, Supreme Court Practice 54-55 (5th ed.

1978) hie

Washington Post, April 27, 1982 at 17 8

wha

No. 81-1944

No. 81-1945

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

PACIFIC LEGAL FOUNDATION, et ai,

Petitioners,

vs.

STATE ENERGY RESOURCES CONSERVATION

AND DEVELOPMENT COMMISSION, et ai,

Respondents.

PACIFIC GAS and ELECTRIC

COMPANY and SOUTHERN

CALIFORNIA EDISON COMPANY,

Petitioners,

vs.

STATE ENERGY RESOURCES CONSERVATION

AND DEVELOPMENT COMMISSION, et al,

Respondents.

Consolidated Response to Petitions for Writ

of Certiorari to the United States Court

of Appeals for the Ninth Circuit

JURISDICTION

Of the seven petitioners filing papers with this Court

herein, four were not even “parties to the proceedings

in the court whose judgment is sought to be reviewed”

(Sup. Ct. R. 19.6), and accordingly cannot seek certiorari

under 28 U.S.C. § 1254(1) to review the Ninth Circuit's

decision.' See R. STERN & E. GRESSMAN, SUPREME

' The petitioners listed in No. 81-1945 are Pacific Gas & Electric

Company and Southern California Edison Company. Four of the

= os

CourRT PRACTICE 54-55 (5th ed. 1978); cf United States

v. Nixon, 418 U.S. 683, 690-92 (1974). Thus, only the peti-

tions of Robert C. Thornberry in No. 81-1944 (“PLF’’),

and of Pacific Gas & Electric Company and Southern

California Edison Company in No. 81-1945 (“PG&E”),

are properly before this Court.’

STATEMENT OF THE CASE

Proceedings Below

Respondents, State Energy Resources Conservation

and Development Commission, et a/.,’ oppose the peti-

tions for certiorari in PLF and PG&E to review the

Ninth Circuit’s reversal of two federal district court

judgments, consolidated on appeal in the court below.

These judgments struck down, as preempted, key as-

pects of California’s system for regulating the commer-

cial generation of electricity for its people by

state-regulated utilities.

In PLF the federal district court for the Southern Dis-

trict of California had summarily voided Cal. Pub. Res.

oes listed in No. 81-1944—Pacific Legal Foundation, the

pee Sanaa, the San Diego Section of the American

Nuclear Society, and the San Diego County Building and Con-

struction Trades Council—were all denied summary judgment

by the trial court on standing on. PLF Pet. App. at 6. On

ovember 1, °979, the Ninth Circuit properly “dismissed [their]

aoeaee on the standing issue] on the ground that it was not

taken from a final Fm poe &E Pet. App. (hereinafter

a) at 8 n.11. These parties did not attempt to renew their

standing claims in connection with petitioner Robert C. Thorn-

berry’s defense below of his favorable district court judgment.

Nor do the questions presented in either petition even purport

to bring their standing claims before this Court.

* Respondents file this single brief in epqestion to both petitions.

* The respondents, hereinafter collectively referred to as “the En-

ergy Commission,” are listed in PG&E Pet. at ii.

Code § 25524.2 (“the waste disposal law’’) , by which Cal-

ifornia proposed to delay further state certification of

nuclear power plants pending federal resolution of the

nuclear waste disposal problem—a problem that could,

if unresolved, doom such plants to future interruption or

abandonment at federal insistence.‘ In PG&E the fed-

eral district court for the Eastern District of California

had invalidated the waste disposal law and 16 other

provisions of the Warren-Alquist State Energy Re-

sources Conservation and Development Act (“the War-

ren-Alquist Act”), Cal. Pub. Res. Code §§ 25500-25986,

California’s comprehensive legislative scheme for regu-

lating electric power supply.’ Both courts held that the

challenged statutes were preempted by the Atomic

Energy Act of 1954, as amended, 42 U.S.C. $§ 2011 et

seq., on the ground that the laws invaded a sphere of

exclusive federal regulatory authority under the 1954

Act, and frustrated federal objectives with respect to

nuclear power.

The Ninth Circuit reversed, rejecting these preemp-

tion holdings after ruling (1) that the district court in

PLF had erred in awarding summary judgment to

plaintiff Thornberry without conducting a trial on his

standing; and (2) that the district court in PG&E had

erred in treating as ripe for adjudication, even at the

behest of parties with standing, the host of anticipatory

* Pacific Legal Foundation, et al. v. State Energy Resources Conser-

vation and Development Commission, et al. 472 F Supp. 191

(S.D. Cal. 1979), reprinted in PLF Pet. App. at 1-18.

° Pacific Gas & Electric Co., et al. v. State Energy Resources Con-

servation and Development Commission, et. al. 489 F Supp. 699

(E.D. Cal. 1980), reprinted in App. at 55-64. Hereinafter, all

references to the provisions of the Warren-Alquist Act are to

section numbers in the California Public Resources Code.

preemption challenges made by the utility plaintiffs.

The Ninth Circuit held that only two of the 17 provisions

challenged by those plaintiffs were ripe for review—the

waste disposal law and Section 25503 of the Warren-

Alquist Act, requiring a utility to include at least three

alternative sites in its application for any proposed pow-

er plant (“the three-site requirement”). App. at 19-27.°

The court concluded that neither was preempted by the

Atomic Energy Act of 1954 because both were “enacted

for purposes other than protection against radiation haz-

ards” (id. at 2), and “do not impede congressional goals”

(id. at 46).

The Atomic Energy Act of 1954

and the Challenged Statutes

The basic allocation of state and federal authority to

regulate the commercial use of nuclear power was es-

tablished by the Atomic Energy Act of 1954. That legisla-

tion allowed industry for the first time to participate in

the development of nuclear power, authorizing private

firms to take possession of nuclear materials and to build

commercial reactors under licenses from the Atomic

Energy Commission.’ At the same time, Section 271 of

the 1954 Act expressly preserved broad state authority

over these facilities:

“Nothing in this chapter shall be construed to affect

the authority or regulations of any Federal, State, or

® The court noted that its conclusion regarding the validity of

Section 25503 “necessarily affect[ed]” Sections 25504 and 25516,

as well, since they also contained requirements relating to three

sites. App. at 23 n.22.

