Northern States Power Company v. State of Minnesota

• Citation: 447 F.2d 1143
• Decision Date: 07 September 1971
• Docket Number: No. 71-1093.,71-1093.
• Parties: NORTHERN STATES POWER COMPANY, Appellee, v. The STATE OF MINNESOTA, the Minnesota Pollution Control Agency, et al., Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

447 F.2d 1143 (1971)

NORTHERN STATES POWER COMPANY, Appellee, v. The STATE OF MINNESOTA, the Minnesota Pollution Control Agency, et al., Appellants.

No. 71-1093.

United States Court of Appeals, Eighth Circuit.

September 7, 1971.

G. Robert Johnson, Sp. Asst. Atty. Gen., Warren Spannaus, Atty. Gen. of Minnesota, George Reilly, Chief Deputy Atty. Gen., Minneapolis, Minn., for appellants.

Edward J. Schwartzbauer, Dorsey, Marquart, Windhorst, West & Halladay, William J. Hempel, and Donald E. Nelson, Minneapolis, Minn., for appellee.

Francis B. Burch, Atty. Gen. of Maryland, Thomas M. Downs, Asst. Atty. Gen., Annapolis, Md., for State of Maryland, amici curiae.

James M. Jeffords, Atty. Gen. of Vermont, Montpelier, Vt., amicus curiae of State of Vermont in opposition to granting relief requested in appellee's complaint.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Jerome Maslowski, Francis J. Carrier, Asst. Attys. Gen., Lansing, Mich., amici curiae of Michigan Department of Natural Resources and Michigan Department of Public Health.

Before MATTHES, Chief Judge, and VAN OOSTERHOUT and BRIGHT, Circuit Judges.

MATTHES, Chief Judge.

The central question posed by this litigation is whether the United States Government has the sole authority under the doctrine of pre-emption to regulate radioactive waste releases from nuclear power plants to the exclusion of the states. The United States District Court for the District of Minnesota answered affirmatively and its decision is here for review. We affirm.

This suit was commenced in August of 1969 by plaintiff-appellee, Northern States Power Company, hereinafter referred to as Northern, against the State of Minnesota, the Minnesota Pollution Control Agency and the Agency director, secretary and members, all hereinafter referred to as Minnesota. Northern sought a judgment declaring Minnesota to be without authority to regulate radioactive waste releases to the environment from Northern's Monticello nuclear power plant.

It was agreed between the parties that no factual issues were in dispute; that the controversy should be decided on the basis of oral and written stipulations and upon the briefs; and that the sole issue to be determined was whether the federal government, through the United States Atomic Energy Commission (hereinafter AEC), had exclusive authority to regulate the radioactive waste releases from nuclear power plants so as to preclude Minnesota from exercising any regulatory authority over the release of such discharges from the Monticello plant. On December 22, 1970, Chief Judge Devitt filed a memorandum opinion and declaration favorable to Northern. This decision is reported at 320 F.Supp. 172. This appeal is from the final judgment entered on March 17, 1971.

The relevant facts are: Northern is a Minnesota corporation engaged in the generation, production, transmission, distribution and sale of electric power in the States of Minnesota, North Dakota, South Dakota and also in Wisconsin through a wholly-owned subsidiary. It is undisputed that Northern is engaged in interstate commerce. This action was spawned by the nuclear utilization facility consisting of a nuclear-fueled electric generating plant located on the banks of the Mississippi River near Monticello, Wright County, Minnesota. Construction of the Monticello plant was authorized by a provisional permit issued June 19, 1967, by the AEC pursuant to Section 104(b) of the Atomic Energy Act of 1954, as amended (42 U.S.C. § 2134(b)), and the regulations contained in 10 C.F.R. Part 50.

Northern applied to the Minnesota Pollution Control Agency for a waste disposal permit for the Monticello plant. It was issued May 20, 1969, subject to specified conditions regulating the level of radioactive liquid and gaseous discharges and requiring monitoring programs for the detection of such releases. The conditions imposed by Minnesota embrace the same area as, but are substantially more stringent than, those imposed by the AEC under the federal law. On January 19, 1971, the AEC issued a provisional operating license to Northern under which Monticello is currently operating. For purposes here pertinent, it is undisputed that Northern is acting in compliance with all federal laws and with the radiation safety requirements of the AEC.

