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Pacific Legal Found. v. State Energy Resources Conservation & Dev. Comm'n

Citation: 11 ELR 21070
No. Nos. 79-3365 et al., 659 F.2d 903/16 ERC 1513/(9th Cir., 10/07/1981) Rev'd

The Ninth Circuit Court of Appeals reverses two district court opinions that held that California's Warren-Alquist Act, which imposes regulatory requirements upon nuclear and other electrical generating plants, is preempted by the Atomic Energy Act. Before turning to the merits, the court rules that a private engineer who allegedly lost his job as a result of the challenged laws does not have standing to sue. No clear causal relation between the laws and his loss of employment has been shown; even if such a showing had been made, it is far from certain that a favorable judgment would restore his job. Two California utilities, on the other hand, do have standing because the laws have been shown to pose an insuperable barrier to their plans to construct new nuclear plants. The court declines to reviewthe statutory requirement that proposed power plants undergo a certification process. Since no such certification has ever been sought, the question is not ripe for adjudication. Similarly, it would be premature to review the requirement that power plant owners acquire development rights adjacent to power plants in order to limit population densities. Considerations of ripeness, however, do not prevent the court from reviewing the requirement that utilities present at least three alternative sites for proposed plants. The court also declares unripe challenges to the statutory prohibition against nuclear plants requiring spent fuel reprocessing and the requirement that the state energy commission certify the adequacy of each nuclear plant's spent fuel storage capacity. The parties' dispute over the moratorium against new nuclear plant construction pending the completion of a report to the legislature, which has already been delivered, is moot. However, the court finds no reason not to address the validity of the statutory prohibition against nuclear plant construction until a federally approved method of nuclear waste disposal has been developed. The court commences its preemption analysis by examining the Atomic Energy Act to determine the nature and scope of the regulatory powers allocated to the states rather than the federal government. The court reads the Act and its legislative history to evince a clear congressional intent to preempt state regulatory powers in the area of radiation hazards only, and to preserve the powers of the states to regulate nuclear plants for any other purpose. The laws at issue, the court determines, are not concerned with radiation hazards and are therefore valid. The moratorium on construction pending the development of satisfactory waste disposal methods is aimed not at public safety but at the present uncertainty in the nuclear fuel cycle. Further, the provision does not require the state to determine the adequacy of existing disposal methods, but allows the federal government to make that determination. The requirement that utilities submit three alternative sites for proposed plants applies to nuclear as well as nonnuclear plants, and is designed to promote rational land use rather than safety from radiation hazards. The court rejects the argument that the state laws have been implicitly preempted because they conflict with the congressional policy to promote nuclear power at all costs. The Atomic Energy Act and intervening federal legislation show not only that there is no such policy, but that the states have been given an important role in determining whether and how to proceed with the development of nuclear energy.

A concurring opinion agrees with the majority's ruling on the merits but would find that appellees had no private right of action under any applicable statute.

[One of the opinions reversed by the Ninth Circuit is reported at 9 ELR 20149; the issues raised in this case are analyzed at 9 ELR 10045 — Ed.]

Counsel for Appellants
Roger Beers, Kathryn B. Dickson
396 Hayes St., San Francisco CA 94102
(415) 861-1401

Laurence H. Tribe, Chief Appellate Counsel
Griswold Hall 307, Harvard Law School, Cambridge MA 02138
(617) 495-3100

Antonio Rossman, Special Counsel
445 Bush St., San Francisco CA 94108
(415) 421-8844

William Chamberlain, General Counsel
California Energy Commission
1111 Howe Ave., Sacramento CA 98525
(916) 920-6811

Counsel for Appellees
John R. McDonough, Laurence F. Jay
Ball, Hunt, Hart, Brown & Baerwitz
450 N. Roxbury Dr., Beverly Hills CA 90210
(213) 278-1960

Raymond Momboisee
Pacific Legal Foundation
455 Capitol Mall, Sacramento CA 95814
(916) 444-0154

Before FLETCHER and FERGUSON, Circuit Judges, and FITZGERALD,* District Judge.