7 The Atomic ran Saseeenien (“AEC”) was dismantled b

Section 104 of the Energy Reorganization Act of 1974, 42 U.S.C.

Seat and its promotional functions were transferred to the

ergy Research and Development Administration. Jd. The

AEC’sr tory functions were transferred to the Nuclear Reg-

ulatory Commission (“NRC”). /d. § 5841.

ates

local agency with respect to the generation, sale, or

transmission of electric power produced through the

use of nuclear ‘facilities licensed by the [Nuclear Reg-

ulatory] Commission.” 42 U.S.C. § 2018.

In 1959, Congress made clear that any preemption of

state authority was limited to regulation of “radiation

hazards,” when it added Section 274 to the 1954 Act. 42

U.S.C. § 2021. That provision establishes a procedure (in

sub-section (b)) for delegating certain of the NRC’s

radiation protection responsibilities to the States. While

sub-section (c) of Section 274 prevents the NRC from

transferring to the States its radiation protection author-

ity with respect to the construction and operation of any

nuclear power plant, sub-section (k) contains an express

disclaimer of any intent to preempt state authority

beyond the regulation of radiation hazards:

“Nothing in this section shall be construed to affect

the authority of any State or local agency to regulate

activities for purposes other than protection against

radiation hazards.” 42 U.S.C. § 2021 (k).

Moreover, Congress has specifically authorized state

regulation even of radiation hazards in the contexts of

air pollution control and nuclear power plant emer-

gency planning.®

* Under Section 122 of the Clean Air Act Amendments of 1977—

relied on by the Ninth Circuit (App. at 33 n.28, 44), but nowhere

mentioned by any petitioner—Congress permitted the States to

regulate radioactive air emissions from nuclear power plants for

the purpose of protection against radiation hazards, authorizing

state and local see age to adopt and enforce radioactive

emission or ambient air standards more stringent than those

imposed by the federal government. 42 U.S.C. §§ 7416, 7422. Un-

der Section 108(f) of the NRC Authorization Act for Fiscal Year

1980, 96th Cong., 2d Sess. (1980), Pub. L. No. 96-295, 94 Stat. 783

1980) (relating to nuclear power plant emergency planning),

ngress ifically approved “the states’ authority to set nu-

clear toy 4 plant a and land use requirements more strin-

gent those of the NRC,” as the Ninth Circuit observed. App.

at 45. Nowhere do petitioners discuss this legislation either.

-6-

Based on its review of these enactments, the Ninth

Circuit determined—consistent with the rulings of

other circuits (see page 21 infra),—that Congress has

expressly confined the preemptive force of the Atomic

Energy Act of 1954 to certain forms of “state regulation

of radiation hazards associated with nuclear power.”

App. at 33. The States remain free under the 1954 Act to

approve or disapprove proposed nuclear power plants—

as they may approve or disapprove proposed power

plants utilizing other energy sources—from the stand-

points of cost, reliability, land-use, resource-allocation,

and other vital state policies. App. at 43.°

The provisions of state law challenged by petitioners

are part of a comprehensive energy planning and facil-

ity siting statute intended to serve these state interests.

Thus, California’s Warren-Alquist Act requires that any

utility proposing to build a power plant in the state,

whether nuclear or non-nuclear, submit data dealing

with a large number of subjects concerning the pro-

posal.'° The Energy Commission is required to make

® The Ninth Circuit acknowledged, of course, that “[s]tate regula-

tions which ses conflict with regulations of the NRC would

... . be preempted even if they were enacted for pu other

than protection against radiation hazards.” App. at 33 n.29. This

case plainly presents no such conflict. See page 23-27 infra.

a utility obtain the Energy Commission's “certification” of an

energy facility prior to commencing construction (§ 25500,

25517), and they establish a two-stage licensing process for this

purpose. The process comes with the utility’s submission of a

‘Notice of Intention” (“NOI”) to build a power plant (§ 25502).

In the NOI phase, which lasts a year, the Commission examines

the need for additional energy facilities and the relative merit of

particular sites and technologies. The provisions challenged by

petitioners specify the general contents of the NOI to be submit-

ted by the utility (§ 25504), and authorize the Commission to

seek certain additional information (§ 25511). Other provisions

merely specify the format or findings required in the Commis-

sion’s initial a, order (§ 25512), report (§ 25514), and

approval of the NOI (§ 25516).

” oe

various determinations based on this data— including,

for example, whether the supply project conforms to the

Commission’s long-range demand forerast (§§ 25523 (f),

25524). As the Ninth Circuit correctly observed, “we

have no way of knowing . . . to what purposes the in-

formation might be put . . . whether the Energy Com-

mission will ever deny certification, or whether such a

denial might be based upon impermissible reasons.”

App. at 20-21. For present purposes, what may be most

significant is the statute’s specific directive—not men-

tioned by petitioners and not yet construed by any state

court—that “[iJn no event shall the [Energy] Commis-

sion make any finding in conflict with applicable federal

law or regulation” (§ 25525) ."!

Of the two provisions in the Warren-Alquist Act held

ripe for review by the Ninth Circuit, one requires that

information be submitted on three alternative sites for

any proposed power plant (§ 25503). This three-site law

“applies to all power plants, nuclear and non-nuclear.”

