Preemption Under the Atomic Energy Act: Federal Courts Void California and New York City Nuclear Power Laws

The mishap at the Three Mile Island generating plant near Harrisburg, Pennsylvania is but the latest spur to an intensifying national debate over the merits of nuclear power. In an attempt to gain greater control over their nuclear destinies, a number of states and municipalities have enacted statutes within the last five years which impose a variety of limitations and conditions on the siting of new nuclear reactors within their borders. The central legal issue raised by these measures is the extent to which the federal laws governing nuclear development have preempted state and local regulatory authority.

Federal preemption is a fundamental and recurrent issue in environmental law, but there has been relatively little judicial definition of its precise contours in the nuclear context. While a considerable volume of legal commentary has grappled with the extent of the Atomic Energy Act's preemption of state and local nuclear regulatory statutes,¹ the case law assessing the validity of these measures is sparse. Two federal district courts recently broke this judicial quiescence, however, with decisions striking down a New York City ordinance requiring a permit for operating a reactor in the city and a California statute hinging state certification of proposed nuclear plants on the existence and federal approval of a technology for long-term nuclear waste disposal.

The opinions in these two cases reflect a broad reading of the federal nuclear laws and envision a correspondingly limited role for states and localities in controlling nuclear power development for environmental or other reasons. Each will undoubtedly spark another round of commentary and the California ruling may well lead to consideration of the nuclear preemption question by the United States Supreme Court. Should other courts facing this issue in the future choose to follow the reasoning of the federal district court in California, many of the recent crop of state laws aimed at limiting or conditioning nuclear growth will come to grief in the federal courts.

Preemption: Doctrine and Application

The doctrine of preemption grows out of the Supremacy Clause which specifies that the Constitution itself and all valid federal statutes shall be the supreme law of the land.² A corollary is that federal laws override and invalidate state statutes with which they conflict.³ Ascertaining the presence of such federal-state conflicts is largely a matter of statutory interpretation.⁴ Where Congress has not expressly stated its intent to foreclose concurrent state regulation of an area or activity subject to federal control, preemptive intent may still be implied. A state law will also fall to the extent it stands "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."⁵ In determining whether to infer a congressional design to exclude competing state regulation, courts first examine the language and legislative history of the federal statute.⁶ Beyond that, they eschew any rigid formula and look instead to general criteria such as the pervasiveness of the federal regulatory scheme and the need for nationally uniform regulation given the nature of the subject matter.⁷ The imprecision of these indicia give the courts substantial leeway to apply policy considerations and differing perspectives on federalism in determining whether implied preemption should be found in particular cases.⁸

Since 1973, the Supreme Court has tended to be fairly solicitous of the states' role within the federal system in deciding preemption cases. Recent decisions⁹ indicate that the Court has adopted a "modern" approach to preemption under which it will assume that historic state police powers are not to be superseded by particular federal legislation unless the congressional purpose to occupy the field exclusively is "clear and manifest."¹⁰ In addition, it will attempt to reconcile concurrent federal and state regulatory schemes where possible, and will find the latter implicitly preempted only where the conflict between particular federal and state provisions is actual and substantial.¹¹

[9 ELR 10046]

Nuclear Power: The Federal Statutory Scheme

The Atomic Energy Act of 1954¹² terminated the government's post-World War II monopoly over atomic energy and created a role for the private sector in the commercial development of nuclear power. The Act authorized the Atomic Energy Commission (AEC)¹³ to administer a comprehensive program of permits and licenses for the construction and operation of nuclear facilities and to set standards for the handling of nuclear materials so as to protect the public health and safety. Section 271 disclaimed any intent to affect state power to regulate the generation, sale, or transmission of electricity produced by nuclear plants.¹⁴

The central focus of the debate concerning the Act's preemptive effect, however, has been § 274,¹⁵ which was added as an amendment in 1959. This provision authorizes state regulation of certain matters pursuant to cooperative agreements with the Commission. Section 274(c) imposed significant limitations on the potential scope of state authority, however, by precluding cooperative agreements relating to regulation of (1) construction or operation of nuclear plants or (2) the disposal of nuclear wastes.¹⁶ On the other hand, § 274(k)¹⁷ recognizes an appaently unbounded state power to regulate activities for purposes other than protection against radiation hazards. The legislative history of this section shows that Congress made a conscious choice not to attempt to define precisely the extent of federal preemption in areas other than the control of radiation hazards, preferring to leave that question to the courts.¹⁸

