Long Island Lighting Co. v. County of Suffolk

Nos. CV 86-0174; -0355 (628 F. Supp. 654) (E.D.N.Y. February 10, 1986)

ELR Digest

The court holds that the Atomic Energy Act preempts a county law criminalizing participation in emergency response tests involving simulation of local government roles. The Suffolk County law, the latest chapter in the protracted struggle over the future of the Shoreham nuclear facility in New York, makes is a crime to participate in emergency response testing if the test involves the simulation of the roles of county officials, and the county legislature has voiced its disapproval. The law was intended to prevent the utility from performing a test of the off-site portion of its radiological emergency response plan (RERP), which is required by the Nuclear Regulatory Commission (NRC) before it will issue a full power operating license. The utility company and the United States brought this action to enjoin enforcement of the law so that the test could be conducted on February 13 as scheduled.

The court first holds that the enormous economic costs that the utility would suffer if the test must be rescheduled constitute irreparable harm. The court next holds that the utility has demonstrated a likelihood of success on the merits. After tracing the development of the role of the federal and state governments in the regulation of nuclear energy, the court concludes that Congress did not intend to allow local governments to frustrate the NRC's ability to evaluate a utility's RERP. The court rules that off-site testing of an RERP is governed solely by federal law because it is an integral part of the regulation of nuclear safety. The court then holds that the Suffolk County law impermissibly interferes with the federal government's regulation in this area. First, the threat of criminal prosecution under the law could prevent the utility from conducting the test, which would interfere with the NRC's ability to evaluate the RERP. Second, the county did not articulate a nonsafety rationale for the law. Although the county's stated concern is with the usurpation of its police power through the simulation of county functions by a private utility, the law is actually another attempt by the county to prevent operation of a nuclear facility it considers unsafe. The court distinguishes the California statute upheld by the Supreme Court in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 13 ELR 20519. While Pacific Gas involved a preconstruction moratorium for which the state had articulated a nonsafety rationale, this case involves interference with the NRC's postconstruction licensing process. Finally, the court holds that the United States' claims are not moot even though the county has indicated that the law will not apply to federal officials involved in the test. The law interferes with the federal government's ability to monitor the utility and evaluate its performance. Having concluded that the utility has a likelihood of success on the merits, the court grants the preliminary injunction.

The full text of the opinion is available from ELR (31 pp. $6.00, ELR Order No. 1352).

Counsel for Plaintiffs
Hunton & Williams
100 ParkAve., 10th Fl., New York NY 10017
(212) 309-1000

Raphael Gomez, Richard K. Willard
Civil Division
Department of Justice, Washington DC 20530
(202) 633-5534

Counsel for Defendants
Martin B. Ashare
Suffolk County Department of Law
158 N. County Complex, Hauppauge NY 11788
(516) 360-4542

Herbert C. Brown, Lawrence C. Lanpher, David Brownlee
Kirkpatrick & Lockhart
1900 M St. NW, Washington DC 20036
(202) 452-7000

Counsel for Plaintiff-Intervenors
Ronald A. Zumbrun, Sam Kazman, Lucinda Low Swartz
Pacific Legal Foundation
1990 M St. NW, Suite 550, Washington DC 20036
(202) 466-2686

Lou Lewis
55 Market St., Poughkeepsie NY 12601
(914) 454-1200

Wexler, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]