550 F.2d 745 (2nd Cir. 1977), 1097, State of N.Y. v. Nuclear Regulatory Com'n

Docket Nº:1097, 1098 and 1261, Dockets 75-6115, 76-6022 and 76-6081.
Citation:550 F.2d 745
Party Name:The STATE OF NEW YORK, Plaintiff-Appellant, v. The NUCLEAR REGULATORY COMMISSION et al., Defendants-Appellees.
Case Date:February 14, 1977
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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550 F.2d 745 (2nd Cir. 1977)

The STATE OF NEW YORK, Plaintiff-Appellant,

v.

The NUCLEAR REGULATORY COMMISSION et al., Defendants-Appellees.

Nos. 1097, 1098 and 1261, Dockets 75-6115, 76-6022 and 76-6081.

United States Court of Appeals, Second Circuit

February 14, 1977

Argued July 21, 1976.

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Joseph J. Zedrosser, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., Philip Weinberg and John F. Shea, III, Asst. Attys. Gen., New York City, on the brief), for plaintiff-appellant.

Charles Franklin Richter, Asst. U.S. Atty., New York City (Robert B. Fiske, Jr., U.S. Atty., Nathaniel L. Gerber and Samuel J. Wilson, Asst. U.S. Attys., New York City, on the brief), for defendants-appellees.

Before WATERMAN and MESKILL, Circuit Judges and BARTELS, District Judge. [*]

WATERMAN, Circuit Judge:

This case arises under the National Environmental Policy Act of 1969 ("NEPA"). Plaintiff-appellant State of New York brings a consolidated appeal from three interlocutory orders of the United States District Court for the Southern District of New York, William C. Conner, District Judge. These three orders refused two requests by appellant for preliminary injunctive relief, denied appellant's motion for summary judgment, and granted a motion to dismiss made by two of the defendants-appellees.

Appellant, a sovereign state, commenced this civil action on May 5, 1975 on behalf of itself and, as parens patriae, on behalf of all residents and citizens of the State of New York. Named as defendants were seven federal agencies and the chief executive officer of each agency. 1 Appellant, seeking both declaratory and injunctive relief, asserted in its complaint that each of these agencies exercised a power of regulation or of approval over the transportation by air and related connecting transportation 2 of

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plutonium and other special nuclear material ("SNM") 3 or, in the case of the Energy Research and Development Administration ("ERDA"), that the agency itself made shipments by air of SNM without having to procure licenses or submit the reports which would be required of a private commercial carrier of such material. All the defendants were alleged to have violated Section 102(2) (C) of NEPA, 42 U.S.C. § 4332(2)(C), 4 by licensing, approving, allowing or executing the transportation by air of plutonium and other SNM without having compiled an environmental impact statement ("EIS") relating to the environmental consequences of air shipment of SNM into, out of, within or over the City and State of New York and the United States and its territories. In addition to declaratory relief, appellant also sought the issuance of an order annulling any existing licenses, approvals or other actions of the defendants which permitted the transportation by air of plutonium and other SNM into, out of, within or over the City and State of New York and the United States and its territories. The appellant further prayed that the defendants be enjoined from issuing any such licenses or taking any other actions which would permit or would cause such air shipments in the future to be executed.

Appellees, while never conceding that an EIS is required in the situation presented here, are in the advanced stages of preparing such a document. After some delay from the originally scheduled date of completion, the projected completion date is now set for early February, 1977.

This consolidated appeal consists of appeals from four portions of three interlocutory orders which disposed of two motions for preliminary injunctions, a motion by two defendants to dismiss the complaint as to them and a motion by plaintiff-appellant for summary judgment. The first such order, dated September 9, 1975, denied plaintiff-appellant State of New York's motion for a preliminary injunction. By this motion plaintiff had sought, pending a disposition on the merits, an injunction annulling all existing, and restraining the issuance of all future, licenses and approvals, and restraining all other actions of defendants-appellees which permit, or would permit, the transportation by air of plutonium and other SNM into, out of, within or over the City and State of New York and the United States and its territories. Appellant had also requested by way of this motion that the court enjoin any actions of defendants-appellees which would cause the transportation by air of SNM into, out of, within or over New York and the United States and its territories. Following the district court's denial of this motion, appellant filed a timely notice of appeal on November 7,

