Pacific Legal Foundation v. State Energy Resources

• Decision Date: 06 March 1979
• Docket Number: Civ. No. 78-711-E.
• Court: U.S. District Court — Southern District of California
• Parties: PACIFIC LEGAL FOUNDATION, a nonprofit California Corporation, the San Diego Coalition, a nonprofit California Corporation, San Diego Section of the American Nuclear Society, a New York Corporation, San Diego County Building and Construction Trades Council, a labor organization, and Robert C. Thornberry, an individual, Plaintiffs, v. STATE ENERGY RESOURCES CONSERVATION & DEVELOPMENT COMMISSION, a state agency, Richard L. Maullin, Chairman, and Commissioners Emilio E. Varanini, III, Arland D. Pasternak, C. Suzanne Reed, and Ronald D. Doctor, Defendants. Natural Resources Defense Council, Inc., The Sierra Club; Environmental Defense Fund; Californians for Nuclear Safeguards, Defendants-Intervenors.

472 F. Supp. 191

PACIFIC LEGAL FOUNDATION, a nonprofit California Corporation, the San Diego Coalition, a nonprofit California Corporation, San Diego Section of the American Nuclear Society, a New York Corporation, San Diego County Building and Construction Trades Council, a labor organization, and Robert C. Thornberry, an individual, Plaintiffs, v. STATE ENERGY RESOURCES CONSERVATION & DEVELOPMENT COMMISSION, a state agency, Richard L. Maullin, Chairman, and Commissioners Emilio E. Varanini, III, Arland D. Pasternak, C. Suzanne Reed, and Ronald D. Doctor, Defendants.

Natural Resources Defense Council, Inc., The Sierra Club; Environmental Defense Fund; Californians for Nuclear Safeguards, Defendants-Intervenors.

Civ. No. 78-711-E.

United States District Court, S. D. California.

March 6, 1979.

Ronald A. Zumbrun, Raymond M. Momboisse, Robin L. Rivett, Pacific Legal Foundation, Sacramento, Cal., for plaintiffs.

Richard M. Mosk, Marilyn E. Levine, Mitchell, Silberberg & Knupp, Los Angeles, Cal., William M. Chamberlain, Gen. Counsel, Mark J. Urban, Kathryn Burkett Dickson, Deputy Gen. Counsel, Calif. Energy Resources Conservation and Development Commission, Sacramento, Cal., Antonio Rossman, Sp. Counsel, San Francisco, Cal., for defendants.

Roger Beers, Kenneth A. Manaster, Paul C. Valentine, Palo Alto, Cal., for Natural Resources Defense Council.

David E. Pesonen, San Francisco, Cal., for Californians for Nuclear Safeguards.

Laurens H. Silver, William S. Curtiss, San Francisco, Cal., for the Sierra Club.

David B. Roe, Berkeley, Cal., for Environmental Defense Fund.

MEMORANDUM DECISION

ENRIGHT, District Judge.

This case involves a challenge to the constitutionality of three sections of the California Public Resources Code: sections 25524.1, 25524.2 and 25524.3. Plaintiffs contend that these sections, which impose certain requirements on the certification of nuclear fission thermal power plants in this state, invade a field of regulation which has been preempted by the federal government. Specifically, plaintiffs assert that the Atomic Energy Act of 1954, as amended, 42 U.S.C. §§ 2011-2281 (1970), preempts the state laws in question.

Before the court for resolution are plaintiffs' motion for summary judgment, defendants' motion to reconsider the motion to dismiss the complaint or, in the alternative, to certify an interlocutory appeal, and cross motions brought to strike the various affidavits and exhibits filed both parties. Upon due consideration of the memoranda filed by the parties, the declarations and exhibits, and the arguments of counsel, and for the reasons set forth herein, the court rules as follows: the motion to reconsider the motion to dismiss is denied, as is the motion to certify an interlocutory appeal, plaintiffs' motion for summary judgment is granted, and the various motions to strike are resolved as set forth below.

Originally, the federal government retained exclusive authority over the development and use of atomic energy. Act of Aug. 1, 1946, ch. 724, 60 Stat. 755. In 1954, Congress recognized that private businesses might play a role in the peaceful development and generation of nuclear power. Congress passed the Atomic Energy Act of 1954, as amended, 42 U.S.C. §§ 2011-2281 (1970), establishing the Atomic Energy Commission (AEC)¹ to regulate and promote the use of nuclear energy. Licensing and regulation of nuclear materials was subject to federal authority, in order to ensure public safety and national security. Id. § 2012.

In 1959, Congress sought to define the States' role in the regulation of nuclear materials by enacting amendments to the Atomic Energy Act. Id. § 2021. The amendments recognized the States' interest in the peaceful use of atomic energy and proposed to establish procedures whereby certain of the AEC's regulatory authority over source, by-product and special nuclear materials could be assumed by the States. The amendments provide for agreements between the governor of a State and the AEC to accomplish this purpose.