App. at 41. Its purpose is not only to provide the Energy

If the NOI is approved, the we iy then file an “Application

for Certification” (“AFC ”), which commences an eighteen-

month proceeding to determine whether a permit should be

issued for the actual construction of the facility on a icular

site (§ 25519). In the AFC phase, the provisions challenged by

petitioners —_ require certain information be included

in the AFC an t the AFC be distributed to various agencies

(§§ 25519, 25520). They also require that the Commission's deci-

sion on the AFC include certain findings (§ 25523), and that the

Commission establish a “monitoring system” to ensure compli-

ance with its decisions (§ 25532).

‘! Other provisions of the Warren-Alquist Act mandate all appropri-

ate deference to relevant federal law as well. See, e.g., 25500

(certification authority vested in Energy Commission “to the

extent permitted by federal law”) ; § 95598 (Energy Commission

required to assure that areas surrounding a proposed plant will

not su uently exceed population densities specified by the

NRC and by applicable state land-use planning requirements).

Commission with “an efficient meaus of deciding where

a proposed power plant should be located” (id.) , but also

to allow the “banking” of other acceptable sites in order

to expedite future siting proceedings. It is obviously “un-

related to protection against radiation hazards.” /d. at

40-41.

Nor does the other provision held ripe for review by

the Ninth Circuit—the waste disposal law—purport to

regulate radiation hazards. As the Ninth Circuit ob-

served, the waste-disposal law is not directed at where,

how safely, or by what methods, any power plant’s ra-

dioactive wastes are to be disposed of—and, a fortiori, is

not a “regulation” of any radiation hazards associated

with such waste disposal. Rather, the waste disposal law

reflects California’s concern that federal authorities

might order the shutdown of nuclear plants generating

such wastes, if a method of waste disposal is not ap-

proved by the federal government on a timely basis.!?

As the Ninth Circuit stated:

“Until a method of waste disposal is approved by the

federal government, California has reason to believe

that uncertainties in the nuclear fuel cycle make nu-

clear power an uneconomical and uncertain source

‘2 Although the expected useful operating life of a nuclear power

reactor is approximately 30—40 years, the storage capacity on-site

for the wastes generated by the reactor is typically limited to

5-10 years accumulation. Thus, off-site storage for such wastes—

at a federally approved repository—must be made available after

that time in order to keep reactors operating. Bridenbaugh Dec-

laration § 30 [Excerpts iced on appeal (hereinafter “ER’”’)

at 257]. See also, Washington Post, April 37, 1982 at 17 (“As [s]pent

fuel from the 74 nuclear power plants around the country .. .

il[es] up in temporary storage sites,” some of the plants might

‘be forced to close.”). For instance, Virginia Electric Power

Company officials project that unless federal waste policies are

resolved, the utility may have to shut down its nuclear plant,

because it will run out of storage space for its used-up fuel. Jd.

of energy. The legislature has chosen to mandate

reliance upon other energy sources until these un-

certainties associated with nuclear power are re-

solved.” App. at 40.

Thus, the waste disposal law is concerned solely with the

existence of a federally approved waste disposal

method, “not with the adequacy of the method.” App.

at 40.'%

Petitioners’ Omnibus Preemption Challenge

Neither of the two laws sustained below, nor any oth-

ers challenged in the district courts, has ever been ap-

plied to deny or condition certification of a nuclear plant

proposed by the util’ , petitioners or by anyone else,

much less been given any authoritative construction by

a state court. The utilities assert that all their claims are

ripe because they challenge “the very existence of the

California certification system and other statutes. . . .”

13 California itself is not a probable target for ultimate disposal of

high-level nuclear wastes; the State seems “never [to have] been

roposed as the site for a permanent high-level radioactive waste

isposal facility.” Lash Affidavit € 11 (ER at 315).

e utility petitioners assert that the waste disposal law re-

quires the Energy Commission to make “‘an independent deter-

mination whether a satisfactory technology or means for the

disposal of high-level nuclear waste evists in fact.” (PG&E Pet.

at 18 (emphasis in a) . na that the Commission must

nooneeael y second-guess the safety of the technology eventually

approved by the federal government. But section 25524.2 does

not, on its face, require any such thing. Rather it merely requires

a determination that “there exists a demonstrated technology or

means for the disposal of high-level nuclear waste,” and the stat-

ute makes clear in subsection (c) that this does not mean that

actual “facilities for the application of such technology and/or

means be available” at the time this determination is made. As

the statute itself explains, the State must be assured “that the

United States through its authorized agency has approved” this

technology. Finally, it was obviously necessary in Section 25524.2

to vest some state agency—in this case, the Energy Commission

—with authority to determine whether all of these conditions for

reactor licensing had been met.

@ 19-—

PG&E Pet. at 26 (emphasis in original). The Ninth Cir-

cuit’s response was straightforward: “[a] case or contro-

versy is not presented simply because a party is subject

to a general regulatory process which, when applied to

the specific facts developed in some future administra-

tive proceeding, might cause a state agency to take a

particular action which some court might thereafter de-

termine to be unconstitutional.” App. at 22. (citation

omitted).

Petitioner Thornberry, who has not even alleged a

risk of state action directed against him, seeks to assert

derivatively the third-party rights of the regulated utili-

ties—and claims both standing to enforce such rights

and the ripeness of his attempt to do so—on the theory

that the Sundesert nuclear project on which he had

been employed was cancelled partly because of the

pendency of the waste disposal law. Given the factual

dispute as to whether the project would have been can-

celled even without that law,'* and given that Thorn-

berry had not even “alleged . . . that he might get his

job back if the Sundesert project were revived” (App. at

16), the Ninth Circuit held summary judgment in

Thornberry’s favor on the issue of standing to have been

improper. /d. at 13.

REASONS FOR DENYING THE WRIT

Several circuit courts of appeals have consistently

held that the Atomic Energy Act of 1954 impliedly

preempts state regulation of radiological hazards but

that Congress has expressly declined to preempt other

‘4 The Ninth Circuit noted there was evidence in the record from

which a trier of fact could infer that the Sundesert project was

financially infeasible. App. at 11-13.

ths.

forms of state regulation of electric power generat.un by

nuclear plants. Northern States Power Co. v. Minnesota,

447 F.2d 1143, 1150 (8th Cir. 1971), affd mem., 405 U.S.

1035 (1972); Silkwood v. Kerr-McGee Corp., 667 F.2d

908, 920 (10th Cir. 1981); Z//inois v. Kerr-McGee Chemi-

cal Corp., Nos. 81-1110, 81-1152 (7th Cir., May 4, 1982).

