Judges as Statesmen: U.S. Supreme Court Jumps Standing Hurdles to Uphold Price-Anderson Act

8 ELR 10162 | Environmental Law Reporter | copyright © 1978 | All rights reserved

Judges as Statesmen: U.S. Supreme Court Jumps Standing Hurdles to Uphold Price-Anderson Act

[8 ELR 10162]

Among the flurry of decisions climaxing the last two weeks of its 1978 term, the United States Supreme Court in Duke Power Co. v. Carolina Environmental Study Group, Inc.1 affirmed the constitutionality of the Price-Anderson Act,2 which limits private liability for accidents resulting from the operation of federally licensed nuclear power plants. The Court reversed a district court's declaration that the Act was unconstitutional and void,3 finding no support for the conclusion that the Act deprived plaintiffs, a group residing in the vicinity of the defendant's4 nuclear reactor, of their Fifth Amendment rights to due process and equal protection.

In one sense, the opinion may be significant less for the actual result reached than for the road not taken: had the Act been voided, the effect might have been to add the last straw to the back of the beleaguered nuclear industry. Industry spokesmen have asserted for 20 years that without a limitation on liability for catastrophic accidents private development of nuclear energy could not survive.5 On the other hand, there is legal significance in the mere fact that the Court found plaintiffs to have standing to bring the suit. The intricate factual setting of the case required the majority to travel a lengthy and circuitous route through the foundations of the modern law of standing and federal jurisdiction in order to reach the merits. In so doing, the Court found avenues around its prior standing decisions which were not previously apparent.

The opinion does not contain a proclamation that the doors of the federal courts have been unlocked and cast open, but the result on the standing issue may signal some softening in the Court's tendency of recent years to deny standing absent a strong showing that the requested exercise of its judicial powers would directly remedy plaintiff's asserted injury. At the very least, the decision raises serious questions concerning future applications of the "zone of interests" component of the current test for standing. In either case, Duke Power will inevitably be viewed as another source of confusion in a body of law not known for clarity or logic.

In addition, there is a constitutional dimension lurking beneath the surface of Duke Power which should not be overlooked. Doubts as to whether either the Duke Power Co. or the Nuclear Regulatory Commission (NRC) were appropriately named or retained as defendants call into question whether it was within the power of the Court under Article III6 to determine the validity of the statute. The majority refused to admit that its difficulties in applying conventional standing and jurisdictional tests were constitutionally rooted. Nevertheless, such a conclusion is corroborated by the troubled concurrences of three members of the Court. The uniqueness of the constitutional questions, as well as the catastrophic specter presented by Price-Anderson no doubt contributed to these difficulties, and may tend to isolate the decision in terms of its precedential effects as well.

The Price-Anderson Act

Shortly after Congress transferred responsibility for the development of nuclear energy technology from the government to the private sector by way of the Atomic Energy Act of 1954,7 the fledgling industry returned to Congress reporting that it would not be able to succeed on its own.8 Two years of experimentation with this unfamiliar but clearly awesome source of energy suggested that while the probability of major mishaps was most likely very small, the consequences of such an accident might be truly catastrophic. These concerns were corroborated by a report released by the Atomic Energy Commission (AEO) in 1957, which concluded that a "worst case" accident involving a reactor of only one-sixth to one-eighth the size of conventional reactors could result in losses of 3,400 immediate fatalities, 43,000 radiation injuries, and $7 billion in property damage.9 Commercial insurers were unable either to assess these risks or to indemnify such claims and refused to offer more than $60 million in liability coverage per plant.10 The nuclear industry, without adequate assurances of protection against this conceivably crushing liability, was unwilling to accept the risks in developing this technology any further.

Congress responded by enacting Price-Anderson, the stated purpose of which is "to protect the public and to encourage the development of the atomic energy industry."11 Two features are central to the Act: (1) an indemnity clause providing that should a "nuclear incident" occur at any licensed facility, the federal government will assume liability for all damage claims exceeding the licensee's private insurance coverage12 and (2) a liability ceiling of $560 million beyond which neither the [8 ELR 10163] licensees nor the government must compensate the victims of such an occurrence. Should an accident involving damages of greater magnitude occur, the Act provides that Congress will review the incident and take "whatever action is deemed necessary and appropriate to protect the public from the consequences."13 The legislative history shows that by this language Congress intended to commit itself to enact some sort of compensatory measure in the event that claims from an accident exceed the ceiling, but neither the extent of the compensation nor the strength of the commitment are specified.

Despite the expressed hope that the Act's liability limitation would be necessary for only 10 years,14 it was extended in 1966 for a like term. In addition to this extension the 1966 amendments inserted within the statute a waiver-of-defenses provision,15 which in effect imposes strict liability upon licensees for any major accident. After 10 years of contemplation of the prospect of a nuclear disaster, it had become clear that recovery under state law would be inconsistent if not unavailable.16 To avoid this difficulty, the Act now requires those potentially subject to liability to enter into agreements with the NRC waiving the right to raise the defenses of lack of fault; contributory negligence, assumption of risk, or other defenses relating to the fault of the plaintiff; or running of the statute of limitations.

In 1975 the Act was again extended, this time until 1987. Like the 1966 amendments, the 1975 amendments added a new wrinkle: the "retrospective rating plan,"17 Under this scheme licensees of all commercial operating reactors are assessed a "standard deferred premium," the functional equivalent of a security bond, in the amount of $5 million.18 In the event of a catastrophe at any reactor site resulting in damages exceeding the defendant's commercial insurance coverage, the deferred premium payable by all licensees becomes due. Judgments must first be satisfied from private insurance, then from the licensees' pool, and then by the government. The effect of this provision is to reduce the potential obligation of the government to $85 million.19

In summary, several aspects of Price-Anderson clearly enhance the financial security of potential victims of nuclear disasters. The Act eliminates many of the perversities of recovery under state tort law. It ensures that claimants have access to an asset pool of at least $560 million, a fund which might not be available if a defendant were to declare insolvency or otherwise be unable to make reparations following a major incident. In addition, the statute sets up a rational scheme for distributing the asset pool,20 which protects those whose claims arise up to 20 years after the incident, and avoids a "race to the courthouse" which would inevitably lead to inequities.