The amendments set forth specific limits on the delegation of regulatory authority with regard to nuclear materials. The federal government retained responsibility for regulating "the construction and operation of any production or utilization facility," the import or export of nuclear materials, and the disposal of nuclear materials that the AEC decides shall not be disposed of without a license. Id. § 2021(c). The amendments also provided that the States may regulate "activities for purposes other than protection against radiation hazards." Id. § 2021(k).

In 1974, the California legislature enacted the Warren-Alquist State Energy Resources Conservation and Development Act, establishing a comprehensive power-plant siting procedure for new thermal-electric power plants and vesting exclusive jurisdiction to approve such power plants in the State Energy Resources Conservation and Development Commission. Cal.Pub.Res.Code §§ 25000-25968. The Energy Commission must review safety and reliability factors for all types of thermal power plants. Id. §§ 25001 & 25511. In 1976, three statutes imposing certain requirements for the construction of nuclear power plants were added. Cal.Pub.Res.Code §§ 25524.1, 25524.2 & 25524.3. These three sections are the subject of the instant lawsuit. Plaintiffs contend that these three sections of the Public Resources Code, referred to herein as the California Nuclear Laws, invade a field of regulation which has been preempted by the federal government under the Atomic Energy Act of 1954.

California Public Resources Code section 25524.1(a) provides that no new nuclear fission thermal power plant requiring the reprocessing of fuel rods shall be permitted land use in the state or certified by the Energy Commission until (1) the Energy Commission finds that the United States agency has approved a technology for the construction and operation of nuclear fuel rod reprocessing plants and (2) the commission has reported its findings to the state legislature, which has the power to disaffirm them. Subsection (b) of this statute requires the state commission to make a case-by-case determination that adequate fuel rod reprocessing capacity or waste storage capacity will be available by the time a particular facility requires reprocessing or waste storage.

Section 25524.2 provides that no nuclear power plant shall be certified by the state commission until it finds (1) that the authorized United States agency has approved a technology for disposal of high-level nuclear wastes and (2) the commission has reported its findings to the state legislature, which has the power to disaffirm them.

Section 25524.3 applies to nuclear power plants for which notices of intent are filed with and accepted by the state commission after January 1, 1980. The commission cannot certify these plants until (1) the commission completes a study of the necessity, effectiveness and economic feasibility of berm containment and locating reactors under ground and (2) the legislature evaluates the study.

California Public Resources Code section 25524.25 required the California Energy Commission to inform the legislature by January 1978 whether the findings on fuel rod reprocessing and waste disposal could be made. The Energy Commission has concluded that section 25524.1(a), referring only to power plants that require nuclear fuel rod reprocessing, is not applicable because reprocessing is not required by the federal government nor required by technical operational requirements. In the Matter of Implementation of Nuclear Reprocessing and Waste Disposal Statutes, No. 76-NL-1, 76-NL-3, at 5 (Jan. 25, 1978). As to subsection 25524.1(b), the commission determined that it will, as mandated by statute, evaluate on a case-by-case basis the fuel storage capacity at individual reactor sites. Id. The commission found that the findings required by section 25524.2 could not be made because the federal agencies have not approved a waste disposal technology. Id.

With respect to section 25524.3, the commission has reported that rules and regulations on undergrounding and berm containment are not warranted. Staff of California Energy Commission, Draft, Underground Siting of Nuclear Power Reactors: An Option for California: A Summary of the Technical and Economic Implications with Recommendations iv, v, xi, 9-4 (June 1978). The Energy Commission has adopted this report. In the Matter of Determinations of the Commission Pursuant to Public Resources Code Section 25524.3, No. 76-NL-2 (Sept. 13, 1978).

I

As a preliminary matter, the court notes that sections 25524.1 and 25524.3 have been rendered moot by the decisions of the California Energy Commission. The commission has determined that section 25524.1(a) does not apply to any reactors proposed for California. Section 25524.1(b) requires a case-by-case evaluation of fuel storage capacity at individual reactor sites. No particular storage capacity is specified. Plaintiffs have failed to demonstrate how this section impedes the development of nuclear power in California.

Similarly, section 25524.3 is not implicated in the present controversy. By its terms, this section applies only to power plants for which a notice of intent is accepted after January 1, 1980.

Plaintiffs argue that the federal government could reinstitute a reprocessing requirement, at which time the California statute would apply. In the event that action occurred, plaintiffs could institute a challenge at that time. Issues will not be found moot if they are capable of repetition, yet likely to evade review. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). While the issues presented here might be capable of repetition, plaintiffs have not shown that these issues are likely to evade review if a reprocessing requirement is instituted.

Accordingly, the court concludes that only section 25524.2, requiring the existence and approval of a...