461 U.S. 190 (1983), 81-1945, Pacific Gas And Elec. Co. v. State Energy Resources Conservation & Development Com'n

Docket Nº:No. 81-1945.
Citation:461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752
Case Date:April 20, 1983
Court:United States Supreme Court

Page 190

461 U.S. 190 (1983)

103 S.Ct. 1713, 75 L.Ed.2d 752




No. 81-1945.

United States Supreme Court.

April 20, 1983

Argued Jan. 17, 1983.

[103 S.Ct. 1715] Syllabus[*]


Section 25524.1(b) of the California Public Resources Code provides that before a nuclear powerplant may be built, the State Energy Resources Conservation and Development Commission must determine on a case-by-case basis that there will be "adequate capacity" for interim storage of the plant's spent fuel at the time the plant requires such storage. Section 25524.2 imposes a moratorium on the certification of new nuclear plants until the State Commission finds that there has been developed and that the United States through its authorized agency has approved a demonstrated technology or means for the permanent and terminal disposal of high-level nuclear wastes. Petitioner electric utilities filed an action in Federal District Court seeking a declaration that these provisions, inter alia, are invalid under the Supremacy Clause because they were pre-empted by the Atomic Energy Act of 1954. The District [103 S.Ct. 1716] Court, after finding that the issues presented by the two provisions were ripe for adjudication, held that they were pre-empted by and in conflict with the Atomic Energy Act. The Court of Appeals agreed that the challenge to § 25524.2 was ripe for review, but found that the challenge to § 25524.1(b) was not because it could not be known whether the State Commission will ever find a nuclear plant's storage capacity to be inadequate. The court went on to hold that § 25524.2 was not designed to provide protection against radiation hazards but was adopted because uncertainties in the nuclear fuel cycle make nuclear power an uneconomical and uncertain source of energy, and therefore that the section was not pre-empted because §§ 271 and 274(k) of the Atomic Energy Act constituted authorization for States to regulate nuclear powerplants for purposes other than protection against radiation hazards. The court further held that § 25524.2 was not invalid as a barrier to fulfillment of the federal goal of encouraging the development of atomic energy.


1. The challenge to § 25524.2 is ripe for judicial review, but the questions concerning § 25524.1(b) are not. Pp. 1720-1722.

(a) The question of ripeness turns "on the fitness of the issues for judicial decision" and "the hardship to the parties of withholding court

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consideration." Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681. Both of these factors counsel in favor of finding the challenge to § 25524.2 ripe for adjudication. The question of pre-emption is predominately legal and to require the industry to proceed without knowing whether the moratorium imposed by § 25524.2 is valid would impose a palpable and considerable hardship on the utilities, and may ultimately work harm on the citizens of California. Moreover, if § 25524.2 is void as hindering commercial development of atomic energy, delayed resolution would frustrate one of the key purposes of the Atomic Energy Act. Pp. 1720-1721.

(b) Under circumstances where it is uncertain whether the State Commission will ever find a nuclear plant's interim storage capacity to be inadequate, and where, because of this Court's holding, infra, that § 25524.2 is not pre-empted by federal law, it is unlikely that industry behavior would be uniquely affected by such uncertainty surrounding the interim storage provision, a court should not stretch to reach an early, and perhaps a premature, decision respecting § 25524.1(b). P. 1721.

2. Section 25524.2 is not pre-empted by the Atomic Energy Act. P. 1722.

(a) From the passage of the Atomic Energy Act in 1954, through several revisions, and to the present day, Congress has preserved the dual regulation of nuclear-powered electricity generation: the Federal Government maintains complete control of the safety and "nuclear" aspects of energy generation, whereas the States exercise their traditional authority over economic questions such as the need for additional generating capacity, the type of generating facilities to be licensed, land use, and ratemaking. This Court accepts California's avowed economic rather than safety purpose as the rationale for enacting § 25524.2, and accordingly the statute lies outside the federally occupied field of nuclear safety regulation. Pp. 1722-1728.