On the other hand, the Act eliminates the right to sue for damages once the liability ceiling has been reached. In view of the possibility of claims totaling many billions of dollars, victims could conceivably be left with 10 cents on the dollar or less. It was to this aspect of Price-Anderson that plaintiffs directed their due process attack in Carolina Environmental Study Group, Inc. v. United States Atomic Energy Commission.21

The District Court Decision

After having unsuccessfully challenged the AEC's issuance of a construction permit for Duke Power Co.'s McGuire Nuclear Station,22 a group of property owners in the vicinity brought suit in the Western District of North Carolina seeking a declaratory judgment that the Price-Anderson Act was unconstitutional. Their argument was fairly straightforward: (1) the ongoing construction of two nuclear plants injured them in many ways, including threats to their use of the area for recreational purposes, diminished property values, and a reasonable apprehension of danger of a major accident occurring at one of the plants; (2) were it not for the umbrella of Price-Anderson the plants would not have been conceived, and without it they would not commence operations; (3) the Act's limitation on liability violates the Fifth Amendment and must be struck down, thereby remedying the asserted injury. Any one of several links in the logical chains supporting plaintiffs' legal and factual arguments was arguably weak enough to warrant an adverse judgment.23 But the district court accepted their views as to the dangers posed by the defendant's plants, adopted their interpretation of the Fifth Amendment's [8 ELR 10164] requirements, and declared the Act unconstitutional.23

The issue to which the district court directed the most attention was whether plaintiffs had standing to sue. It had been conceded by defendants that once constructed and in operation the McGuire station would be a continuing source of radiological and thermal emissions which would adversely affect the quality of plaintiffs' environment and would present a threat, however small, to their lives and health. Such effects were found to constitute "injury in fact," the first prong of the standing test which has been developed by the Supreme Court.24 The second prong, the "zone of interests" test, was totally disregarded by the court, perhaps because of the difficulties posed by that question under the facts of the case.25 Finally, to establish a solid causal connection between Price-Anderson and the plaintiffs' alleged harms, the district court quoted extensively from congressional testimony by industry representatives declaring that private development of nuclear energy would not have begun without the Act's shield and would whither were the liability limitation to be withdrawn.26 A "but for" causal link was thus found between the statute and the existence of the injuries plaintiffs sought to remedy.

Having cleared the hurdles of standing and ripeness,27 the court had little difficulty with the merits. The liability limit was held inconsistent with due process standards because no rational relation had been shown between the amount of that limitation and the extent of damages likely to accrue from a major accident. The court ruled further, in an application of the Fifth Amendment fairly described as "fuzzy,"28 that the Act conflicted with the due process clause by failing to provide full compensation for the loss of the legal right to seek damages beyond the limit.

In addition, the Act was held contrary to the prohibition within the Due Process Clause of the Fifth Amendment against denials of equal protection by the federal government.29 The court found that while the gist of Price-Anderson is to benefit the public generally and the nuclear industry specifically, the burden of the scheme is borne by a small proportion of citizens owning property or residing in proximity to nuclear reactors. Finding no rational justification for this unequal arrangement, the court declared the statute void. The Supreme Court noted probable jurisdiction.30

The Opinion of the Supreme Court

Due Process and Equal Protection

Chief Justice Burger, writing for the majority, presaged the Court's view of the merits of the case by rejecting plaintiffs'31 argument that the Price-Anderson Act was of such public importance that a strict degree of scrutiny was required under due process law. The Court instead found the statutory scheme to be "a classic example of an economic regulation."32 Thus, the Act was to be accorded a presumption of constitutionality and to be judged against a standard of minimum rationality.

The opinion distilled the lower court's somewhat confused due process rulings into two separate questions. First, it asked whether on its face the law is a valid exercise of Congress' legislative power. Subsumed within this analysis are the issues whether the statutory goal is a legitimate one and whether Congress has selected a rational means of achieving it. Second, assuming the statute is otherwise valid, the Court asked whether it compensates plaintiffs sufficiently for the loss of their right to sue in tort if that extreme set of circumstances which would trigger the Act's liability limitation were to arise. Since the parties were in apparent agreement as to the validity of Congress' goal of promoting nuclear power and its selection of a limitation on liability as a means of promoting that goal, the first of the due process questions turned on the rationality of the $560 million figure. Blithely declaring that "the hard truth is that no one can ever know" whether that sum would "insure full recovery in all conceivable circumstances,"33 the Chief Justice concluded that any figure selected must necessarily be arbitrary to some extent. The evidence that Congress had chosen the $560 million figure with some care and had later promised to act should it prove inadequate satisfied the Court that due process requirements had been met.

This was not the end of the due process inquiry, however. Plaintiffs had persuaded the trial judge that, aside from the arbitrariness of the $560 million ceiling, the Act deprived them of due process by eliminating the right of tort recovery beyond the ceiling without full compensation for this taking. The High Court rejected this reading of the Fifth Amendment. While it declined to decide whether a taking of a valuable right, in the Fifth Amendment sense, had in fact occurred, the Court viewed those aspects of Price-Anderson tending to enhance or expedite recovery34 as constituting "reasonably just" compensation, and held that the Due Process Clause requires no more. Although appellees expressly declined to [8 ELR 10165] press the equal protection issue on appeal, the Court nevertheless interred it officially, finding that the demonstrated minimum rationality of the statute was sufficient.35

Jurisdiction

The difficulty and complexity of the issues relating to the justiciability of the case is demonstrated by the fact that the lower court, the Supreme Court majority, and two of the dissenters were in total disagreement as to the proper basis for jurisdiction. The opinion of the trial court did not address the question, and so presumably it relied upon the jurisdictional basis asserted within the complaint, a statutory provision granting jurisdiction to district courts to review questions arising "under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies."36 The majority, on the other hand, found that the suit arose not under a federal statute but under the Constitution. Indeed, the case did not turn on an interpretation of Price-Anderson, nor did it raise questions concerning rights or obligations conferred thereunder. Rather, the merits of the suit questioned whether constitutional commands had been violated. Thus, jurisdiction was held to fall, if at all, within the grant of judicial authority contained in the general federal question statute,37 which seems a far more satisfying jurisdictional footing.