The Ninth Circuit’s decision is well within this consensus

as to the scope of federal preemption under the Atomic

Energy Act. Petitioners’ dissatisfaction with the result

reached by the Ninth Circuit in applying these clear

rules is not accompanied by any demonstration of con-

flict with the decisions of another circuit or of this Court

that would justify granting a writ of certiorari.

Certainly, the “across-the-board” character of the

challenged statutes (PLF Pet. at 14) does not lend any

national significance to the Ninth Circuit’s otherwise

unremarkable decision. The State’s undeniable ability to

refuse to license proposed nuclear plants, one by one, as

inconsistent with the State’s power needs, its environ-

mental concerns apart from radiation hazards, or its

cost-benefit assessments of alternative means of gener-

ating power (PG&E Pet. at 16-17) renders protests

about “across-the-board” regulation simply a quarrel

with the State’s chosen mechanism for producing an

indisputably lawful result.

Federal judicial action to deprive a State of the option

to proceed with caution in licensing new nuclear plants

for commercial power generation on the record in this

case would require both an unprecedented disregard of

Article III limits on federal court intervention and an

override of Congress’s explicit allocation of authority

between the NRC and the States with respect to nuclear

power regulation. The Ninth Circuit, in declining peti-

= =

tioners’ invitation to take these two steps—steps that

would swell federal judicial power at the expense of

both Congress and the States—has vindicated well-set-

tled and important principles of federalism and of the

separation of powers, but has provided no occasion for

plenary review by this Court.

|. THE NINTH CIRCUIT WAS CLEARLY CORRECT IN HOLDING THAT

PETITIONER THORNBERRY WAS NOT ENTITLED TO SUMMARY

JUDGMENT ON THE QUESTION OF STANDING.

On motion for summary judgment below, petitiones

Thornberry claimed standing on the grounds that (1,

the waste-disposal law caused SDG&E, his employer

(but not a party below), to cancel the Sundesert nuclear

power plant project on which he had been employed as

a nuclear engineer, and (2) the cancellation of the

Sundesert project caused Thornberry to lose his job.

App. at 11. The Ninth Circuit noted that the Energy

Commission disputed both of these premises (id.), and

concluded that these material questions of fact as to

“causation” should have precluded a grant of standing

to Thornberry on summary judgment.'® /d. at 13. The

Ninth Circuit further noted that Thornberry had not

demonstrated any likelihood that Sundesert would pro-

ceed if the nuclear waste disposal law was invalidated,

1S Observing that it could “affirm a grant of summary judgment

only if the material facts are undisputed and the moving | pm

is entitled to judgment as a matter of law” (App. at 11), and that

it was required to “view all evidence and factual inferences in

the light most favorable to the non-moving party, the Energy

Commission” (id.), the Ninth Circuit noted the “material ques-

tions” of causation raised by the Energy Commission’s evidence

(1) that the Sundesert project was independently doomed by

financial obstacles and (2) that the Sundesert project had been

cancelled + sapatenetne meee I the pendency of a bill in the Califor-

my ered exempting the project from the waste disposal law.

. at 11-16.

and that Thornberry had “not even alleged, much less

proved, that he might get his job back if the Sundesert

project were revived” Jd. at 16. Thus, the Ninth Circuit

concluded that “[oJ]n the record before us, it is a mere

speculative possibility that the relief sought would rem-

edy Thornberry’s injury.” Jd. at 16. The court held that

“{slummary judgment on the issue of standing was

therefore improper.” /d. at 13.

In light of this Court’s frequent admonition that, as an

“irreducible minimum,” Article III requires a plaintiff

invoking federal judicial power to demonstrate both

that his injury “fairly can be traced to the challenged

action” and that the injury “is likely to be redressed by

a favorable decision” ( Valley Forge Christian College v.

Americans United For Separation of Church and State,

Inc., 102 S.Ct. 752, 758 (1982)), the Ninth Circuit was

clearly correct in holding that the district court had

erred in granting Thornberry’s motion for summary

judgment on the standing issue while material issues of

fact remained as to causation and redressability.'® The

‘6 The cases cited by petitioner Thornberry (PLF Pet. at 16-19)

represent no departure from this Court’s well-established re-

dressability requirement. In Village of Arlington Heights v. Met-

ropolitan Housing Development Corp., 429 U.S. 252, 262 (1977),

this Court held that a “substantial likelihood” existed that re-

spondent’s proposed housing project would proceed if the of-

fending ordinance were invalidated. Similarly, in Duke Power

Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59,

74-75 (1978), the Court found a “substantial likelihood” that

invalidation of the Price-Anderson Act would block two nuclear

power plants which respondents viewed as a threat to them. And

in Regents of the University of California v. Bakke, 438 U.S. 265,

281 n.14 (1978), this Court ruled that the injury to respondent of

being excluded from oy ye for all 100 ay in a medical

school class on the basis of his race was “likely to be redressed”

by invalidating the special program prescribing his exclusion.

eterson v. City of Greenville, 373 U.S. 244 (1963), and Orryv. Orr

440 U.S. 268 (1979), are altogether inapposite. In Peterson, this

Court held, inter alia, that trespass convictions that had the effect

of enforcing a city ordinance mandating racial discrimination

district court’s ruling was indeed “gratuitous and thus

inconsistent with the Article III limitation.” Simon v.

Eastern Kentucky Welfare Rights Organization, 426 U.S.

