Lloyd Harbor Study Group, Inc. v. Seaborg

No. 70 Civ. 1253 (2 ERC 1380) (E.D.N.Y. April 2, 1971)

Atomic Energy Commission's denial of request at hearing to consider evidence of nonradiological thermal pollution, and refusal to determine effects of National Environmental Policy Act of 1969 in permit hearings on construction of New York nuclear power station, not reviewable by federal district court. But AEC warned that such denial invites reversal by federal circuit court of appeals after final administrative action.

Counsel for Plaintiffs:
David Sive
Winer, Neuburger & Sive
445 Park Avenue
New York, New York 10022
(212) 421-2150

Counsel for Intervenor, State of New York:
Louis J. Lefkowitz Attorney General
Philip Weinberg
Paul S. Shemin Assistant Attorneys General
State of New York
Albany, New York
(513) 474-7330

Counsel for Defendants:
Edward R. Neaher United States Attorney
Richard C. Antonacci Assistant U.S. Attorney
Brooklyn, New York 11201
(212) 596-5700

[1 ELR 20188]

MEMORANDUM AND ORDER

Weinstein, D.J.

For many months an Atomic Safety and Licensing Board (the Board) has been holding hearings in connection with the Long Island Lighting Company (LILCO) application for a permit to construct a nuclear power plant in Shoreham, Long Island. 42 U.S.C. § 2241; 35 Fed. Reg. 3693 (1970). The Board's decision after the hearing will be subject to review by the Atomic Safety and Licensing Appeal Board and the Atomic Energy Commission (A.E.C.). 10 C.F.R. §§ 2.785, 2.786. Further hearings and review may be requested before any operating license is issued. 42 U.S.C. § 2239(a); 10 C.F.R. §§ 50.40, 50.57, 50.58(b). Cf. 10 C.F.R., Part 2, Subpart B; 10 C.F.R. § 50.54(e); 10 C.F.R., Part 50, Appendix D, 35 Fed. Reg. 18469, Dec. 4, 1970. Any final decision of the A.E.C. is subject to appeal to the Court of Appeals. 5 U.S.C. §§ 701-706; 28 U.S.C. §§ 2341, 2342, 2344; 42 U.S.C. § 2239.

The Lloyd Harbor Study Group (Lloyd Harbor), a privately financed group of citizens incorporated to protect the environment of the residents of Long Island, intervened in the Board's hearings. So, too, did the State of New York.

In March of last year Lloyd Harbor sought a ruling from the Board on the effect the National Environmental Policy Act of 1969 would have on the hearings. Public Law 91-190, 83 Stat. 852, 42 U.S.C. §§ 4331, et seq. The Board, by ruling on evidence, took the position that it would not hear evidence in connection with any nonradiological environmental effects of the proposed power plant. Administrative Appeals to the Atomic Safety and Licensing Board proved fruitless. Cf. 10 C.F.R., Part 50, Appendix D, 35 Fed. Reg. 18469, requiring consideration of environmental factors in proceedings in which the notice of hearing is published after March 3, 1971.

An action was then brought in this Court by Lloyd Harbor in October of 1970. It seeks a declaration that the rulings of the Board and the A.E.C. were illegal; and order enjoining defendants from continuing the Shoreham proceeding and directing the Board to take evidence concerning thermal-pollution effect of the proposed Shoreham plant and otherwise complying with the terms of the National Environmental Policy Act of 1969; and other relief. The State of New York and LILCO have intervened in this action.

Despite the fact that the hearings before the Board are approaching an end plaintiffs have not sought a temporary restraining order or preliminary injunction. On oral argument counsel for Lloyd Harbor indicated that no such application was made because the environmental evidence is independent of the evidence submitted to the Board on other [1 ELR 20189] issues. It can be, according to him, introduced as a unit at any time without affecting other issues before the Board.

Defendants have now moved to dismiss this action on the ground that only a "final order" of the A.E.C. in a proceeding for the granting of a construction permit is subject to judicial review. See 28 U.S.C. §§ 2341-2352; 5 U.S.C. §§ 701-706. There has been no final order issued by the A.E.C. and there will be none until after the Board completes its hearings and its decision is appealed to the A.E.C. For the reasons stated below this motion must be granted.