A difference of opinion between parties over the correct interpretation of the Fifth Amendment, however, is not in itself sufficient to establish jurisdiction under the federal question statute. As a further prerequisite to its finding of jurisdiction, the Court had to determine that plaintiffs had asserted a proper claim entitling them to relief should their constitutional arguments prevail. The lower court's opinion had not addressed the question whether plaintiffs had shown a proper cause of action against either of the defendants for purposes of challenging the validity of Price-Anderson. This is understandable: plaintiffs had no right to sue the Commission38 either under common law, which does not generally recognize suits against the government, or by statute; statutorily created causes of action against the federal government require that the plaintiff's injury result directly from the "actions" of the agency being sued.39 Thus, in order to grant plaintiffs a judicial forum in which to raise their claims, the Supreme Court invoked the "well pleaded complaint doctrine" to read into the complaint a cause of action derived directly from the Constitution:

Implicit in the complaint is also the assumption that there exists a cause of action directly under the Constitution to vindicate appellees' federal rights through a suit against the NRC …40

Without warning the Court thereby ventured into a largely uncharted area of law in which courts have read a statutory or, less frequently, constitutional provision implicitly to authorize creation of a cause of action or the invocation of a remedy which is deemed necessary to effectuate the purposes of the provision but which would not otherwise be authorized by common law or statute.41

By suggesting that reliance on an implied cause of [8 ELR 10166] action would be permissible in these circumstances the Court appeared to be flirting with the notion that wherever a litigant challenges the constitutionality of a statute which cannot be linked directly to a specific defendant, the Constitution implicitly allows suit to be brought against the federal agency with the greatest nexus. However, a close reading of the opinion indicates that it did not adopt this position. The critical question of an implied cause of action was raised only within the context of the Court's search for a proper source of jurisdiction. Citing authority for the unquestioned rule that where a court's jurisdiction is doubtful, it should decline or entertain the case only where the federal claim advanced is so clearly unsupportable or grounded in state law as to be frivolous or "patently without merit,"42 the Court concluded:

For purposes of determining whether jurisdiction exists under § 1331(a) to resolve appellees' claims, it is not necessary to decide whether appellees' alleged cause of action against the NRC and based directly on the Constitution is in fact a cause of action "on which [appellees] could actually recover…." We conclude that appellee's [sic] allegations are sufficient to sustain jurisdiction under § 1331(a).43

But the opinion glaringly omits the logical next step, which is to determine whether on the merits the implied cause of action against the Commission is in fact a valid one, thereby legitimizing the presence of the federal defendant:

The further question of whether appellees' cause of action under the Constitution is one generally to be recognized need not be decided here…. [L]eaving [this question] unresolved is no bar to full consideration of the merits. [Citations omitted.] It is enough for present purposes that the claimed cause of action to vindicate appellees' constitutional rights is sufficiently substantial and colorable to sustain jurisdiction under § 1331.44

Through this finesse, the Court was able to reach the merits while explicitly declining to consider whether the case was based on a claim on which relief could be granted.45

Standing

The tortured history of the doctrine of standing to sue serves as probably the principal focus of those who criticize the current Court's craftmanship or assert that it holds expediency above principled decision making.46 Unfortunately, the Court's handling of the standing issue in Duke Power Co. v. Carolina Environmental Study Group, Inc., to as great an extent as any opinion in recent memory, gives continued vitality to Justice Douglas' heralded dictum that "[g]eneralizations about standing to sue are largely worthless …"47 With this pessimistic admonition in mind, a brief sketch of this area of law is appropriate before discussing the specific result in Duke Power.

Broadly speaking, the doctrine of standing serves two functions: at a minimum, it implements the constitutional limitation48 on federal jurisdiction to "cases and controversies;" beyond that, it embodies a complex mixture of "prudential limitations" which deny judicial review to a second layer of cases which otherwise meet the case or controversy standard. These secondary prudential limitations, in concert with a host of corollary doctrines, reflect judicial inability, or more often unwillingness, to consider many types of disputes, such as those which are not based on "ripe" factual settings, have become "moot," involve "political questions" or "advisory opinions," or would result in a waste of judicial resources.

The Court has established three standing tests which must be satisfied by prospective plaintiffs at the threshold of a lawsuit. The first is the "injury in fact" test, which requires the plaintiff to show that he has suffered and seeks to remedy a discrete and identificable harm, or that he would benefit in some real way from a favorable judgment.49 The purpose of this test is to:

assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult questions.50

Injury in fact is frequently said to represent the minimum degree of "adverseness" required by the Constitution; any more exacting limitations are deemed prudential and thus presumably within the power of Congress to [8 ELR 10167] eliminate legislatively.51 As will be seen below, however, recent Supreme Court decisions cast considerable doubt over such observations.