Northern States

Prior to the recent district court decisions, the only major federal case dealing with the preemptive effect of these provisions of the Atomic Energy Act was Northern States Power Co. v. Minnesota.¹⁹ In its seminal Northern States decision, the Eighth Circuit held in 1971 that Minnesota was powerless to impose radioactive effluent standards more restrictive than those set by the AEC. The state regulation could easily have been invalidated under § 274(k) alone as an implicitly impermissible attempt to protect against radiation hazards. The court did conclude that the measure transgressed § 274(k) in this regard, but its opinion went further, applying § 274(c) as well. Reading the latter provision as reserving to the federal government exclusive authority to regulate construction and operation of nuclear plants, the court determined that this federal sphere necessarily encompasses the setting of standards for radioactive discharges from such plants. The court thus apparently ruled that the state measure was implicitly preempted under both §§ 274(c) and 274(k). It also noted as a matter of policy that if the widespread development of nuclear power were to proceed, states could not be allowed to impose possibly restrictive radiation standards on effluents from federally licensed plants. The United States Supreme Court affirmed the Eighth Circuit's decision without opinion.²⁰

United States v. City of New York

Northern States thus established that direct state regulation of radiation emitted by nuclear power plants is prohibited by the Atomic Energy Act.²¹ In United States v. City of New York,²² decided four months ago, the federal district court for the Southern District of New York went a step further, ruling that an attempt by New York City to protect the public against accidental radiation releases by prohibiting the operation of a nuclear reactor at Columbia University was likewise implicitly preempted under § 274.

The city had attempted to defend the ordinance, which required a municipal health and safety certificate before the federally licensed reactor could commence operations, by characterizing it as a siting regulation well [9 ELR 10047] within the traditional police power to regulate land use. The city's argument was undermined, however, by statements in the official explanatory notes accompanying the measure that its purpose was to provide a review of the public health implications of reactor operations and the fact that the city Health Commissioner denied the certificate on the basis of possible radiation releases injurious to public health.

While the New York City ordinance, unlike the Minnesota regulation voided in Northern States, did not impose controls directly on radioactive emissions, the court concluded that it was nonetheless aimed at controlling the radiation hazards associated with operation of the reactor. Reading Northern States as establishing the federal government's exclusive authority to regulate both reactor construction and operation and all radiation hazards associated with nuclear facilities, the court in the end also seemed to base its invalidation of the measure on both §§ 274(c) and 274(k).

The California Decision

Northern States and City of New York express an expansive view of the federal government's reservation of exclusive authority to regulate the construction and operation of nuclear reactors under § 274(c). Each of these decisions, however, ostensibly dealt with state or local regulations aimed at protecting against radiation hazards, a purpose which is clearly preempted by § 274(k). Neither court reached the merits of the broader issue of the extent of state power to impose controls on nuclear development for reasons other thn radiation protection. In fact, the court in City of New York expressly declined to determine whether, apart from the implicit congressional intent regarding preemption reflected in § 274, the municipal ordinance was invalid on the broader ground of "its potential for impeding the accomplishment and execution of the Act's purposes and objectives."²³

Pacific Legal Foundation v. State Energy Resources Conservation and Development Commission²⁴ is the more noteworthy of the two recent cases because the California requirements for nuclear plant certification were more than simply an attempt to minimize radiation hazards. The court thus had to examine more closely the extent of federal preemption of state authority to control nuclear development on other grounds and in other ways.

Background

The decision addressed three bills enacted by the California legislature in 1976, one week before the state's electorate was to vote on an initiative that would have severely limited future development and use of nuclear power.²⁵ The three measures were adopted as amendments to the Warner-Alquist Act of 1974,²⁶ which had established a comprehensive siting certification scheme for all new thermal electric power plants to be administered by the State Energy Resources Conservation and Development Commission (Energy Commission). The first law²⁷ prohibited the siting of new nuclear power plants within the state until the Energy Commission found that technology for fuel rod reprocessing has been proven scientifically and certified by the federal government. The second established the same requirement as to technology for the disposal of high level nuclear waste.²⁸ The third measure²⁹ required the Energy Commission to conduct a study of the necessity and feasibility of underground construction and berm (earthern dike) containment of nuclear plants proposed after January 1, 1980.