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1975. The second order from which appellant has timely appealed, dated December 23, 1975, is one granting the motion of defendants-appellees Civil Aeronautics Board ("CAB") and United States Customs Service ("Customs") to dismiss so much of the complaint as is directed against them on the ground that the complaint fails to state a claim upon which relief can be granted against them. Finally, appellant also timely appeals from a third order of the district court, dated May 7, 1976. This order denied two motions which had been made by appellant on December 12, 1975, one being a motion for summary judgment and the other a purportedly new motion for a preliminary injunction. The motion for summary judgment had sought both a declaration that appellees were in violation of NEPA and also the establishment of a mandatory timetable for the development and completion of the EIS appellant claims is required in this case. The new motion for a preliminary injunction differed from the first only in that, with respect to one SNM, enriched uranium, the second motion sought to enjoin only the commercial air transportation of this material, leaving the military-assisted air transportation of such material beyond the scope of the requested relief. For the reasons stated in this opinion, we affirm the district court's refusal to grant the two motions for a preliminary injunction; and we dismiss the appeal from the district court's grant of Customs' and CAB's motions to dismiss the complaint as to them; and we also dismiss the appeal from the district court's denial of appellant's motion for summary judgment.

Before considering the consolidated appeal, we think it would be helpful to describe briefly the general role some of the defendants play in the regulation and transportation of SNM, the beneficial uses to which SNM is routinely put, and the potential for abuses or accidents involving these materials.

The federal agencies named as defendants in this lawsuit are all alleged to be, to some extent or other, involved in the transport of SNM or in the regulation of its transportation. The two agencies whose involvement is most direct are the Nuclear Regulatory Commission ("NRC") and ERDA which, pursuant to the Energy Reorganization Act of 1974, 42 U.S.C. § 5801 et seq., are the joint successors to the Atomic Energy Commission, the federal agency formerly charged with primary responsibility in the area. The NRC's functions are regulatory in character and the most important of these is the licensing of importers, exporters and domestic carriers of SNM. These licenses do not, however, require that any particular mode of transportation be utilized. In contrast to the regulatory role played by the NRC, ERDA produces SNM at its own facilities and transports or arranges for the transportation of SNM. In making such shipments, which as a rule are connected with national defense programs, ERDA is not required to be licensed by the NRC.

For our present purposes we are concerned only with two varieties of SNM, plutonium and uranium enriched in the isotope U-235. Plutonium is manufactured by subjecting natural uranium to neutron bombardment within the confines of a nuclear reactor. Uranium enriched in the isotope U-235, on the other hand, is produced by increasing in natural uranium the percentage of the isotope U-235 normally found in that element. As to the other SNM specifically mentioned in 42 U.S.C. § 2014(aa), uranium enriched in the isotope U-233, we need not elaborate upon the nature of that material because it is not currently being shipped by air and appellant acknowledges that no relief is being sought with respect to it. Any references in this opinion to enriched uranium should therefore be understood as pertaining only to uranium enriched in the isotope U-235.

Plutonium has a number of uses in the fields of military technology, electrical power generation, medical technology, and in research in the areas of nuclear physics and nuclear materials. As a fuel for nuclear reactors, plutonium is being used only experimentally at the present time, but it is used extensively as a power source for

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heart pacemakers, and as a power source for electric generators installed in spacecraft and deep-sea diving devices. More importantly for purposes of this lawsuit, however, plutonium is a potential primary ingredient for a nuclear weapon and, when used in such a device, can produce damage of frightening proportions. This damage would not be limited solely to the instantaneous physical devastation resulting from the explosion itself. Plutonium is a highly radiotoxic substance which, when inhaled, can cause lung cancer. The extensive aerial dispersion of plutonium particles caused by the detonation of a nuclear explosive device would therefore present an independent source of injury. Moreover, of serious concern to appellant is the possibility that a deadly dispersion of plutonium particles could conceivably result from some source other than a nuclear explosion. For instance, much of the evidence before Judge Conner concerned the potential consequences, under various hypothetical conditions, which could result from the...

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