The second prong of the standing requirements is commonly known as the "zone of interests" test. Prior to 1970, plaintiffs were required to show not only injury in fact, but that the injury was to a legally cognizable right.52 In Association of Data Processing Service Organizations, Inc. v. Camp,53 the Supreme Court replaced the legal interest test with he zone of interests test, under which litigants are deemed to have standing if the interests to which they allege injury are "arguably within the zone of interests sought to be protected or regulated by the statute or constitutional guarantee in question."54 A useful observation is that whereas the injury in fact analysis considers the relation of the parties to determine whether the requisite adverseness is presented, the zone of interests test looks at the nature and foundation of the right asserted to assure that it is derived from the legal principle wielded by the plaintiff.55

A recent gloss to the zone of interests test was voiced by Justice Powell in Warth v. Seldin.56 While affirming the need for a demonstrable nexus between the injury alleged and the right invoked, he cast this requirement in language which could be taken to reflect a significantly restricted view of the expansive test expressed in Data Processing:

Essentially, the standing question in such cases is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief.57

Last but certainly not least is the relatively recently conceived requirement that the plaintiff be able to show to the court, at the threshold stage of the case, a "fairly traceable" chain of causation between he injury sought to be remedied and the challenged action of the defendant. Viewed differently, it must appear "substantially likely" that if the Court were to issue the requested relief the putative injury would be redressed.58 The cases show that while the Court does not necessarily have difficulty with pleadings alleging extremely attenuated chains of causation,59 if any link in such a chain is speculative or largely based on the behavior of third parties the Court will find the causal chain broken.60

Though labelled the "third prong" of the current approach to standing, the Court has made it clear that it views this causal nexus as an inseparable component of the injury in fact analysis.61

It was against this backdrop of principles that the Supreme Court sustained plaintiffs' standing to sue in Duke Power. Among the numerous injuries which had been alleged to arise from the imminent operation of defendant's nuclear power plants, the Court accepted as sufficient to establish injury in fact the impact upon [8 ELR 10168] plaintiffs' environmental and aesthetic interest from the anticipated releases of low-level radiation and thermal effluent. Deeming it unnecessary to consider plaintiffs other allegations62 once injury in fact had been established, the Court moved to the third prong of the standing test.

Chief Justice Burger cast this question as whether "these injuries fairly can be traced to the challenged action of the defendant, … or put otherwise, that the exercise of the Court's remedial powers would redress the claimed injuries."63 This expression of the proper test set the stage for the bifurcated analysis which followed. The Court accepted as not "clearly erroneous" the trial court's twin findings that (1) without Price-Anderson the nuclear industry would not have developed sufficiently to cause the plantiffs' injury, and (2) if the Act were voided as a result of this litigation the construction and maintenance of Duke Power's nuclear stations would come to a crunching halt, and concluded that injury in fact and the required causal nexus therefore existed.

Chief Justice Burger next turned to defendants' contention that standing should be denied for failure to establish a connection between plaintiffs' injury in fact and the Fifth Amendment rights upon which the litigation was based. Noting that the only claim with a real relation to the due process issue would be one arising from a nuclear catastrophe resulting in damages in excess of the Price-Anderson ceiling, the Court, in what appears to be an implicit repudiation of a long and well developed area of case law applying the zone of interests test, simply declined to require any direct relationship between plaintiffs' injury and their legal arguments:

Since the environmental and health injuries claimed by appellees are not directly related to the constitutional attack on the Price-Anderson Act, such injuries, the argument continues, cannot supply a predicate for standing. We decline to accept this argument.64

Neither Data Processing nor any other authority was cited for their application of the zone of interests test; in fact, the term "zone of interests" appears nowhere within the opinion. Although Justice Burger devoted a surprising amount of attention to the Court's opinion in Flast v. Cohen,65 he essentially did little more than corroborate the widely held view that Flast is inapplicable outside the context of taxpayer suits,66 and proceeded to conclude that plaintiffs had standing to challenge the Price-Anderson Act.

Ripeness

Chief Justice Burger found it unnecessary to address the issue of ripeness beyond a few summary observations. First, he concluded that the injuries to plaintiffs' environmental and aesthetic interests, which had satisfied the constitutional aspects of the standing requirements, satisfied the same aspects of the proper test for ripeness. The prudential notions embodied within the concept of ripeness were also examined and found to have been met. The existing factual situation was not so uncertain that the occurrence of a major nuclear accident would further crystallize the legal issues presented. In addition, the Court deemed the prompt resolution of these issues necessary to afford plaintiffs the requested relief, if any were to be forthcoming, and to remove public doubts concerning the scope of liability in the event of a nuclear catastrophe.

The dispatch with which the majority was able to dispose of the ripeness issue was due directly to the difficulties encountered on the standing issue. Had the majority chosen to identify plaintiffs' present injury as the present threat of losses from a future nuclear occurrence, the zone of interests test would have been satisfied perfectly because such losses are squarely within the purview of the Fifth Amendment. If the Court had followed that approach, however, the ripeness problem might have proven insurmountable, because of the extremely low probability of such an occurrence within the foreseeable future.Instead, the opinion focused on the present injury of increased environmental degradation, and bent the standing test while finding the controversy ripe.

Implications

The opinion of the Chief Justice in Duke Power Co. v. Carolina Environmental Study Group, Inc. is fair game for criticism of its confused application of relatively familiar principles of law and its dubious disregard of precedent. The opinion is also full of substantive and procedural implications, several of which merit brief discussion.

That the majority was on a mission to validate Price-Anderson and "thereby remove the doubt which has been cast over this important federal statute"67 is a fair inference from the remarks of two members of the Court who filed concurrences,68 from the fact that the Court ruled on a latent equal protection challenge to the Act which had not been briefed or argued,69 and from the legal contortions within the opinion which were necessary to penetrate the sturdy standing barriers set up by past decisions in order to reach the merits. This assault left [8 ELR 10169] neither the standing rules nor the integrity of the opinion unscathed. It did, however, reassure an energy-conscious nation that at least one major source of electricity will not disappear within the near future.