26, 38 (1976) .7

For these reasons, certiorari must be denied in PLF:

As discussed below, it must also be denied in PG&E.'*

ll. THE UTILITIES’ CHALLENGES TO STATE STATUTES THAT MIGHT

NEVER BE APPLIED, ADMINISTRATIVE ACTIONS THAT MIGHT NEV-

ER BE TAKEN, AND JUDICIAL DETERMINATIONS THAT MIGHT

NEVER BE MADE, DO NOT WARRANT PLENARY REVIEW.

The utility petitioners offer no persuasive reasons for

this Court to review now those matters which were held

were invalid regardless of the motives of the private actor invok-

ing the trespass statute. 373 U.S. at 248. And in Orr, the Court

re to bar challenges to underinclusive statutes simply be-

cause a state could theoretically thwart any successful plaintiff by

Spey. - invalidated law to the plaintiff's disadvantage. 440

». at .

‘7 The Ninth Circuit also pointedly observed that Thornberry’s al-

leged injury “result{ed) from the independent action of a third

party not before the court’—SDG&E, Thornberry’s erstwhile

employer. App. at 15 n.17. In this respect, Thornberry’s suit may

be seen as an effort to invoke SDG&E’s rights under the Atomic

paetay Act, although Thornberry offers no reason to depart

from the settled principle that “one party [should ordinarily be

denied] standing to assert the legal rights of another” (Duke

Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S.

59, 80 (1978))—a principle of avoiding “adjudication of rights

which those not before the Court may wish to assert, and [of

providing] the assurance that the most effective advocate of the

rights at issue is present to charnpion them.” /d., citing Singleton

v. Wulff, 428 U.S. 106, 113-14 (1976) (plurality opinion). For this

independent reason, Thornberry was properly denied standing.

‘8 Thornberry is clearly not entitled to seek review in this Court of

the Ninth Circuit's substantive rulings unless the Ninth Circuit

erred in holding that Thornberry had failed to establish his own

standing. Thus, it makes no difference that in the wake of the

Ninth Circuit’s substantive rulings “it would be futile for Robert

Thornberry to further attempt to challenge a state law which has

already been ruled valid.” PLF Pet. at 19. Inasmuch as the Ninth

Circuit's reversai in PLF on the standing issue left on/y the sub-

stantive issues in PG&E appropriate for review by the Ninth

Circuit, Thornberry is in effect claiming the right to seek review

of the Ninth Circuit’s disposition of a case to which he was not

a party.

- =

unripe for federal adjudication by the Ninth Circuit.

Indeed, even their challenges to the two provisions

which the Ninth Circuit held ripe for such adjudication

do not present an appropriate occasion for this Court’s

plenary review at this time.

A. The Ninth Circuit Was Clearly Correct In Refusing to Award the

Utilities the Anticipatory Advisory Opinions They Sought.

Twelve of the 15 provisions of the Warren-Alquist Act

which were deemed unripe for review by the court be-

low merely established licensing procedures or informa-

tion-gathering requirements. The Ninth Circuit was

properly unwilling to speculate as “te what purposes the

information might be put” in this “certification system,”

or to guess whether or why a power plant proposed by

the utility petitioners might ever be rejected. App. at

20-21. Two other provisions not considered timely for

adjudication are no longer being challenged by the util-

ity petitioners.'® The final unripe provision, dealing

with the acquisition of development rights in the vicin-

ity of nuclear power plants, was also one which had not

yet been applied or interpreted by the State and might

never have to be invoked. Thus the court of appeals

concluded that the question of its constitutionality

“would be better decided after the statute has been

1® Section 25524.1(a) predicated California’s future reliance on nu-

clear power plants that require “reprocessing” of fuel upon the

establishment of the necessary technology, and Section 25524.3

ordered a study of the feasibility of undergrounding or berm

containment o a soe plants. The utility petitioners

have abandoned any challenge to these provisions in their peti-

tion (PG&E Pet. at 6 n.5), but maintain their challenge to sub-

section (b) of Section 25524.1, peng bey the storage capacity

for “spent fuel” at the reactor site. The Ninth Circuit correctly

held, however, that the challenge to Section 25524.1(b) was not

ripe for review “[b]ecause we cannot know whether the Energy

Commission will ever find a nuclear plant’s storage capacity to

be inadequate.” App. at 25.

-16-

applied.” Jd. at 22.?°

Because these utilities have never pursued certifica-

tion of a nuclear project under these laws (see notes 21,

25 infra), they are reduced to arguing that “the very

existence” of these statutes causes them judicially cogni-

zable injury. PG&E Pet. at 26 (emphasis in original).

Thus, in lieu of seeking certification of a power plant

from the Energy Commission, petitioners requested an

advisory opinion from a federal district court—despite

“this Court’s oft-repeated admonition that the constitu-

tionality of statutes ought not to be decided except in an

actual factual setting that makes such a decision neces-

sary.” Hodel v. Virginia Mining & Reclamation Associa-

tion, 452 U.S. 264, 294-95 (1981).

It is for want of any concrete application of the laws

challenged below that these petitioners have been com-

pelled to make the myriad, speculative, and broadly

framed preemption claims asserted in this case. Accord-

ingly, because petitioners have not awaited—or even

sought—the kind of definitive state agency or judicial

construction of the statutes which would appear in a

decision approving or rejecting a nuclear plant, petition-

20 This provision of the Warren-Alquist Act, Section 25528, again

— to all kinds of power plants, and in the case of nuclear

— simply requires an applicant, as a prerequisite for Ener

mmission approval, to agree to acquire such rights as ma

needed to assure that areas surrounding a ech. lant will not

subsequently exceed population densities specified by the NRC

itself and by all applicable state land-use planning requirements.

The Ninth Circuit noted that the Energy Commission was direct-

ed to waive the development-rights acquisition requirement un-

der certain circumstances, and that the statute contemplates that

the Energy Commission “will ordinarily follow NRC standards

on population yee ol App. at 22-23. Moreover, state authority

to impose such land-use restrictions was clearly confirmed by

Congress in the NRC Authorization Act for Fiscal Year 1980,

discussed in note 8 supra.