In January 1978 the Energy Commission decided that a finding as to the existence of reprocessing technology was unnecessary because reprocessing was no longer required by the federal government or by operational or economic necessities.³⁰ The state Commission also determined that an affirmative finding on the nuclear waste disposal question was impossible because no disposal technology had yet been demonstrated nor made significant progress toward federal approval. In light of this finding, the Energy Commission announced that it was currently precluded from certifying any new nuclear power plants by the second "nuclear" law.

Three months later the California Attorney General issued an opinion³¹ concluding that the state's nuclear certification requirements were preempted by the Atomic Energy Act. In his view the state laws were aimed primarily at reducing radiation hazards associated with reactor operation and were thus preempted by § 274(k). The opinion went on to state that in any event, because the measures imposed a de facto moratorium on nuclear development within the state, they stood as impermissible obstacles to achievement of the congressional objective of encouraging thewidespread development and use of nuclear energy. The first project to feel the effect of the new laws was the proposed Sundesert nuclear power plant in southern California. After unsuccessfully seeking an exemption from the state certification requirements and then cancelling the project, backers of Sundesert brought suit challenging the three laws on essentially the same grounds suggested by the Attorney General.³²

The Court's Opinion

In preliminary rulings the court in Pacific Legal Foundation determined that challenges to the first and third nuclear laws were moot³³ but that at least one plaintiff [9 ELR 10048] had standing to sue to attack the validity of the nuclear waste certification requirement established by the second.³⁴ Judge Enright also concluded that the controversy was ripe for adjudication even though there had been no formal denial of certification for the Sundesert project. The Energy Commission's determination that no certification could currently be granted had in the court's view imposed a de facto moratorium of indefinite duration on nuclear plant siting in the state, and this moratorium itself injured the plaintiff through its contribution to the suspension of Sundesert.

Turning to the merits of the preemption issue, the court held that the measure was preempted, in the first instance, by implicit congressional foreclosure of state regulation of nuclear waste disposal under § 274(c). Judge Enright rejected defendants' attempts to distinguish the challenged statute from the Minnesota regulations invalidated in Northern States, noting that both attempted to regulate radioactive waste disposal. In the court's view, the Eighth Circuit's opinion established that whatever the scope of residual state authority under § 274(k), it does not reach those matters specifically reserved to the federal government by § 274(c). The essential inquiry was not whether the putative purpose of the California law was unrelated to radiation hazards and thus beyond reproach under § 274(k), but whether the measure impinged upon a regulatory sphere to which the federal government had laid exclusive jurisdictional claim in § 274(c). Judge Enright noted that the latter subsection reserved regulation of high-level nuclear waste to the federal government and that the Commission had made a policy determination³⁵ not to require the approval of a permanent disposal technology as a condition for nuclear power plant construction or operation. He therefore concluded that the California waste disposal technology statute which, he suggested, was actually aimed at the radiation hazard presented by nuclear waste,³⁶ in any event, had been implicitly displaced by the federal scheme under § 274(c).

The court flatly rejected defendants' contention that the state law was within the sphere of state authority preserved under § 274(k) because it was aimed at the economics of power generation rather than radiation hazards. To judge the validity of state nuclear laws under § 274(k) solely on the basis of their expressed purposes, the court explained, would allow states to evade or undermine federal policy decisions within the preempted sphere established under § 274(c).

This observation was a precursor to the further conclusion that even if the California law could not be said to fasten upon a subject as to which state regulation had been completely foreclosed by § 274 it was nonetheless void as an obstacle to the overall congressional design for fostering the development of nuclear power. In reaching back to this broad tenet of traditional preemption law, the court first returned to the original and now 25-year-old declarations of policy in the Act³⁷ as a strong expression of a continuing congressional objective to maximize the development of nuclear energy sources consistent with the public health and safety. Viewing the California requirement of a proven waste disposal technology as no more than a thinly veiled ban on nuclear plants in the state, Judge Enright opined that the federal policy of encouraging the development and use of nuclear energy would be frustrated if all the states enacted laws similar to the California statute. Acknowledging that the Atomic Energy Act leaves room for some unspecified type of state regulation through § 274(k), the court drew a crucial distinction between regulation and prohibition:

… 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.³⁸

For case law on this point, Judge Enright looked to First Iowa Hydro-Electric Cooperative v. FPC,³⁹ in which the Supreme Court held that an applicant for a federal license to construct a hydroelectric project under the Federal Power Act⁴⁰ was not required to demonstrate compliance with a state permit law. The First Iowa opinion emphasized that although there was some role for concurrent state regulation under the Act, the state's refusal to permit the project on the basis of a state policy against lengthy water diversions conflicted with the federal objective of fostering comprehensive development of the nation's water power resources through such projects and was thus impermissible. Judge Enright read First Iowa as establishing the broader principle that states are powerless to pass legislation which frustrates commerce-related federal resource development policies or plans. The California waste disposal technology law was consequently preempted because it threatened to disrupt seriously the national plan for the development of nuclear energy. Without gainsaying defendants' policy arguments against both the use of atomic power and federal restriction of state autonomy on the question of "going nuclear," the court shrugged off such contentions as more appropriately addressed to the Congress.

[9 ELR 10049]

Implications

The first aspect of the Pacific Legal Foundation ruling, i.e; that the California certification requirement is implicitly preempted by the language, logic, and legislative history of § 274(c) of the Atomic Energy Act insofar as it touches upon nuclear waste disposal, breaks some new ground. Although the result follows directly from Northern States' teaching that § 274(c) defines a sphere of exclusive federal authority, the decision was a departure in that the court's ruling on implicit preemption was based wholly on § 274(c), there being no holding that the state law was also an attempt to regulate radiation hazards, and thus invalid under § 274(k).

Judge Enright was unmoved by defendants' argument that the scope of this implicit preemption was limited to the setting of design or performance standards for waste disposal activities and that the challenged law was therefore valid because it did not attempt to impose such controls. This portion of the decision indicates that while § 274(k) may preserve some as yet undefined concurrent state regulatory role, states may not enact either policy directives or specific standards directly touching upon any of the subject areas specified in § 274(c).

It is the second half of the court's holding in Pacific Legal Foundation, i.e., that the California law is preempted on the broader ground that it impermissibly interferes with federal plans and policies for the widespread development of nuclear power, that promises to have the greater impact. By ruling that whatever the nature or scope of residual state regulatory power under § 274(k), it does not extend to outright or de facto prohibitions on nuclear power development, Judge Enright in effect announced that states do not have the power to refuse openly to accept nuclear development as part of the national program of developing atomic power to meet a significant portion of our energy needs. The court indicated that any sort of blanket ban, including an indefinite moratorium, on nuclear plant sitings within a state constitutes an obstacle to this national policy and thus will not pass muster. The decision leaves open, however, the question of whether state denial of a permit for a proposed nuclear plant at a specific site pursuant to a state regulatory scheme which is not facially preempted is to be viewed as a similarly impermissible obstacle to the federal nuclear program. A strong and seemingly persuasive argument can be made that although the states' power to regulate nuclear development under § 274(k) does not include the power to prohibit it altogether, this as yet undefined authority necessarily encompasses at least the power to refuse to approve particular projects on the basis of traditional police power objectives not directly related to radiation hazards, waste disposal, or the mechanics of plant operation or construction.

The crux of the court's second and more expansive preemption ruling is its reading of the Atomic Energy Act as articulating a strong national policy of actively encouraging the widespread development of nuclear energy. The defendants argued that even if the Act originally embodied a "nuclear or bust" policy determination, which they by no means conceded, subsequent legislation has modified that policy from a nuclear mandate into a nuclear option which the states are free to take or leave in favor of alternative energy technologies. If a future court should conclude, after an examination of these more recent laws, particularly § 122 of the Clean Air Act Amendments of 1977⁴¹ and the Energy Reorganization Acts of 1974⁴² and 1977,⁴³ that the Pacific Legal Foundation defendants in fact had the better of this debate, then the latter portion of the court's decision would lose much of its force. The Supreme Court's apparent affirmation of a strong and continuing national policy in favor of widespread nuclear power development in its decisions last term in Duke Power⁴⁴ and Vermont Yankee Nuclear Power Corp. v. NRDC⁴⁵ makes this prospect unlikely, however.