Close followers of the standing rule will examine with interest Chief Justice Burger's application of the "third prong" or causal nexus requirement. In the past the Court has treated as interchangeable the questions of whether the alleged injuries "fairly can be traced to the challenged action of the defendant" and whether the requested "exercise of the Court's remedial powers would redress the claimed injuries." Duke Power appears to be the first case in which the Court has been presented with a factual setting in which these lines of analysis could lead to different results70

Of potentially greater significance is the majority's failure to apply the "zone of interests" component of the conventional test for standing. Though the Court did not explicitly call for its repeal, its viability has been called into question by implication. The first aspect of the opinion leading to this conclusion is that the zone of interests test, even if liberally construed, would almost certainly have barred the Duke Power litigation. The Court itself recognized that there is virtually no connection between plaintiffs' environmentally based injuries and their due process challenge to Price-Anderson.71 Secondly, the majority strongly hint that, when viewed in the abstract, the test for standing may be stated without reference to the nature of the right asserted:

[W]here the injury alleged is a concrete and particularized one which will be prevented or redressed by the relief requested, the basic practical and prudential concerns underlying the standing doctrine are generally satisfied when the constitutional requisites are met.72

This statement is also a prime example of the Court's blurring of the distinction between prudential and Article III limitations on standing. To the extent that Duke Power furthers this homogenization and constitutionalization of the standing rules, it confers additional standardless discretion upon the Court, a development which some observers view with concern.73

The fact that the majority reached the merits, however, raises questions beyond whether the zone of interests test can be disregarded in the future. Indeed, the NRC's doubtful status as a party defendant74 gives rise to a strong argument that the plaintiffs in Duke Power did not satisfy even the injury in fact prong of the current test for standing, and that the Court was constitutionally powerless to hear the case under Article III's "case or controversy" limitation.

This limitation is typically invoked only where a suit has been brought in which plaintiff's alleged injury is found to be so trifling as not to warrant expenditure of the court's resources in hearing it. Article III also requires, however, in an absolute sense, that the interests of the parties to the litigation, regardless of the gravity of their respective stakes in the dispute, be diametrically opposed, i.e., that the defendant "caused" the plaintiff's injury and stands to lose if the judgment is unfavorable.75 This requirement is related to, though technically distinct from, prudential rules such as that prohibiting "third party" suits, which have been established largely because of the understandable desire of judges to preside over cases where there has been that clash of competing interests "which serves to illuminate difficult issues."76 Such considerations are inapplicable here; it would be hard to postulate a defendant more capable than the NRC (or, more accurately, the Department of Justice) of defending the constitutionality of Price-Anderson.

To the extent, however, that the requirement of adverseness is grounded in the text of Article III rather than in judicial policy, it is presumably beyond the power of the Court to disregard it:

In its constitutional dimension standing imports justiciability: whether the plaintiff has made out a case or controversy between himself and the defendant within the meaning of Article III. This is the threshold question of every suit, determining the power of the court to entertain the suit.77

Thus, although the Court in Duke Power correctly determined that plaintiffs' Fifth Amendment challenge to Price-Anderson conferred upon it jurisdiction within the meaning of the federal question statute, it erroneously assumed that this legislative grant of jurisdiction is the equivalent of the constitutional power of the Court to rule on the constitutionality of the case before it.

[A] court has power to declare a statute unconstitutional only as a consequence of the power of the court to decide a case properly before it. Unconstitutional statutes there may be, but unless they are involved in a case properly [8 ELR 10170] susceptible of judicial determination, the courts have no power to pronounce that they are unconstitutional.78

The intimations within the opinion of the existence of an implied constitutional right to sue the Commission may reflect the Court's sense that some sort of constitutional authority to hear the case was lacking. But its failure to resolve that question only strengthens doubts over the existence of its jurisdiction.

Finally, the Supreme Court's decision in Duke Power to reach out and determine the constitutionality of the Price-Anderson Act is not intuitively troubling, whatever one's views on the merits. There is little to be gained in delaying consideration of this important question until a nuclear disaster of sufficient magnitude has occurred. What is troubling, however, is that the Court failed or declined to recognize the case as one running afoul of the constitutional, statutory, and prudential limitations on its jurisdiction, and to address it on that basis. Instead, it deformed the law of standing and jurisdiction to accomplish its mission. This result neither reflects well on the Court's devotion to principle nor adds much-needed strength to the doctrinal foundations of the law governing standing to sue.

1. 46 U.S.L.W. 4845, 8 ELR 20545 (June 26, 1978).

2. 42 U.S.C. §§ 2012(i), 2014(j), (k), (m), (p), (q), (t), (w), 2210.

3. Carolina Environmental Study Group, Inc. v. United States Atomic Energy Commission, 431 F. Supp. 203, 7 ELR 20315 (W.D.N.C. 1977) (herinafter Carolina).

4. The defendants named in the complaint were the Duke Power Co. and the Atomic Energy Commission (now the Nuclear Regulatory Commission). The Supreme Court considered the case, however, only insofar as it related to the Commission. See note 45, infra.

5. See Carolina, supra note 3, 431 F. Supp. at 215-18, 8 ELR 20320-22; Duke Power Co. v. Carolina Environmental Study Group, Inc. (hereinafter Duke Power), 46 U.S.L.W. at 4849, 8 ELR at 20548.

6. U.S. CONST. art. III, § 2.

7. 42 U.S.C. §§ 2011-2282.

8. See Hearings Before the Joint Comm. on Atomic Energy on Government Indemnity for Private Licensees and AEC Contractors Against Reactor Hazards, 84th Cong., 2d Sess. (1956).

9. AEC, THEORETICAL POSSIBILITIES AND CONSEQUENCES OF MAJOR ACCIDENTS IN LARGE NUCLEAR POWER PLANTS, WASH-740, at 14 (1957). A follow-up study conducted in 1975 reached largely the same results, although it found that property damage might reach as high as $14 billion. NRC, REACTOR SAFETY STUDY, WASH-1400 (NUREG-75/014) at 88-93 (1975). The EPA found these estimates exceedingly conservative. EPA, Reactor Safety Study (WASH-1400): A REVIEW OF THE FINAL REPORT (EPA-520/3-76-009) at 1-4 (1976).