-17-

ers cannot point to a single instance in which the Energy

Commission has regulated radiation hazards.?! For this

reason, petitioners sidestep the unbroken line of judicial

precedents limiting the zone of federal preemption in

this area to radiation hazard control, and seek to extend

that zone across some undefined but unmistakably wid-

er terrain. Ultimately, petitioners’ claims could not be

considered ripe for review unless one were to accept

their radically expansive notion that there is something

furrdamentally awry in the mere fact that there “coexist

two regulatory agencies—one federal and one state” —

or in the fact that a public utility can be “required to

serve two exacting taskmasters.” PG&E Pet. at 9, 4-5.

Such assertions are simply too naive to merit this Court’s

plenary attention.??

21 In the absence of such a final decision, the utilities rely heavily

on speculation arising out of a single incident—a dispute

between the Commission and PG&E. over the contents of the

initial application for a power plant known as the Stanislaus

Project. PC&E Pet. at 22-23. Even if petitioners’ characteriza-

tion of this incident were accepted, this Court has made clear

that an agency’s treatment of the document which initiates a

proceeding—in this case a preliminary license application—can-

not be reviewed as a definitive statement of the agency’s position

on the issues to be decided in the os. See v. Stand-

ard Oil Co., 449 U.S. 232, 239-43 (1980). Moreover, in this case the

trial court had before it uncontroverted testimony from the

Commission’s staff, regarding the Commission's legitimate pur-

pom, unrelated to radiation protection, for demanding the in-

ormation in question. See Direct Testimony of Gary Simon, pp.

81-100 (Jan. 7, 1980).

22 The Ninth Circuit similarly refused to allow the utility petitioners

to “establish a justiciable controversy by simply asserting that the

risk of future harm causes them a present injury.” App. at 22.

Beyond the claim that all 15 statutes deemed unripe by the Ninth

Circuit stand in the aggregate as an “absolute barrier” to their

oor petitioners make no attempt to show that the supposed

dships of participating in an Energy Commission siting pro-

a constitute anything beyond a a and annoy-

ance of litigation [which] is ‘part of the social burden of living

under government.’ ” v. Standard Oil Co., 449 U.S. 232, 244

(1980). Nor is there anything in the findings of the trial courts

below which made it inappropriate for the Ninth Circuit to ex-

amine the differences in the statutes before it to determine

o IBa

B. Even if the Utilities’ Challenges to the Waste Disposal Law and

Three-Site Requirement Were Ripe, Plenary Review by This Court

of the Validity of Those Statutes Would be Premature.

While the Ninth Circuit held that the utilities’ chal-

lenges to the waste disposal law and the three-site re-

quirement were ripe for adjudication, they are surely

premature for review by this Court on certiorari while

there remain major unanswered questions as to how

those laws will be interpreted by either the Energy

Commission or the State’s courts—especially in light of

the Warren Alquist Act’s repeated injunctions to the

Energy Commnission to comply with federal law. As this

Court has observed, even resolution by this Court of

“questions of public importance . . . can await a day

when the issue is posed less abstractly” than it plainly is

here. The Montrosa v. Carbon Black Export, Inc., 359

U.S. 180, 184 (1959) (dismissing certiorari as improvi-

dently granted).

Thus, although the petitioning utilities now complain

that the waste disposal law prevents them from plan-

ning for nuclear power plants until the Energy Commis-

sion has determinea that a means of waste disposal

exists, over four years ago these same petitioners argued

before the Energy Commission that it could even then

affirmatively find that the nuclear waste disposal tech-

nology required by the waste disposal law already exist-

ed.27>. While the Energy Commission has always

disagreed with this contention, had petitioners pursued

which claims “would be illuminated by the development of a

better factual record” (App. at 20) and thus should await applica-

tion by the agency. Cf Communist Party v. Subversive Activities

Control Board, 367 U.S. 1, 71 (1961).

23 See Petition for Reconsideration in the Matter of Implementa-

tion of Nuclear Reprocessing and Waste Disposal Statutes, Dock-

et Nos. 76-NL-1, 3 (1978).

ia.

this argument in state court to a favorable conclusion,

any question of preemption involving that provision

could have been mooted. Even if the Ninth Circuit was

correct in ruling that the district court in PG&E “did not

abuse its discretion in declining to abstain” (App. at 27

n.24), the case for this Court’s discretionary review is

gravely weakened by the absence of any definitive state

court ruling on this question of state law. Moreover,

there is no reason to assume in advance—as the utilities

apparently do (see PG&E Pet. at 18-19) that the Ener-

gy Commission or the California Legislature would ever

determine that a waste disposal technology does not

exist if the federal government at some later date finds

that one doe. .** Similarly, there is no reason to hypoth-

esize, as the utilities do (see PG&E Pet. at 20), any

conflict between California’s requirement of three sites

and the NRC’s requirement of one—in advance of the

actual siting proceedings that would consider particular

sites.?®

24 As the Ninth Circuit noted, “[sJuch a possibility need not concern

us . . . [since] it will be time to consider any future conflicts if

and when they arise.” App. at 40 n.35. Indeed, although the Ninth

Circuit held the waste dis law ripe for review, its opinion

shows some hesitancy in doing so:

“Section 25524.2 does not have any immediate impact on the

utilities; they may continue to submit notices of intention and

app ications for certification for their proposed nuclear plants,

and the Energy Commission must still receive and process the

notices and applications even though the required findings have

not been made. . . . No plants may be certified until the find-

ings are made, but the utilities concede that their pro

. —— are many years from being eligible for certification.” App.

at 26.

Indeed press accounts of this law have noted that “[n]o particu-

lar plant is threatened by the moratorium [under the waste dis-

posal law] since plants under construction are not affected and

no new nuclear power plants are planned in California in the

foreseeable future.” Nucleonics Week, April 29, 1982, at 9.