(b) Section 25524.2 does not conflict with federal regulation of nuclear waste disposal, with the decision of the Nuclear Regulatory Commission (NRC) that it is permissible to continue to license reactors, notwithstanding uncertainty surrounding the waste disposal problem, or with Congress' recent passage of the Nuclear Waste Policy Act of 1982 directed at that problem. Because the NRC's decision does not and could not compel a utility to develop a nuclear plant, compliance with both that decision and § 25524.2 is possible. Moreover, because the NRC's regulations are aimed at insuring that plants are safe, not necessarily that they are economical, § 25524.2 does not interfere with the objective of those regulations. And as there is [103 S.Ct. 1717] no attempt on California's part to enter the field of developing and licensing nuclear waste disposal technology, a field occupied by the Federal Government, § 25524.2 is not pre-empted any more by the NRC's obligations in the waste disposal

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field than by its licensing power over the plants themselves. Nor does it appear that Congress intended through the Nuclear Waste Policy Act of 1982 to make the decision for the States as to whether there is now sufficient federal commitment to fuel storage and waste disposal that licensing of nuclear reactors may resume. Moreover, that Act can be interpreted as being directed at solving the nuclear waste disposal problem for existing reactors without necessarily encouraging or requiring that future plant construction be undertaken. Pp. 1729-1730.

(c) Section 25524.2 does not frustrate the Atomic Energy Act's purpose to develop the commercial use of nuclear power. Promotion of nuclear power is not to be accomplished "at all costs." Moreover, Congress has given the States authority to determine, as a matter of economics, whether a nuclear plant vis-a-vis a fossil fuel plant should be built. California's decision to exercise that authority does not, in itself, constitute a basis for pre-emption. Pp. 1730-1732.

659 F.2d 903, affirmed.


John R. McDonough argued the cause for petitioners. With him on the briefs wasHoward B. Soloway.

Deputy Solicitor General Claiborne argued the cause for the United States asamicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General McGrath, John H. Garvey, Leonard Schaitman, andAl J. Daniel, Jr.

Laurence H. Tribe argued the cause for respondents. With him on the brief wereRoger Beers, William M. Chamberlain, Dian Grueneich, and Ralph Cavanagh.*

* Briefs of amici curiae urging reversal were filed by Leonard M. Trosten, Eugene R. Fidell, and Linda L. Hodge for the Atomic Industrial Forum; by John M. Cannon and Susan W. Wanat for Hans A. Bethe et al.; by Joseph B. Knotts, Jr., and Robert L. Baum for the Edison Electric Institute; by Max Dean for the Fusion Energy Foundation; by David Crump and Wilkes Robinson for the Legal Foundation of America; and by Ronald A. Zumbrun, Robin L. Rivett, Raymond M. Momboisse, and Sam Kazman for the Pacific Legal Foundation et al.

Briefs of amici curiae urging affirmance were filed for the State of Alaska et al. by Robert Abrams, Attorney Genral of New York, Peter H. Schiff, and Ezra I. Bialik, Assistant Attorney General; Wilson L. Condon, Attorney General of Alaska, and Douglas K. Mertz, Assistant Attorney General; Robert K. Corbin, Attorney General of Arizona, and Anthony B. Ching, Solicitor General; John Steven Clark, Attorney General of Arkansas; Tany S. Hong, Attorney General of Hawaii, and Michael A. Lilly, First Deputy Attorney General; Robert T. Stephan, Attorney General of Kansas, Robert Vinson Eye, Assistant Attorney General, andBrian J. Moline; William J. Guste, Jr., Attorney General of Louisiana, andKendall L. Vick, Assistant Attorney General; Warren Spannaus, Attorney General of Minnesota, and Jocelyn F. Olson Special Assistant Attorney General; Bill Allain, Attorney General of Mississippi, and Mack Cameron, Special Assistant Attorney General; Mike Greely, Attorney General of Montana, and Mike McGrath, Assistant Attorney General; Richard H. Bryan, Attorney General of Nevada, andLarry Struve, Chief Deputy Attorney General; William J. Brown, Attorney General of Ohio, and E. Dennis Muchnicki, Assistant Attorney General; Jan Eric Cartwright, Attorney General of Oklahoma, and Sara J. Drake, Assistant Attorney General; Daniel R. McLeod, Attorney General of South Carolina, and Richard P. Wilson, Assistant Attorney General; John J. Easton, Jr., Attorney General of Vermont, and Merideth Wright, Assistant Attorney General; Chauncey H. Browning, Attorney General of West Virginia, and Robert R. Rodecker; Steven F. Freudenthal, Attorney General of Wyoming, and Walter Perry III, Senior Assistant Attorney General; for the State of Connecticut by Carl R. Ajello, Attorney General, Robert S. Golden, Jr., Assistant Attorney General, and Neil T. Proto, Special Assistant Attorney General; for the State of Maine by James E. Tierney, Attorney General, Rufus E. Brown, Deputy Attorney General, H. Cabanne Howard, Senior Assistant Attorney General, and Gregory W. Sample, Assistant Attorney General; for the Commonwealth of Massachusetts by Francis X. Bellotti, Attorney General, and Stephen M. Leonard, Assistant Attorney General; for the State of Illinois et al. by Gregory H. Smith,...

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