10. See Hearings, supra note 8, at 122-24.

11. 42 U.S.C. § 2012(i).

12. 42 U.S.C. § 2210(c).

13. 42 U.S.C. § 2210(e).

14. H.R. REP. NO. 435, 85th Cong., 1st Sess. 9 (1957).

15. Act of Oct. 13, 1966, Pub. L. No. 89-645 § 3, 80 Stat. 891.

16. For example, in states which do not impose a rule of strict liability, liability is generally premised on proof of negligence, a burden which might prove impossible to meet following a major meltdown. Cf. Rabin, Dealing with Disasters: Some Thoughts on the Adequacy of the Legal System, 30 STAN. L. REV. 281, 297 (following the Buffalo Creek disaster of 1972, recovery of the bulk of the $62 million damage claim turned on proof of "recklessness"). Also, state statutes of limitations might prove inappropriate to the injuries resulting from a nuclear incident, i.e., radiation and genetic effects. See Green, Nuclear Power: Risk, Liability, and Indemnity, 71 MICH. L. REV. 479, 494-97 (1973).

17. Act of December 31, 1975, Pub. L. No. 94-197 § 3, 89 Stat. 1111.

18. This amount was in fact set by the NRC and is the maximum allowed by the statute. 42 Fed. Reg. 49 (1977) (to be codified at 10 C.F.R. § 140.11(a)(4)).

19. This figure is arrived at by deducting from the $560 million limit the sum of $140 million (the required amount of private insurance) plus $335 million ($5 million per each of the 67 reactors now in operation). With the commencement of operation of additional reactors the government's share is further reduced, eventually reaching zero when 84 reactors are "on line." As the total increases beyond 84, the $560 million ceiling automatically increases by $5 million per reactor.

20. See 42 U.S.C. § 2210(o), which requires any district court in which such claims have been made to reserve 85 percent of the available assets in a special fund to be distributed only according to a plan which takes into account likely claims by as yet unidentified victims.

21. Carolina, supra note 3.

22. Carolina Environmental Study Group v. AEC, 510 F.2d 796, 5 ELR 20181 (D.C. Cir. 1975).

23. Indeed, the plaintiffs' due process and equal protection claims were ultimately firmly rejected by the Supreme Court, and an earlier suit raising essentially the same issues had been dismissed for lack of ripeness. Conservation Soc'y of Southern Vermont v. AEC (D.D.C. Apr. 16, 1975), reprinted in 121 CONG. REC. S22360 (daily ed. Dec. 16, 1975).

24. This test, discussed in greater detail below, can be summarized as requiring proof of (1) "injury in fact," (2) that the injury is arguably related to the type of interest protected by the statutory or constitutional provision invoked, and (3) that there is a "causal nexus" between the injury and the putatively illegal actions of the defendant. See Comment, The Revival of the Standing Defense in Environmental Litigation, 7 ELR 10031 (1977); discussion at notes 46-61, supra.

25. See Comment, Accidents and Bookies: North Carolina Judge Declares Price-Anderson Act Unconstitutional, 7 ELR 10094, 10095 (1977).

26. 431 F. Supp. at 218, 8 ELR at 20322.

27. Because the limitation on liability is not triggered until the occurrence of a major nuclear disaster, it had previously been thought that the ripeness issue was the major obstacle to success in any challenge to the Act, particularly after the decision in Conservation Soc'y, supra note 22. The trial court found, however, that the case was ripe because at least some of plaintiffs' injuries were present and not anticipatory, and the legal issues were sufficiently defined to be adjudicated. 431 F. Supp. at 222-23, 7 ELR at 20323.

28. Comment, supra note 25, at 10096.

29. Cf. Bolling v. Sharpe, 347 U.S. 497 (1954) (equal protection notions are implicit within the Due Process Clause of the Fifth Amendment).

30. 434 U.S. 937 (1977).

31. For convenience, appellees will hereafter be referred to as "plaintiffs."

32. 46 U.S.L.W. at 4851, 8 ELR at 20550.

33. 46 U.S.L.W. at 4851, 8 ELR at 20551.

34. See text at notes 15-19, supra.

35. This finding was supported by several prior decisions upholding legislative limitations on liability enacted to promote development of a specific industry or sector of commerce. See cases cited at 46 U.S.L.W. at 4851 n.32, 8 ELR 20552 n.32.

36. 28 U.S.C. § 1337.

37. 28 U.S.C. § 1331.

38. In a footnote to a later part of the opinion, the majority declined to consider whether a cause of action against the defendant Duke Power Co. existed through which the constitutionality of the Price-Anderson Act could be challenged. 46 U.S.L.W. at 4848 n.16, 8 ELR 20547 n.16.

39. See, e.g., Administrative Procedure Act, 5 U.S.C. § 702, ELR STAT. & REG 41005, which limits judicial review to persons "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute …" (emphasis added). See also, Federal Tort Claims Act, 28 U.S.C. § 1346(b), providing for civil actions against the government for injury "caused by the negligent or wrongful act or omission of any employee of the Government …" (emphasis added). See generally PROSSER, TORTS 972 (4th ed. 1971). Under the facts in Duke Power it is fairly clear that the case did not involve any "action" taken by the Commission. As Justice Rehnquist, joined by Justice Stevens, argued convincingly in dissent, the controversy at bar was not concerned with the legality of any past or future act of the Commission, but rather with the constitutionality of the Price-Anderson Act's as yet unapplied limitation on liability. Though the Act does impose certain functions upon the agency, these are essentially unrelated to Congress' determination to place a ceiling on the potential liability of licensees.