25 Indeed, there was uncontradicted evidence in the trial court of

efforts by the Energy Commission, PG&E, and the NRC to coor-

dinate the siting proceedings of the two agencies in dealing with

the Stanislaus project (see note 21 supra). See Hahn Declaration

_20-

Inasmuch as the waste disposal law and the three-site

requirernent have never been construed or applied in

any such certification proceedings and have never been

reviewed by the California Courts, the Ninth Circuit's

substantive assessment of the reach of the Atomic Ener-

gy Act of 1954 with respect to those laws is at best prema-

ture for plenary review by this Court.?®

Whatever one’s views of the merits, therefore, certio-

rari should be denied for these reasons.

ill. NOTHING IN THE MERITS OF PETITIONERS’ OMNIBUS PREEMP-

TION ATTACK ON CALIFORNIA'S POWER PLANT REGULATIONS

WARRANTS THIS COURT'S PLENARY CONSIDERATION

A. The Regulatory Means Chosen by California Herein Were So Plain-

ly Authorized by Congress Itself that Petitioners’ Only Proper Re-

course Is to That Body Rather than to This Court.

Nothing in either of the petitions filed herein suggests

a need for this Court’s plenary review of the Ninth Cir-

cuit’s analysis of the scope of federal preemption under

5-14 [ER at 264-70]. PG&E aborted this coordination effort by

ling this suit, although its chief supply planner had written the

NRC to say, “I see no procedural conflicts that should occur

between the re Commission’s and the NRC’s review proc-

esses... .” Id, . D [ER at 278]. Moreover, the characteriza-

tion of the NRC’s pr ures as requiring only one site may itself

be an exaggeration given NRC regulations calling for informa-

tion from applicants relating to “alternatives to the preposed

action.” See 10 C.F.R. §§ 51.20-51.26.

26 Although respondents argued below that neither of these two

laws was ripe for review, they have not cross-petitioned from the

Ninth Circuit’s contrary ripeness holding, believing that no issue

worthy of certiorari is poe by that ey in light of the

Ninth Circuit’s favorable ruling on the merits. Respondents ac-

knowledge, however, that lack of ripeness, rather than absence

of an implied cause of action for private enforcement, was the

bar to the utilities’ invocation of the Atomic Energy Act of 1954.

For the utilities relied on the Atomic Energy Act of 1954 and the

Supremacy Clause only defensively, cf McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819), rather than “claiming enforce-

ment rights under the [1954] Act.” App. at 52 (Ferguson, J.,

concurring). That California has yet to move against these utili-

ties may make such reliance premature, but it does not transgress

limits on inference of positive causes of action.

= 2

the Atomic Energy Act of 1954, or of the propriety of the

state authority exercised in the waste disposal law and in

the three-site requirement. Indeed, despite petitioners’

exertions to make this case appear otherwise, the instant

dispute is not truly between California and Congress,

but rather between the State and certain of its own

regulated electric utilities. Those utilities evidently wish

to make their own determinations as to electricity sup-

ply in the case of nuclear power plants, without the usual

accountability to the State that licenses these utilities to

meet its power needs. As the Ninth Circuit carefully

explained, however, Congress has amply authorized the

States to make just the sorts of decisions upheld below

under Sections 271 and 274(k) of the Atomic Energy Act

of 1954,?7 and, indeed, has authorized the States to

make decisions regarding control of radiation hazards

under the Clean Air Act Amendments of 1977 and the

NRC Authorization Act for Fiscal Year 1980. See App. at

29-33, 44-45; see also note 8 supra.

Nor does the decision below conflict with any ruling

27 The utilities’ assertion that Section 271 protects a State’s authority

over such electric power only “after it is generated” (PG&E Pet.

at 14n.11, emphasis in original) is plainly contradicted by Section

271’s express reservation of state authority over electric power

“generation” as such, and finds no support in any decision of this

Court or any other. Likewise the utilities’ assertion that Section

274(c) was “intended to preserve the exclusivity of the NRC's

jurisdiction” in areas beyond radiation hazards ( E Pet. at 17

(emphasis in original) ) ape the fact that Section 274 by its

terms deals only with the regulation of “radiation hazards.”

Moreover, Dw only logically acceptable reason for inclusion of

subsection (k) . . . was to make it clear that Congress was not,

by subsection (c) of the 1959 amendment, in any way further

limiting the power of the states to — activities, other than

radiation hazards, associated with those areas over which the

AEC was forbidden by that subsection to relinquish its control.”

Northern States Power Co. v. Minnesota, 447 F.°4 1143, 1150 (8th

= 1971), affd mem., 405 U.S. 1035 (1972) (emphasis in origi-

~29 —

of this Court or of any other circuit. While the utility

petitioners attempt to conjure up a conflict between the

Ninth Circuit’s decision and that of the Eighth Circuit in

Northern States Power Co. v. Minnesota, 447 F.2d 1143

(8th Cir. 1971), aff'd mem., 405 U.S. 1035 (1972) (see

PG&E Pet. at 10), in fact the Ninth Circuit expressly

followed the decision in Northern States. App. at 35. As

the Seventh Circuit recently stated in J//inois v. Kerr-

McGee Chemical Corp., Nos. 81-1110, 81-1152, Slip Op.