In urging reversal of the district court's judgment, Minnesota asserts that the regulation of radioactive waste releases to the environment is within the State's traditional power under the Tenth Amendment to protect and promote the health, safety and general welfare of its citizens. Minnesota also vigorously maintains that the Atomic Energy Act of 1954, as amended, neither expressly nor impliedly pre-empts the State's authority to regulate radioactive waste releases by nuclear power plants. Finally, Minnesota contends that even if Congress did intend to pre-empt this area of regulation, this would not preclude concomitant regulation by the State. Conversely, in support of the district court's judgment, Northern asserts that the Act, as amended, together with its legislative history, evince a clear Congressional intent that the AEC have exclusive authority and control over the disputed field of regulation. In support of its position of federal pre-emption, Northern also argues that the development and utilization of nuclear energy is an area demanding uniform policies and controls which can only properly be effectuated on a national scale.

It is appropriate to observe that the question of federal pre-emption of the subject matter involved is one of first impression in the federal appellate courts. We realize too that our decision may affect future relationships between other states and other public utility companies who enter the still evolutionary field of nuclear reactor energy production. The many amici briefs filed in this appeal have not only been helpful in our consideration of this case,¹ but have served as an indicator of the widespread interest generated by this litigation. Finally, we are cognizant that apart from the significant and controlling legal issue, the subject of this appeal is collaterally pervaded by currently compelling controversies concerning the need to supply power to an ever burgeoning population, coupled with the newly recognized importance of maintaining an ecological balance and also with the whole Pandora's box of problems in the area of federal-state relationships and responsibilities.

The doctrine of federal pre-emption has its roots in Article VI, Clause 2 of the United States Constitution, the "Supremacy Clause," which elevates federal law above that of the States. It provides:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

On the other hand, under the Tenth Amendment to the Constitution "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Thus, in the approach to any inquiry into federal preemption, it must be initially determined that Congressional action establishing federal regulation in a particular field has been undertaken pursuant to one of the powers delegated to the United States by the Constitution. Cf. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 229-230, 67 S.Ct. 1146, 91 L. Ed. 1447 (1947).

Once it is ascertained that the federal government possesses the power to regulate in a given area, the question is whether Congress has exercised its power of legislation in such a manner as to exclude the states from asserting concurrent jurisdiction over the same subject matter.

First, as the Supreme Court noted in Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), "a holding of federal exclusion of state law is inescapable and requires no inquiry into congressional design where compliance with both federal and state regulations is a physical impossibility * * *" See also, Case v. Bowles, 327 U.S. 92, 102-103, 66 S.Ct. 438, 90 L.Ed. 552 (1946); Franklin Nat'l Bank v. New York, 347 U.S. 373, 378-379, 74 S. Ct. 550, 98 L.Ed. 767 (1954); Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 156, 62 S.Ct. 491, 86 L.Ed. 754 (1942).

Second, absent inevitable collision between the two schemes of regulation it must be determined whether Congress manifested an intent to displace coincident state regulation in a given area. Where Congress has unequivocally and expressly declared that the authority conferred by it shall be exclusive, then there is no doubt but that states cannot exert concomitant or supplementary regulatory authority over the identical activity. Campbell v. Hussey, 368 U.S. 297, 302, 82 S.Ct. 327, 7 L.Ed.2d 299 (1961); Rice v. Santa Fe Elevator Corp., supra, 331 U.S. at 235-236, 67 S. Ct. 1146, 91 L.Ed. 1447.

Third, even where Congress has not expressly prohibited dual regulation nor unequivocally declared its exclusionary exercise of authority over a particular subject matter, federal pre-emption may be implied. Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U.S. 767, 772, 67 S.Ct. 1026, 91 L.Ed. 1234 (1947); Napier v. Atlantic Coast Line R.R., 272 U.S. 605, 613, 47 S.Ct. 207, 71 L.Ed. 432 (1926). Key factors in the determination of whether Congress has, by implication, preempted a particular area so as to preclude state attempts at dual regulation include, inter alia: (1) the aim and intent of Congress as revealed by the statute itself and its legislative history, Florida Lime & Avocado Growers, Inc. v. Paul, supra, 373 U.S. at 147-150, 83 S.Ct. 1210; Campbell v. Hussey, supra, 368 U.S. at 301-302, 82 S.Ct. 327;...