Prospects for Other State Nuclear Laws

Judge Enright's ruling as to the preemptive scope of § 274 does not necessarily preclude state regulation going to matters other than radiation hazards, nuclear waste disposal, and the mechanics of plant construction and operation. Measures which might survive scrutiny include siting requirements aimed solely at traditional land use considerations such as zoning compatibility or seismic hazards⁴⁶ and financial requirements designed to foster traditional economic objectives of utility regulation such as reasonable rate structures.⁴⁷

On the other hand, the implicit preemption doctrine could be stretched even further by drawing upon dicta in Northern States and City of New York to read § 274(c)(1) to foreclose by implication any state regulation of nuclear plant construction and operation, from the first gleam in the project sponsor's eye to the radioactive effluents that flow away as power is being produced. Moreover, if other federal courts adopt the reasoning of the latter portion of the Pacific Legal Foundation opinion when faced with preemption challenges to state measures that distinguish between nuclear power plants and other types of electrical generating facilities, the days of such state "nuclear" laws are numbered. Most imminently threatened in this regard is a Maine law which is analogous to the invalidated California statute in that it imposes a moratorium on nuclear development pending discovery and approval of a permanent waste disposal technology.⁴⁸ Also very much at risk under this "obstacle to national policy" analysis is a Montana statute recently adopted by initiative which establishes severe restrictions on the siting of nuclear power plants within the state.⁴⁹ More difficult to analyze in these terms but likewise [9 ELR 10050] threatened is a Vermont statute requiring approval of nuclear projects by the state legislature.⁵⁰

Less likely to fall but still in jeopardy are comprehensive state energy facilities licensing laws, such as Oregon's,⁵¹ which although they base siting certification on traditional environmental and land use considerations, speak to proposed nuclear projects in special terms.⁵² More likely to survive preemption challenges are general state energy siting laws which do not differentiate between nuclear and other thermal electric generating facilities in terms of the land use, environmental, and economic conditions that must be met to win certification.⁵³ Were such a law upheld, however, state disapproval of a particular nuclear proposal under it might nevertheless be invalidated as based upon a preempted subject area such as radiation hazards if the record indicated that this was in fact a central reason for the certification denial. Alternatively, a court might adopt the broad reading of the Atomic Energy Act's policy directive reflected in the Pacific Legal Foundation decision and void the state's disapproval as an impermissible obstacle to the national plan for widespread nuclear development. While the former result follows from City of New York, the latter would stand in seeming disregard of the apparent congressional effort to preserve some state regulatory role under § 274(k).

Conclusion

The recent decisions in City of New York and Pacific Legal Foundation indicate that the lower federal courts are applying a fairly traditional and broad brush preemption analysis in the area of state nuclear regulation and are consequently articulating an expansive interpretation of the sphere of exclusive federal authority staked out by the Atomic Energy Act. The rulings bode ill for most of the recently enacted state laws which make direct attempts to limit or condition further nuclear development.

These two cases hardly represent the last judicial word on preemption in the nuclear context, however. A suit filed the same day as Pacific Legal Foundation which challenges the validity of any application of California's comprehensive thermal electric power plant siting scheme to proposed nuclear plants is still pending.⁵⁴ In addition, the defendants in Pacific Legal Foundation have indicated that they plan to appeal the district court's decision to the Ninth Circuit and then to the Supreme Court if necessary, and there is thus at least the possibility of definitive guidance from the High Court on this issue in the near future. The defenders of the California law appear to be on firm ground in arguing that the measure is in fact both a permissible exercise of state authority over economic matters under §§ 271 and 274(k) and not an attempt to set concurrent technical standards on nuclear waste disposal in implicit transgression of § 274(c). Moreover, in view of its change in attitude in recent preemption cases,⁵⁵ the Supreme Court might well make a more serious effort than did the district court to reconcile the state law with the federal regulatory scheme should the case ultimately reach it. Against this new view of preemption, however, must be weighted the Court's recent obeisance to a strong national policy of nuclear development.⁵⁶

Rather than evolving from a series of judicial rulings, a clearer definition of the scope of state power to limit or prevent additional nuclear development may soon emerge as a result of legislative action. The political fallout from the recent accident at Three Mile Island has converged with the Carter Administration's renewed proposal for reform of the federal nuclear licensing process to spark hearings before numerous congressional committees concerning the need for modifications in both the current federal regulatory structure and the Atomic Energy Act itself. The legislative upshot of this reassessment of the national nuclear program may well clarify and even expand state authority. The Administration's 1978 licensing reform bill, for example, provided an explicit state right to veto a proposed nuclear power plant at a particular point in the federal licensing process.⁵⁷ Perhaps even more importantly, a citizenry newly awakened to the possible dangers of a nuclear power plant in the neighborhood may press the Congress to give the states a fuller and clearer right to refuse to accept additional nuclear development.

