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Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n

ELR Citation: 13 ELR 20519
Nos. No. 81-1945, 461 U.S. 190/18 ERC 1991/(U.S., 04/20/1983) Aff'd

The Supreme Court, affirming the Ninth Circuit, 11 ELR 21070, rules that a provision of California's Warren-Alquist Act, which conditions the construction of nuclear plants on findings by the State Energy Resources Conservation and Development Commission that adequate means of nuclear waste disposal are available, is not preempted by the Atomic Energy Act (AEA). First, the Court rules that the preemption challenge to the waste disposal provision is ripe. The question of preemption is predominantly legal and therefore fit for judicial review. In addition, it would impose substantial hardship on the utilities to postpone review. However, a challenge to the interim storage provision is not ripe. Judicial consideration of that provision, which directs the state energy commission to make determinations of adequate interim storage on a case-by-case basis, should await a specific ruling from the state.

The Court then rejects petitioners' three arguments that the AEA preempts the state law. First, the Court rejects the argument that the state statute falls within a field the federal government has preserved for its exclusive control. The Court notes that the AEA does not expressly require states to authorize nuclear power plants or prohibit states from denying certification. Instead, the AEA provides for dual regulation of nuclear power. The legislative history of the Act supports the conclusion that Congress intended the federal government to have exclusive authority only over regulation of construction, operation, and associated radiological safety concerns, while the states retain their traditional authority over the need for power, the type of facility to be licensed, and other economic considerations.

As to the California statute, the Court notes that a state moratorium on nuclear construction based on safety considerations would be preempted because the AEA has occupied the entire field of nuclear safety. However, the Court accepts the Ninth Circuit's ruling that the California statute was aimed at economic problems associated with waste disposal, not at radiation hazards. The Court refuses to inquire more deeply into the motives of the legislature since not only would such a determination be difficult, but it would be pointless so long as the state retains authority to halt nuclear power by denying state certification in individual proceedings.

The Court next rejects the argument that the California statute conflicts with federal regulation of nuclear waste disposal and the Nuclear Regulatory Commission's (NRC's) decision to license reactors despite uncertainty surrounding waste disposal. The NRC's decision indicates its determination that it is safe to proceed, not that it is economically wise to do so. The Nuclear Waste Policy Act, a 1982 federal commitment to develop safe long-term nuclear waste disposal facilities, does not preempt the states' role in economic regulation, though it may convince states that sufficient federal storage is now available to make reactors economical.

Finally, the Court rejects the argument that the California statute frustrates the purpose of the AEA to promote nuclear power. The AEA does not require nuclear power to be promoted at all costs. Indeed, Congress has left the states the authority to stop development of nuclear power for economic reasons.

Justice Blackmun and Stevens concur in the judgment, but disagree with the dictum that a state may not prohibit the construction of nuclear power plants if motivated by safety concerns. The AEA only preempts the states' authority to regulate safety aspects associated with construction and operation of plants, not their authority to decide which types of power sources are safest, nor does it require states to ignore the risks of nuclear power.

Counsel for Petitioners
John R. McDonough, Howard B. Soloway
Ball, Hunt, Hart, Brown & Baerwitz
450 N. Roxbury Dr., Beverly Hills CA 90210
(213) 278-1960

Counsel for Respondents
Lawrence H. Tribe
Harvard University Law School, Cambridge MA 02138
(617) 495-3100

Roger Beers, Kathryn Burkett Dickson
Beers & Dickson
380 Hayes St., San Francisco CA 94102
(415) 861-1401

William M. Chamberlain
Office of the Attorney General
350 McAllister St., Rm. 6000, San Francisco CA 94102
(415) 557-2544

Ralph C. Cavanaugh
Natural Resources Defense Council, Inc.
25 Kearny St., San Francisco CA 94108
(415) 421-6561

Counsel for Amicus Curiae
Louis J. Claiborne, Deputy Solicitor General; John H. Garvey
Department of Justice, Washington DC 20530
(202) 633-2208

J. Paul McGrath, Ass't Attorney General; Leonard Schaitman, Al J. Daniel Jr.
Civil Division
Department of Justice, Washington DC 20530
(202) 633-3441