CITIZENS FOR AN ORDERLY ENERGY POL. v. SUFFOLK CTY.

• Decision Date: 18 March 1985
• Docket Number: No. CV-83-4966.,CV-83-4966.
• Citation: 604 F. Supp. 1084
• Parties: CITIZENS FOR AN ORDERLY ENERGY POLICY, INC., et al., Plaintiffs, v. The COUNTY OF SUFFOLK and Peter F. Cohalan, Defendants, Long Island Lighting Company and the Shoreham-Wading River Central School District, Intervenor-Plaintiffs.
• Court: U.S. District Court — Eastern District of New York

604 F. Supp. 1084

CITIZENS FOR AN ORDERLY ENERGY POLICY, INC., et al., Plaintiffs, v. The COUNTY OF SUFFOLK and Peter F. Cohalan, Defendants Long Island Lighting Company and the Shoreham-Wading River Central School District, Intervenor-Plaintiffs.

No. CV-83-4966.

United States District Court, E.D. New York.

March 18, 1985.

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Pacific Legal Foundation by Lucinda Low Swartz, Washington, D.C., for plaintiff Citizens for an Orderly Energy Policy.

Edward M. Barrett by Rosalind M. Gordon, Mineola, N.Y., Hunton & Williams by W. Taylor Reveley, III, James E. Farnham, K. Dennis Sisk, Richmond, Va., for intervenor-plaintiff Long Island Lighting Co.

Lou Lewis, Poughkeepsie, N.Y., for plaintiff-intervenor Shoreham Wading River Central School Dist.

Martin Bradley Ashare, Suffolk Co. Atty., Hauppauge, N.Y., Kirkpatrick, Lockhart, Johnson & Hutchison by David A. Brownlee, Michael J. Lynch, Kenneth M. Argentieri, Pittsburgh, Pa., Kirkpatrick, Lockhart, Hill, Christopher & Phillips by Herbert H. Brown, Lawrence C. Lanpher, Washington, D.C., for defendants.

MEMORANDUM AND ORDER

ALTIMARI, District Judge.

The present controversy centers around the County of Suffolk's lack of participation in off-site radiological emergency evacuation planning for the Long Island Lighting Company's ("LILCO") Shoreham Nuclear Power Facility ("Shoreham"), an 809 megawatt nuclear powered electric generating facility located on Long Island's north shore in the County of Suffolk (the "County"). LILCO and its supporters contend that the County's actions may result in the denial of an operating license for Shoreham and spell financial doom and bankruptcy for the company. The County and its supporters, including the Governor of the State of New York, see Cuomo v. Long Island Lighting Co., 589 F.Supp. 1387 (E.D.N.Y.1984), contend that in the event of a nuclear accident at Shoreham, safe and speedy evacuation is a geographical impossibility, and that the County may rightly refuse to participate in any emergency planning.

FACTS

Plaintiffs, Citizens for an Orderly Energy Policy, Inc., a not-for-profit corporation, and five of its members (hereinafter collectively referred to as "Citizens" or "Plaintiffs") commenced this action on or about November 10, 1983. Thereafter on April 11, 1984, the Court granted LILCO and the Shoreham-Wading River Central School District (the "District") leave to intervene as plaintiffs. See 101 F.R.D. 497 (E.D.N.Y. 1984).

Citizens' complaint alleges the following. In early 1975, the County started to assist LILCO in the development of an emergency plan for Shoreham. This spirit of cooperation is said to have lasted until early 1982 when the Suffolk County Legislature adopted the first of three resolutions.

On March 23, 1982, the legislature adopted resolution No. 262-1982. That resolution, in relevant part, directs the Suffolk County Planning Department to prepare "a County Radiological Emergency Response Plan to serve the interest of safety, health and welfare of the residents of Suffolk County...." The resolution further stated that the plan was not to be submitted to the Federal Emergency Management Agency ("FEMA") and the Nuclear Regulatory Commission ("NRC") until approved by the County Legislature.

Resolution No. 456-1982, adopted on May 18, 1982, provides that the County has the primary responsibility for the protection of its residents in the event of a nuclear accident at Shoreham; that the County "intends through good faith and sound planning efforts to assure that the best possible emergency plan and preparedness are developed"; and that LILCO has "gone beyond its powers as a private corporation in an attempt to usurp the rightful powers of Suffolk County." In addition the resolution provided that

Suffolk County shall not assign funds or personnel to test or implement any radiological emergency response plan for the Shoreham Nuclear Plant unless that plan has been fully developed to the best of the County's ability.

Suffolk County shall not assign funds or personnel to test or implement any radiological emergency response plan for the Shoreham Nuclear Plant unless that plan has been the subject of at least two public hearings, one to be held in Riverhead, and one to be held in Hauppauge. Suffolk County shall not assign funds or personnel to test or implement any radiological emergency response plan for the Shoreham Nuclear Plant unless that plan has been approved, after public hearings, by the Suffolk County Legislature and the County Executive.