Under almost precisely the same circumstances the Circuit Courts of Appeals for the District of Columbia and for the Seventh Circuit have decided that a decision such as that made by the Board in this case may not be challenged before there is a final order of the A.E.C. See Thermal Ecology Must Be Preserved v. Atomic Energy Commission, 433 F.2d 524 (D.C. Cir. 1970); Thermal Ecology Must Be Preserved v. Atomic Energy Commission, No. 18687 (7th Cir., Aug. 24, 1970). It is not a valid basis for distinction that in the Thermal Ecology cases the plaintiff sought a stay of the proceedings while in the instant case both a stay of the proceedings and an order directing the Board to take evidence on thermal-pollution and other environmental dangers is requested. The issue for all practical purpose is the same: should the federal courts intervene in the administrative proceedings at this early stage?

The Attorney General of the State of New York and attorneys for Lloyd Harbor have submitted learned briefs in opposition to the motion to dismiss. There is considerable merit in their position. Neither the ripeness, exhaustion of administrative remedies, nor the finality doctrines provide an absolute barrier to intervention by the courts when necessary to prevent a grave miscarriage of justice or frustration of national policy; a "flexible approach" is required. L. Jaffe, Judicial Control of Administration Action, 423 (1965). We are not convinced, however, that there would be any substantial gain to any party by a District Court's assuming jurisdiction in a case such as this one.

The A.E.C. may decide not to grant the license on the basis of the evidence already adduced in which case the matter would be moot. Or if it decides to issue a license and the Circuit Court on review decides that the environmental issues should have been considered, a relatively short and fully integrated hearing on environmental issues can be quickly conducted. LILCO, a defendant, is the one party which might have reason to object that such additional hearings would postpone start-up of the plant, but it supports the motion to dismiss. The delay itself does not inflict injury on plaintiff. Cf. Environmental Defense Fund v. Hardin, 428 F.2d 1093, 1098 (D.C. Cir. 1970).

Were this Court to entertain jurisdiction in such cases, a whole additional set of proceedings would be added. It seems evident that an appeal would be taken by the defendants to the Court of Appeals from any decision favoring plaintiff. In the instant case the Board has resisted suggestions by the Court in the course of oral argument that it take the proffered evidence. Also rejected was a like suggestion by the United States Court of Appeals for the Seventh Circuit and the District of Columbia Court of Appeals.

which warned that the A.E.C. in excluding such evidence "is courting the possibility that if error is found a court will reverse its final order, condemn its proceeding as so much waste motion, and order that the proceeding be conducted over again in a way that realistically permits a de nova consideration of the tendered evidence." Thermal Ecology Must Be Preserved v. Atomic Energy Commission, No. 18687 (7th Cir., Aug. 24, 1970).

Litigation expenses and the possibility that plaintiff will not have the financial resources to litigate fully are factors to be considered in balancing equities in a case such as this. L. Jaffe, Judicial Control of Administrative Action 403 (1965); Berger, Administrative Arbitrariness and Judicial Review, 65 Colum. L. Rev. 55, 85 (1965). But, as already noted, it is not clear that expenses will be reduced by permitting this preliminary attack in the District Court with appeals when there is almost certain to be an additional series of administrative appeals followed by review in the Federal Court of Appeals of the final administrative order. In any event, the fact that the State of New York has added its resources to that of plaintiff has minimized chances that justice will be frustrated by a lack of financial capacity to litigate.

Were the question merely one of whether the District Court should review the administrative decision now or later and in a piece-meal or a completely integrated way, we would be more inclined to consider the matter now. But the Courts of Appeals and not the District Courts are designated by Congress as the appropriate judicial body for review. 28 U.S.C. §§ 2341, 2342, 2344. The District Court has no place in the supervision of this phase of the work of the A.E.C. The decision on timing would have an inappropriate effect in determining which judicial body conducted the review. Whatever doubt the Court might have entertained about the exercise of jurisdiction in this matter is resolved by its desire not to thwart the Congressional scheme.

The complaint is dismissed without costs.

So ordered.