Decision Date25 April 1980
Docket NumberNo. CV S-78-527-R.,CV S-78-527-R.
Citation489 F. Supp. 699
PartiesPACIFIC GAS AND ELECTRIC COMPANY et al., Plaintiffs, v. STATE ENERGY RESOURCES CONSERVATION AND DEVELOPMENT COMMISSION et al., Defendants, Natural Resources Defense Council, Inc., et al., Intervenors.
CourtU.S. District Court — Eastern District of California

John R. McDonough, Laurence F. Jay, Ball, Hunt, Hart, Brown & Baerwitz, Beverly Hills, Cal., for plaintiffs.

William M. Chamberlain, Gen. Counsel, Dian M. Grueneich, Deputy Gen. Counsel, California Energy Resources Conservation and Development Commission, Sacramento, Cal., Michael R. Jencks, San Francisco, Cal., Kathryn Burkett Dickson, Sacramento, Cal., Antonio Rossmann, Sp. Counsel, San Francisco, Cal., for defendants.

Roger Beers, San Francisco, Cal., for intervenors.


REAL, District Judge.

Plaintiffs have brought this action asking that the California statutory scheme purporting to regulate the construction and operation of nuclear power plants be held to be unconstitutional. The claim of unconstitutionality in whole or in part of these nuclear power statutes is made on the ground that the subject matter or effect of individual sections of the California Public Resources Code are preempted under the Supremacy Clause of the United States Constitution by Congressional enactment of the Atomic Energy Act. Although the attack is specific, the statutes are broadly grouped as those first enacted by the Warren-Alquist Act in 1975 e. g. Sections 25500, 25502, 25504, 25511, 25512, 25514, 25516, 25517, 25520, 25523, 25528, and 25532 and the amendments of 1976 e. g. Sections 25524.1, 25524.2 and 25524.3.

Plaintiffs moved for summary judgment claiming there is no genuine issue of material fact. In response defendants and intervenors argue that summary judgment is inappropriate because they dispute the standing of plaintiffs to pursue this action and claim disputed factual issues must be resolved by trial.

The Court under Rule 56(d) Federal Rules of Civil Procedure may decide upon a Motion for Summary Judgment which material facts exist without substantial controversy and reserve for trial those material facts actually and in good faith controverted. Since pre-emption is the comparison of the parallel reaches of state and federal legislation only a question of law is presented by an attack on a state statutory scheme of intrusive regulation. Standing, on the other hand, can involve disputes as to the factual premises upon which a plaintiff attempts to justify the exercise of jurisdiction by a court. So it is here. The court will decide the question of pre-emption upon the motion for summary judgment. The matter of standing is now decided after trial of the factual issues presented.


Plaintiffs are public utilities franchised by the State of California and charged by California Public Utilities Code § 451 with the obligation to "furnish and maintain such adequate, efficient, just and reasonable service . . . as is necessary to promote the safety, health, comfort, and convenience of its patrons, employees, and the public." This obligation has been met by plaintiffs through the construction and maintenance of power generating plants now in operation using various available methods including the conversion of nuclear energy to electricity.

The power consumption demands of California users is much like California's weather—sometimes unusual—but generally and consistently optimistic. Controlled much by the increase in population and the general economic climate of the state's industry plaintiffs must plan ahead to what they anticipate the power generation needs will be as long as 12 to 14 years in the future. The planning process often requiring expenditure of hundreds of millions of dollars and the construction process often requiring investments in excess of a billion dollars are subject to regulation both state and federal. It is a claim of constitutionally prohibited overlapping regulation particularly in the construction of electrical generating plants employing nuclear power that brings plaintiffs into conflict with defendants in this lawsuit.

Plaintiffs' claim of standing is based upon their individually expressed desire to employ the nuclear power plant option to meet future — and replace present — electric generation plant needs. Plaintiffs argue that California's regulatory scheme in the Public Resources Code effectively precludes them from planning and building for the nuclear option. Defendants contest plaintiffs' claim of need to use the nuclear option and assert that plaintiffs can meet the presently predictable growth in electricity demands through the year 2000 at least. So, defendants argue there is no present impact on plaintiffs sufficient to permit them to invoke the jurisdiction of this court to satisfy "the wish" of plaintiffs' chief executives.