1. See, e.g., Murphy & La Pierre, Nuclear "Moratorium" Legislation in the States and the Supremacy Clause: A Case of Express Preemption, 76 COLUM. L. REV. 392 (1976); Parenteau, Regulation of Nuclear Power Plants: A Constitutional Dilemma for the States, 6 ENVT'L L. 675 (1976); Tribe, California Declines the Nuclear Gamble: Is Such a State Choice Preempted?, 7 ECOLOGY L.Q. 679 (1979); Comment, Federal Preemption of State Laws Controlling Nuclear Power, 64 GEO. L.J. 1323 (1976); Note, Application of the Preemption Doctrine to State Laws Affecting Nuclear Power Plants, 62 VA. L. REV. 738 (1976).

2. U.S. CONST. art. VI, cl. 2.

3. Gibbons v. Ogden, 22 U.S. 1, 210-11 (1824).

4. L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 6-23, at 377 (1978).

5. Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

6. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 147-50 (1963); Campbell v. Hussey, 368 U.S. 297, 301-02 (1961).

7. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 241-44 (1959); Pennsylvania v. Nelson, 350 U.S. 497, 502-04 (1956).

8. See generally Note, The Preemption Doctrine: Shifting Perspectives on Federalism and the Burger Court, 75 COLUM. L. REV. 623 (1975).

9. See, e.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 8 ELR 20255 (1978); Jones v. Rath Packing Co., 430 U.S. 519 (1977); De Canas v. Bica, 424 U.S. 351 (1976); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117 (1973); New York State Dep't of Social Services v. Dublino, 413 U.S. 405 (1973); Goldstein v. California, 412 U.S. 546 (1973); Askew v. American Waterways Operators, Inc., 411 U.S. 325, 3 ELR 20362 (1973).

10. Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977).

11. Ray v. Atlantic Richfield Company, 435 U.S. 151, 8 ELR 20255 (1978).

12. 42 U.S.C. §§ 2011-2096.

13. The AEC was abolished by the Energy Reorganization Act of 1974, 42 U.S.C. §§ 5801-5891, and its regulatory and licensing functions transferred to the newly established Nuclear Regulatory Commission. Both agencies will be referred to infra as the "Commission."

14.

Nothing in this chapter shall be construed to affect the authority or regulations of any Federal, State, or local agency with respect to the generation, sale, or transmission of electric power produced through the use of nuclear facilities licensed by the Commission: Provided, That this section shall not be deemed to confer upon any Federal, State, or local agency any authority to regulate, control, or restrict any activities of the Commission.

42 U.S.C. § 2018.

The proviso was added in 1965 as a direct response to Maun v. United States, 347 F.2d 970 (9th Cir. 1965), in which the court upheld a municipality's denial of a permit for construction of a high-voltage transmission line to the Stanford Linear Accelerator, a facility owned and operated by the Commission.

15. 42 U.S.C. § 2021.

16.

(c) No agreement entered into pursuant to subsection (b) of this section shall provide for discontinuance of any authority and the Commission shall retain authority and responsibility with respect to regulation of —

(1) the construction and operation of any production or utilization facility;

(4) the disposal of such other byproduct, source, or special nuclear material as the Commission determines by regulation or order should, because of the hazards or potential hazards thereof, not be so disposed of without a license from the Commission.

42 U.S.C. § 2021(c)(1) & (4).

17.

(k) 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).

18. Hearings Before the Joint Comm. on Atomic Energy on Federal-State Relationships in the Atomic Energy Field, 86th Cong., 1st Sess. 500 (1959).

19. 447 F.2d 1143, 1 ELR 20451 (8th Cir. 1971), aff'd mem. 405 U.S. 1035 (1972).

20. Minnesota v. Northern States Power Co., 405 U.S. 1035 (1972) (per curiam).

21. This state of affairs has changed at least as to radioactive air emissions, however. Section 122 of the Clean Air Act, 42 U.S.C. § 7422, ELR STAT. & REG. 42228, added by the 1977 amendments to that statute, now explicitly authorizes state regulation of such emissions.