In a footnote, the majority undertook to connect the Commission's prescribed functions with the challenged liability ceiling, reading the Act to impose that ceiling only after the NRC has triggered its application by executing indemnity agreements with the licensees. Duke Power, 46 U.S.L.W. at 4850 n.26, 8 ELR at 20550 n.26. This connection, however, may be more coincidental than causal in the legal sense. See Duke Power, 46 U.S.L.W. at 4855 n.3, 8 ELR at 20554 n.3 (dissenting opinion of Rehnquist, J.). It could be argued with equal force that the liability limit is "triggered" by the Commission's issuance of construction permits or operating licenses under the Atomic Energy Act, of which Price-Anderson is a segment.

The Commission's lack of relation to this aspect of the Price-Anderson scheme is clarified by hypothesizing the occurrence of a nuclear accident triggering the liability limit. In such a case, where the issues and relationship of the parties would seem to be more concrete, the question of the Act's constitutionality would arise only as a parry to the invocation of a federal defense in a tort suit brought against the utility by a victim. In such a lawsuit the NRC would clearly be out of the picture. That plaintiffs in Duke Power had not sought injunctive or compensatory relief against the defendants further suggests that the real dispute was not between the parties but between the plaintiffs and Price-Anderson.

40. 46 U.S.L.W. at 4847, 8 ELR at 20547 (emphasis added).

41. This extraordinary device is occasionally deployed pursuant to the maxim that where plaintiffs have shown that their constitutionally protected rights have been violated, it is the duty of the federal courts to tailor their remedies and forms of action where necessary in order to afford relief. Bell v. Hood, 327 U.S. 678, 687 (1946). For example, in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Court allowed plaintiffs, victims of an unconstitutional search of their residence, to recover damages from the defendants despite the absence of any statute or case law providing such recourse. The rationale was that without an implicit cause of action for damages plaintiffs would have no means of vindicating their Fourth Amendment rights. See also Comment, Implying Federal Causes of Action from Federal Statutes: Amtrak and Cort Apply the Brakes, 17 B.C. IND. & COM. L. REV. 53 (1976).

42. See Hagans v. Lavine, 415 U.S. 528, 542-43 (1973); Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667 (1974).

43. 46 U.S.L.W. at 4847-48, 8 ELR at 20547.

44. 46 U.S.L.W. at 4848, 8 ELR 20547.

45. The opinion complicated things further when it stated: "we need not decide whether Duke Power is a proper party since jurisdiction over appellees' claims against the NRC is established…." 46 U.S.L.W. at 4848 n.16, 8 ELR at 20547 n.16 (emphasis added).

46. See, e.g., Currie, The Supreme Court and Federal Jurisdiction: 1975 Term, 1976 SUP. CT. REV. 183, 218, 219; Lewis, Constitutional Rights and the Misuse of Standing, 14 STAN. L. REV. 433, 439, 441 (1962); Morrison, Rights Without Remedies: The Burger Court Takes the Federal Courts Out of the Business of Protecting Federal Rights, 30 RUT. L. REV. 841 (1977) (the author represented the plaintiffs in the Duke Power litigation); Comment, Standing: A Key to Flexible Jurisdiction — The Aftermath of Warth v. Seldin, 95 W. VA. L. REV. 1247, 1276 (An examination of past cases "compels the conclusion that, in its most controversial applications, standing is employed by the Court to rationalize a grant or denial of jurisdiction after the Court has reached a decision on the merits") (emphasis in original). It is widely agreed that the inconsistency in and unpredictability of standing law gives the Court an undesirable discretion over the cases it hears. GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW 1596 (9th ed. 1975); Tushnet, The New Law of Standing: A Plea for Abandonment, 62 CORNELL L. REV. 663 (1977); Scott, Standing in the Supreme Court — A Functional Analysis, 86 HARV. L. REV. 645 (1973); Note, The Supreme Court: 1975 Term, 90 HARV. L. REV. 1, 212 (1976) ("the Court's discretion lacks relevant limits").

47. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 151 (1970).

48. U.S. CONST. art. III, § 2.

49. A "discrete and identifiable" harm may be found where plaintiff has alleged injury to environmental or aesthetic interests, United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 3 ELR 20536 (1973); Sierra Club v. Morton, 405 U.S. 727, 2 ELR 20192 (1972), but the Court frequently refuses to grant standing to assert injuries to an "undifferentiated" interest shared by a large class of persons, Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974); United States v. Richardson, 418 U.S. 166 (1974).

50. Baker v. Carr, 369 U.S. 186, 204 (1962).

51. Barlow v. Collins, 397 U.S. 159, 167, 168 (1970) (Brennan, White, JJ., concurring and dissenting). The converse of this point is that it is not within the power of Congress, through "citizen suit" or similar statutory provisions, to establish federal jurisdiction to entertain suits where injury in fact has not been shown. Tushnet, The New Law of Standing: A Plea for Abandonment, 62 CORNELL L. REV. 663, 667 (1977). Cf. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 224 n.14 (1974). For example, § 304 of the Clean Air Act provides a right of action to "any person" to challenge the failure by the Administrator of the Environmental Protection Agency to perform a nondiscretionary duty. 42 U.S.C. § 7604, ELR STAT. & REG. 42256. The Court, however, has indicated, without elaborating, that it will respect Congress' wishes in this regard and allow such suits.See, e.g., Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 209, 212 (1972). Cf. United States v. Richardson, 418 U.S. 166, 178 n.11 (1974). But see Warth v. Seldin, 422 U.S. 490, 502 (1975) ("Congress may grant an express right to persons who would otherwise be barred by prudential standing rules. Of course, Art. III's requirement remains: the plaintiff still must allege a distinct and palpable injury to himself …").

52. Tennessee Electric Power Co. v. TVA, 306 U.S. 117, 137 (1939).

53. 397 U.S. 150 (1970).