Although the Court has heard much rhetoric on the merits and demerits of the industrial use of nuclear power, that is not what this case is all about. This Court has neither the jurisdictional power nor the personal inclination to enter the nuclear controversy through the vehicle of this dispute. A court may only act when a controversy is brought to it for decision. The decision then is made only upon the facts and the law presented and necessary for a just resolution of the dispute between the litigants. This case does not present the need to resolve what are political — legislative and executive — ramifications of the policy and climate for commercial exploitation of nuclear power.

The right of a party to invoke the working of the judicial process may present different considerations of standing, case or controversy, ripeness and mootness. In this case all these concepts merge under the rubric "standing."

Standing of plaintiffs must be determined because the jurisdiction granted by Article III of the United States Constitution to a federal court cannot be invoked simply because someone wants a decision on the constitutionality of a state statute. The time and space of a federal court and the efforts of a federal judge can be employed only to vindicate the rights of those aggrieved in a real way by the existence or application of an unconstitutional legislative enactment. The facility of stating the requirement and principles of standing belies the competing and sometimes difficult factual assertions made by the parties.

Plaintiffs have testified through their respective high level management that they are presently in need of planning ability to develop electric generation from nuclear fuel and are being precluded from that option by the California nuclear statutes challenged herein. Pacific Gas and Electric Company (hereafter P.G. & E.) has already expended many millions of dollars in the planning of its Stanislaus nuclear power plant project and maintains that it cannot proceed because of the requirements — and some failures to act — of the State Energy Resources Conservation and Development Commission of the State of California (hereafter Energy Commission). Defendants and intervenors have introduced evidence that they claim shows that P.G. & E. cannot and would not proceed with Stanislaus even if relieved of the obligations of the California statutes. They press upon the court the evidence of the reduced estimates of future electric power demand made by the California Public Utilities Commission (hereafter PUC) and the so called "pause" in the granting of nuclear power plant licenses by the Nuclear Regulatory Commission (hereafter NRC). Financial analyses that indicate P.G. & E. may not be able to finance another nuclear power plant until the Diablo Canyon plant is cleared for operation and the nuclear incident at Three Mile Island are added to shore up the claim of defendants and intervenors that P.G. & E. lacks standing.

Defendants' and intervenors' reliance on such evidence is misplaced on the question of standing. Standing cannot, and should not, be imposed or defeated by considerations that come outside the good faith concerns of a business for its survival. There is nothing in the evidence presented to the Court that would impugn the bona fides of P.G. & E.'s concern for its planning needs in the immediate future. If that decision is made erroneously it is the stockholders of the company that will undoubtedly suffer. But neither the defendants, nor the intervenors, nor this Court has the responsibility for what is a uniquely management decision.

The claim of Southern California Edison Company (hereafter Edison) raises the same basic concerns on the part of each of the parties to the controversy. Edison's position mirrors P.G. & E.'s with the exception that Edison has not yet committed any funds to its Nuclear 1 and Nuclear 2 projects. The difference is not significant in its impact on standing.


Preemption addresses the classic and natural functions created by a republican form of government in which state and federal intrusions upon the granted and reserved powers expressed in the United States Constitution must be reconciled. The doctrine emanates from the Supremacy Clause which 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.

The Supremacy Clause renders invalid a state statute addressed to a subject matter that Congress, within its constitutional power, marks for the exclusive jurisdiction of the federal government, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 91 L.Ed. 1447, 67 S.Ct. 1146 (1947). Jones v. Rath Packing Co., 430 U.S. 519, 51 L.Ed.2d 604, 97 S.Ct. 1305 (1977), or in a more subtle manner where the state statute substantially impedes the manifest operation of a federal ...

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4 cases
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    ...Judges, and FITZGERALD, * District Judge. FLETCHER, Circuit Judge: These are consolidated appeals from two district court decisions, 489 F.Supp. 699, 472 F.Supp. 191, invalidating portions of California's Warren-Alquist Act. The Warren-Alquist Act regulates all electric plants in California......
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