The third and central resolution, No. 111-1983, was adopted on February 17, 1983. In sum, the six page resolution states that after extensive study the legislature determined that no emergency plan could adequately protect the health and safety of the County's residents and, therefore, no local plan was to be adopted or implemented. Accordingly, the County's radiological emergency planning process was terminated and the County Executive was "directed to take all actions necessary to assure that actions taken by any other governmental agency, be it state or federal, are consistent with the decisions mandated by this Resolution."

Plaintiffs allege that the County's resolutions "were enacted solely on the basis of a perceived need to protect the public from the dangers of nuclear power." Complaint at par. 21. They assert that the County's resolutions express an intent to refuse to develop or consider any emergency plan and to determine the adequacy of all radiological response plans in an attempt to regulate the operation of Shoreham on the basis of radiological hazards and safety, a field preempted by federal law. In addition, they contend that the County's decision that no emergency plan could adequately protect the public health and safety is in conflict with the NRC's responsibility to determine such issues and frustrates the federal policy of encouraging the development of nuclear power. Accordingly, plaintiffs seek a judgment declaring the above resolutions void and illegal as preempted by the Atomic Energy Act (the "AEA"). 42 U.S.C. § 2011, et seq.

For their state law cause of action, plaintiffs contend that the County has a state constitutional duty to protect the health, safety and welfare of its residents, see N.Y. Const. art. 9, § 2(c)(10), and a statutory duty to prepare a local disaster preparedness plan and to provide assistance and relief in the event of a radiological emergency. See N.Y.Exec.Law §§ 20, 23, 25 (McKinney 1982). Plaintiffs maintain that the County's refusal to participate in emergency planning and its intended refusal to act should an accident occur are contrary to the County's duty. For their relief, plaintiffs seek an injunction requiring the Suffolk County Planning Department to develop or assist in the development of a radiological emergency response plan for Shoreham and requiring the County to make available all necessary resources in order to protect the health and safety of its residents.

LILCO's intervenor complaint makes two claims for relief. First, it endorses plaintiffs' argument that the County's resolutions and acts "constitute an impermissible attempt by a local government to regulate and prevent the operation of a commercial nuclear power station on grounds ... regarding radiological safety" and are, therefore, preempted by the AEA. LILCO Complaint at par. 57. Second, LILCO alleges that "defendants' about-face regarding emergency planning for Shoreham, predicated as it was on an impermissible usurpation of the NRC's exclusive regulatory authority, constitutes an arbitrary, capricious, and malicious deprivation of LILCO's property without due process of law." Id. at par. 58; see LILCO complaint par. 56. By way of relief, LILCO seeks a judgment declaring the resolutions in question void and illegal. In addition, unlike Citizens, LILCO seeks an injunction under 42 U.S.C. § 1983 and the due process clause of the United States Constitution "requiring Suffolk County and Peter Cohalan to fulfill their duty to exercise their governmental functions fairly by taking all reasonable steps necessary to assist LILCO in emergency planning for Shoreham."

Lastly, the district's intervenor complaint is essentially identical to Citizens but adds that defendants' acts have specifically violated the AEA and give rise to jurisdiction under the AEA itself.

Defendants move to dismiss the original and intervenor complaints pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). While defendants challenge Citizens' standing to maintain the action and have raised other jurisdictional questions, and while "intervention cannot cure any jurisdictional defect that would have barred the ... court from hearing the original action," 7A C. Wright & A. Miller, Federal Practice and Procedure, § 1917, at 584 (1972), the court has decided to address the three motions to dismiss in one opinion regardless of the determination on Citizens' standing. The court follows this procedure because if Citizens is without standing, LILCO's pleading would be considered as a separate action with an independent basis for jurisdiction over defendants. Failure to adjudicate LILCO's claim would merely require LILCO to file a new suit and bring the parties to the point where they now stand after an unnecessary delay. See Miller & Miller Auctioneers, Inc. v. G.W. Murphy Industries, Inc., 472 F.2d 893, 895-96 (10th Cir.1973); Hackner v. Guaranty Trust Co., 117 F.2d 95 (2d Cir.), cert. denied, 313 U.S. 559, 61 S.Ct. 835, 85 L.Ed. 1520 (1941); Corporacion Venezolan de Fomento v. Vintero Sales Corp., 477 F.Supp. 615, 622 (S.D.N.Y.1979). Moreover, while it is sometimes said that an intervenor accepts the pleadings as he finds them and may not add a claim, for much the same practical reason of avoiding unnecessary delay, and because defendants have not objected and have addressed the issue, it is proper for LILCO...