at 17 (7th Cir., May 4, 1982), “the Ninth Circuit agreed

with the Eighth Circuit in Northern States that Con-

gress intended the Atomic Energy Act to preempt state

regulation of radiation hazards.” 2°

The utility petitioners’ claims of preemption under

the Atomic Energy Act are ultimately premised not on

28 Even petitioner Thornberry agrees with this proposition (PLF

Pet. at 7), although he purports to discern in the Ninth Circuit's

review of the legislative history of the waste disposal law a viola-

tion of this Court's decision in Perez v. Campbell, 402 U.S. 637,

651-52 (1971). Thornber:, would have preferred that the Ninth

Circuit give less credence to that law’s actual history in deter-

mining its purposes. PLF Pet. at 11. In his view, the Ninth Cir-

cuit should have divined those purposes from an analysis of the

text of another measure, Proposition 15, which was in fact defeat-

ed (id. at 10)—despite this Court’s observation that “unsuccess-

ful attempts at legislation are not the best of guides to legislative

intent.” Red Lion Broadcasting Co. v. Federal Communications

Comm n, 295 U.S. 367, 381 n.11 (1969). Nothing in Perez requires

that this bizarre mode of statutory construction be utilized in a

preemption case. Rather, the Court there determined that the

state law obstructed a federal objective and then held that it was

immaterial whether the State’s purpose was to obstruct the pur-

pose of the federal law or not. If the Atomic Energy Act in fact

contained a federal pro-nuclear mandate, intended to override

all state objections based on need, cost, or reliability, then Perez

might indeed make the State’s purposes in regulating nuclear

facilities irrelevant. But the Atomic Energy Act manifestly con-

tains no such mandate (see note 30 infra), and Perez surely does

not require that the State’s purposes of regulation be ignored

when Congress has expressly chosen such purposes in tion

274(k) as the dividing line between preempted and non-

preempted regulation.

» 3 o

any plausible interpretation of the 1954 Act, but on these

petitioners’ extravagant notions of what “preemption”

is all about. Thus, while refusing to acknowledge the

express limitations on preemption stated in the Atomic

Energy Acct itself, the utilities appear to believe that the

mere overlap in the subject matters of regulation

between federal and state authorities somehow requires

the ouster of all state authority across this wide realm.

See, e.g., PG&E Pet. at 4,21. The Ninth Circuit correct-

ly rejected this unprecedented approach, and con-

ducted instead a careful and detailed assessment of the

particular interests and objectives underlying the fed-

eral and state enactments at issue, in an effort to “recon-

cile ‘the operation of both statutory schemes with one

another rather than holding one completely ousted.’ ”

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414

U.S. 117, 127 (1973), quoting Si/ver v. New York Stock

Exchange, 373 U.S. 341, 357 (1963). See App. at 37-46.

When thus understood, petitioners’ claims merit no

further judicial review. If these utilities seek relief from

the specific forms of state regulation upheld below, they

should be petitioning Congress and not this Court.

B. The Ninth Circuit's Decision Does Not Portend Any Nationwide Im-

pact of a Sort Which Might Merit Review on Certiorari.

It goes without saying that the decision below—

upholding two aspects of California’s system for regulat-

ing its electric utility companies—is of moment to Cali-

fornia and the utilities it regulates. But the utilities’

assertion that this decision will “sound the death knell”

for nuclear power in California (PG&E Pet. at 9) and

petitioner Thornberry’s purported concern about “the

possibility that it will be applied on a national basis”

(PLF Pet. at 14), could be taken seriously only if the

sit.

basic tenets of the Atomic Energy Act of 1954 were

systematically ignored.

Congress never contemplated that the Atomic Ener-

gy Act of 1954 would deprive States of their right to

determine whether (and to what extent) their energy

needs should be met by nuclear power or by some other

energy tec':nology.?® Indeed, the preservation of this

traditional sphere of state authority was the manifest

aim of Congress in including Sections 271 and 274(k) in

the Act. 42 U.S.C. §§ 2018, 2021 (k).°° Moreover, Con-

2° Even the utilities concede state “authority or responsibility to

make decisions concerning the need for additional electric pow-

er generating capacity, the absolute or relative cost acceptability

of a nuclear plant, electric power ae sen) . . . [and] the sale

or transmission of electric power produced by nuclear facilities.”

PG&E Pet. at 16-17. Of course, this kind of authority can be

exercised most directly by any State choosing to perform itself all

of the functions of an electric utility and to exercise all of the

management prerogatives for planning and yee new gener-

ating capacity. Cf N.Y. Pub. Auth. Law § 1005 (establishing pub-

lic power authority). Petitioners do not deny that any State could

e such a choice and could thereupon limit, for any reason of

state energy policy, the amount of public resources invested in

nuclear power plants. On the other hand, the fact that the State’s

electrical energy supply is provided by state chartered utilities

rather than a state agency obviously does not in itself evoke any

limitation in the Atomic Energy Act upon the State’s authority

to direct choices of sites or selections among energy technologies.

3° These provisions in themselves preclude any inference of “an

intent to promote nuclear power at all costs” (App. at 42) merely

from the broad statements of policy contained in the 1954 Act.

Thus, notwithstanding Congress’s intention in 1954 to encourage

rivate industry to enter the nuclear field (e.g., 42 U.S.C.

'9013(d) ) or to direct the development of nuclear power “so as

to promote world peace, oo ones the general welfare, increase

the standard of living, and strengthen free enterprise” (id.

§ 2011), this Court only this term refused to find federal

reemption of state energy legislation merely on the basis of

“general statements” of encouragement of an energy source in

federal legislation. Commonwealth Edison Co. v. Montana, 101

S.Ct. 2946, 2962 (1981). The Court held that such general state-

ments—in that case dealing with another energy source, coal—

do not “demonstrate a congressional intent to preempt all state

a that may have an adverse impact on the use of coal.”

-25-

gress has made clear in subsequent enactments that

there is no national objective which favors the develop-

ment and deployment of nuclear energy as a source of

commercial electricity at the expense of any other con-

siderations in a State’s energy or environmental policy.*!

In light of the Clean Air Act Amendments of 1977, 42

U.S.C. §$§ 7416, 7422, and the NRC Authorization Act for

Fiscal Year 1980 (see ncte 8 supra), the actions Califor-

nia has taken here pale beside those a State could plainly

take with Congress’s blessing under these laws—even to

the point of “keep[ing]

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