22. 463 F. Supp. 604, 9 ELR 20188 (S.D.N.Y. Dec. 26, 1978).

23. Id. at 614 n.4, 9 ELR at 20193 n.4.

24. __ F. Supp. __, 9 ELR 20149 (S.D. Cal. Mar. 6, 1979).

25. See Comment, Fallout from the California Nuclear Initiative, 6 ELR 10172 (1976).

26. CAL. PUB. RES. CODE §§ 25000-25968 (West 1977).

27. Id. § 25524.1.

28. Id. § 25524.2.

29. Id. § 25524.3.

30. In re Implementation of Nuclear Reprocessing and Waste Disposal Statutes, Nos. 76-NL-1, 76-NL-3 (Jan. 25, 1978).

31. 61 OP. CAL. ATT'Y GEN. 159 (1978).

32. A second suit was filed that same day in a separate federal district court challenging the constitutionality of other provisions of the Warner-Alquist Act as applied to the siting of nuclear power plants. Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission, No. S-78-527 (E.D. Cal., filed Oct. 2, 1978).

33. The mootness determination was based on the court's conclusion that the first law was currently inapplicable because fuel reprocessing was neither required nor contemplated in the immediate future and that the third statute was not currently at issue because its berm containment and undergrounding provisions apply only to plants seeking certification in 1980. 9 ELR at 20150.

34. The court held that an individual engineer who lost his job with the San Diego Gas and Electric Company when the utility decided to suspend the Sundesert project had standing because there was a substantial likelihood the project would have proceeded absent the state certification requirements. The state law was thus an independent cause of the utility's termination of the plaintiff. Judge Enright then relied on the Supreme Court's opinion last term in Duke Power Co. v. Carolina Environmental Study Group, Inc. 438 U.S. 59, 8 ELR 20545 (1978), in ruling that this indirect causal connection was sufficient to provide standing. See also Comment, Judges as Statesmen: U.S. Supreme Court Jumps Standing Hurdles to Uphold Price-Anderson Act, 8 ELR 10162 (1978).

35. 42 Fed. Reg. 34391 (July 5, 1977).

36. This apparent suggestion that any type of state regulation of nuclear power is at least indirectly aimed at protecting against radiation hazards would seem to allow the limitation at the end of § 274(k) to swallow the whole of that section and leave the states no regulatory role whatever.

37. See 42 U.S.C. §§ 2011(b), 2013(d).

38. 9 ELR at 20153.

39. 328 U.S. 152 (1946).

40. 16 U.S.C. § 791a et seq.

41. 42 U.S.C. § 7422, ELR STAT. & REG. 42228; see note 21 supra.

42. 42 U.S.C. §§ 5801-5891.

43. 42 U.S.C. §§ 7101, 7112.

44. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 8 ELR 20545 (1978); see Comment, Judges as Statesmen: U.S. Supreme Court Jumps Standing Hurdles to Uphold Price-Anderson Act, 8 ELR 10162 (1978).

45. 435 U.S. 519, 8 ELR 20288 (1978); see Comment, Vermont Yankee: Supreme Court Sets New Limits on Judicial Review of Agency Rule Making, 8 ELR 10103 (1978).

46. See e.g., Northern California Ass'n to Preserve Bodega Head and Harbor v. Public Utilities Commission, 61 Cal. 2d 126, 390 P.2d 200 (1964).

47. See note 14 supra.

48. ME. REV. STAT. tit. 10, § 253.

49. MONT. REV. CODES ANN. § 69-5817 et seq.

50. VT. STAT. ANN, tit. 30, § 248(c).

51. ORE. REV. STAT. § 469.300 et seq.

52. Id. §§ 469.320, 469.510(2).

53. See e.g., MD. NAT. RES. CODE ANN. § 3-301 et seq., VT. STAT. ANN. tit. 30, § 248(b); WASH. REV. CODE ANN. § 80.50.010 et seq.

54. Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission, No. S-78-527 (E.D. Cal., filed Oct. 2, 1978).

55. See note 9 supra.

56. See authorities cited at notes 44 & 45 supra.

57. S. 2775 & H.R. 11704, 95th Cong., 2d Sess., § 202 (1978). See Comment, Facilitiating the Nuclear Alternative: Administration Submits Licensing Reform Proposal, 8 ELR 10087, 10090 (1978).