54. Id. at 153. The "legal interest" test was abandoned because it required plaintiffs, at the pleadings stage, to establish with some specificity that they in fact had a legally protected interest. The newer test has perceptively been described as a change in emphasis: whereas previously the statutory or constitutional provision invoked was required to explicitly mention plaintiff's asserted interest, Data Processing requires only that that interest be implicitly within the ambit of the provision. Scott, supra, note 46, at 667-68.

55. See Scott, supra, note 46, at 663.

56. 422 U.S. 490 (1975).

57. Id. at 500 (emphasis added). Justice Powell, speaking for the Court, went on, within his injury in fact analysis, to state the following:

When a governmental prohibition or restriction causes specific harm to a third party, harm that a constitutional provision or statute was intended to prevent, the indirectness of the injury does not necessarily deprive the person harmed of standing….

422 U.S. at 505 (emphasis added). The language emphasized within each quotation appears to signal a retreat from the Data Processing standard toward the legal interest test. Indeed, it has been remarked that after Warth, the zone of interests test announced in Data Processing is of no continuing validity. Comment, Constitutional Challenge to the Price-Anderson Act: Ripeness and Standing Before the Holocaust, 1976 DUKE L.J. 967, 982 n.45.

58. Thus, in Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976) (hereinafter EKWRO), a group of indigent plaintiffs challenged the issuance of an Internal Revenue Service ruling which changed the standards under which hospitals qualified for tax exempt status in order to reduce their obligation to provide free service to indigents. The Court held that plaintiffs lacked standing to sue because they had failed to establish within the complaint that the challenged ruling had led inexorably to the hospitals' decision to deny them services.

In Warth v. Seldin, 422 U.S. 490 (1975), a group of minority plaintiffs was held without standing to challenge anallegedly discriminatory municipal housing ordinance because their inability to locate housing within the locality was due in some measure, the Court found, to other factors, i.e., "market forces."

But cf. Village of Arlington Heights v. Metroplitan Housing Development Corp., 429 U.S. 252 (1977), in which the Court, under facts virtually identical to those in Warth, found that the plaintiffs had met the relevant standing tests because they had alleged that they satisfied all the qualifications for residence in a planned housing development which would be constructed but for the existence of the allegedly discriminatory statute, which was ultimately upheld on the merits.

59. United States v. Students Challenging Regulatory Agency Procedures, supra note 49.

60. See Warth, supra note 56, at 509.

61. EKWRO, supra note 58, at 40-42.

62. Among the additional injuries found by the trial court were a threatened decline in the value of plaintiffs' property, decreased recreational opportunities, and a reasonable apprehension on the plaintiffs' part of the dangers of low-level radiological emissions, as well as the threat of a major nuclear disaster. 431 F. Supp. at 239, 7 ELR at 20317.

63. 46 U.S.L.W. at 4849, 8 ELR at 20548.

64. 46 U.S.L.W. at 4850, 8 ELR at 20548.

65. 392 U.S. 83 (1968).

66. See, e.g., United States v. Richardson, 418 U.S. 166, 180 (1974) (Powell, J., concurring); Sedler, Standing and the Burger Court, 30 RUT. L. REV. 63 (1973). Cf. Scott, supra note 46, at 660-62.

67. 46 U.S.L.W. at 4854, 8 ELR at 20554 (Rehnquist, J., concurring).

68. "We are not statesmen; we are judges." 46 U.S.L.W. at 4856, 8 ELR at 20556. (Stevens, J., concurring.) See also 46 U.S.L.W. at 5854, 8 ELR at 20554 (Rehnquist, J., concurring).

69. While the Court resolved this question sua sponte, elsewhere in the opinionit declined to address a less palatable issue, warning of dangers in considering issues which have not been briefed or raised at oral argument. 46 U.S.L.W. at 4848, 8 ELR at 20547. See text at note 44, supra.

70. While it is fairly evident that the Price-Anderson Act has been a "proximate cause" or "but for" spur to the growth of the nuclear energy industry and thus the plaintiffs' injuries, it is conceivable that were a court to issue a declaratory ruling that the Act is invalid it might not lead to the immediate cessation of the generation of 10 percent of the nation's electrical supply (the amount supplied by nuclear power) and the abandonment of an industry with a $100 billion capital investment.

Note that the former test involves a retrospective search for an historic causal connection between defendant's conduct and plaintiffs' injury and is arguably grounded in the constitutional requirement of a case or controversy. On the other hand, the latter test involves a prospective search for evidence that the court's efforts will not be in vain and seems to embody largely prudential concerns. See EKWRO, supra note 58, at 42 (Powell, J., concurring).

71. 46 U.S.L.W. at 4849 n.23, 8 ELR at 20548 n.23.

72. 46 U.S.L.W. at 4850, 8 ELR at 20550.

73. Objections over the muddling of the standing rules have been frequently raised. See generally authorities cited at note 46, supra.

74. See discussion at note 39, supra.

75. See Aetna Life Ins. Co. v. Haworth, 300 U.S. 229, 240-41 (1937) ("The controversy must be definite and concrete, touching the legal interests of parties having adverse interests.") Accord, Flast v. Cohen, 392 U.S. 85, 95 (1968).

Several authorities have asserted, however, that notwithstanding the constitutional requirement, genuine adversity between the parties should not be necessary from a policy standpoint. GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW 1538 (9th ed. 1975); WECHSLER, PRINCIPLES, POLITICS AND FUNDAMENTAL LAW 9 (1961); Monaghan, Constitutional Adjudication: The Who and When, 82 YALE L.J. 1363 (1973). See also Note, Judicial Determinations in Nonadversary Proceedings, 72 HARV. L. REV. 723 (1959).

76. Baker v. Carr, 369 U.S. 186, 204 (1962).

77. Warth v. Seldin, supra note 58, at 498 (emphasis added).

78. WRIGHT, FEDERAL COURTS 39 (3d ed. 1976).

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