City of New York v. United States Dept. of Transp.

• Decision Date: 05 May 1982
• Docket Number: No. 81 Civ. 1778 (ADS).,81 Civ. 1778 (ADS).
• Citation: 539 F. Supp. 1237
• Parties: The CITY OF NEW YORK, Plaintiff, and The State of New York, the Town of Brookhaven, and Sullivan County, Plaintiff-Intervenors, v. The UNITED STATES DEPARTMENT OF TRANSPORTATION and the Materials Transportation Bureau of the United States Department of Transportation, Defendants, and Commonwealth Edison Company, Consolidated Edison Company of New York, Georgia Power Company, Long Island Lighting Company, Northeast Utilities, Northern States Power Company, Pacific Gas and Electric Company, Power Authority of the State of New York, Public Service Electric and Gas Company, Southern California Edison Company, and Yankee Atomic Electric Company, Defendant-Intervenors.
• Court: U.S. District Court — Southern District of New York

539 F. Supp. 1237

The CITY OF NEW YORK, Plaintiff and The State of New York, the Town of Brookhaven, and Sullivan County, Plaintiff-Intervenors, v. The UNITED STATES DEPARTMENT OF TRANSPORTATION and the Materials Transportation Bureau of the United States Department of Transportation, Defendants and Commonwealth Edison Company, Consolidated Edison Company of New York, Georgia Power Company, Long Island Lighting Company, Northeast Utilities, Northern States Power Company, Pacific Gas and Electric Company, Power Authority of the State of New York, Public Service Electric and Gas Company, Southern California Edison Company, and Yankee Atomic Electric Company, Defendant-Intervenors.

No. 81 Civ. 1778 (ADS).

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

May 5, 1982.

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Frederick A. O. Schwarz, Jr., Corp. Counsel for the City of New York by Stephen P. Kramer, Barry L. Schwartz, Alan D. Levine, New York City, for plaintiff City of New York.

Robert Abrams, Atty. Gen. of N. Y. by Ezra I. Bialik, Asst. Atty. Gen., New York City, for plaintiff-intervenor State of N. Y.

John S. Martin, Jr., U. S. Atty., S. D. N. Y. by Twila L. Perry, Asst. U. S. Atty., Douglas E. Crockett, Douglas Anderson, U. S. Dept. of Transp., New York City, for defendants.

LeBoeuf, Lamb, Leiby, & MacRae by Harry H. Voigt, Leonard M. Trosten, Mindy A. Buren, New York City, for defendant-intervenors and amici curiae.

Robert Cohen, Asst. Court Atty., for Sullivan County, Monticello, N. Y., for plaintiff-intervenor Sullivan County.

AMENDED OPINION

SOFAER, District Judge:

On January 19, 1981, the United States Department of Transportation ("DOT") published a "Final Rule" concerning the transportation of radioactive materials pursuant to its authority under the Hazardous Materials Transportation Act ("HMTA"), 49 U.S.C. §§ 1801-1812 (1976). The rule, scheduled to take effect on February 1, 1982, would permit the shipment by road throughout the nation of all types of radioactive materials. One avowed purpose of the rule was to override local prohibitions against the shipment of radioactive materials, particularly a local regulation adopted by the Board of Health of New York City ("City") on January 15, 1976. The City commenced this action on March 25, 1981, seeking to invalidate DOT's rule or, at least, to prevent it from overriding the City's regulation. The State of New York intervened as a plaintiff, moving for discovery and a preliminary injunction against enforcement of DOT's rule within the State's borders; the Town of Brookhaven and Sullivan County, New York, joined the City's and State's efforts. The United States has been joined in its defense of DOT's rule by numerous intervening power companies as well as by several amici curiae.

Plaintiffs seek relief on numerous grounds. Several are meritless. Indeed, the welter of arguments contained in plaintiffs' papers tends to obscure the fact the DOT's actions are challenged meaningfully only insofar as they relate to the highway transportation of spent fuel from nuclear reactors and other large-quantity shipments of radioactive materials through densely populated areas such as New York City. In all other respects, the administrative record and the law supports DOT's Final Rule.

Insofar as DOT's actions require states and localities to permit the highway transport of spent fuel and other large-quantity shipments through densely populated areas, the record developed by DOT cannot justify the challenged rule. The agency has failed to fulfill its responsibilities under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4347 (1976), and under the regulations promulgated under NEPA by the Council on Environmental Quality and by DOT itself. In particular, DOT has failed adequately to evaluate and to address itself to the problems posed by low-probability/high-consequence occurrences that are concededly "credible." NEPA requires that an agency confronted with these problems, fundamental in a society dependent on inherently dangerous technologies, conduct a thorough examination and make determinations that are susceptible to review concerning: (1) the probability of the occurrence contemplated; (2) the potential consequences of such an occurrence; and (3) the environmental risk reflected by the probability and the consequences estimated. Because its environmental evaluation is deficient in all three respects, DOT's Environmental Assessment is inadequate, and DOT's finding that its action will have no significant environmental impact—and therefore that no environmental impact statement need be prepared—is insufficiently supported by the present record. Furthermore, DOT has failed adequately to consider alternatives to highway transport that might reduce or eliminate the risks posed to urban areas by low-probability/high-consequence accidents or by malevolent acts. Even if DOT could lawfully choose to regulate only highway transport at this time, it cannot rationally evaluate the option of taking no action without examining at least superficially the availability of nonhighway modes to accommodate shipments prevented by local and state laws from crossing densely populated areas. DOT has therefore failed to perform its obligation to "study, develop, and describe" appropriate alternatives.

Apart from DOT's obligation under NEPA to evaluate more fully the environmental consequences of its proposed rule, HMTA imposes similar duties on DOT and in addition sets limits on the agency's authority to deem certain risks acceptable. For the same reasons DOT's analysis is invalid under NEPA, its adoption of the challenged rule was an arbitrary and capricious exercise of its rulemaking authority under HMTA: DOT inadequately considered the risks of highway transport and the need, given potential alternatives, to impose those risks on the public. Further, DOT erroneously concluded that it is free under HMTA to subject unwilling states and localities to risks of potential catastrophe that DOT itself deemed "credible" and "important" when those risks are avoidable. HMTA mandates that in exercising its regulatory power DOT avoid where reasonably possible all significant risk not inherent in the transportation of hazardous substances. In adopting a new rule covering the transportation of spent fuel and other large-quantity radioactive materials, DOT must be guided by Congress' policies, not by its own perception of acceptable risk. On the present record, DOT's regulation is unreasonable in light of the properly applicable legal standards.

The Court's role in this case is to conduct a "searching and careful" review of DOT's actions, but only in order to determine whether the agency has acted reasonably in fulfilling its statutory obligations. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). The nature of contemporary scientific disputes requires a court to give close attention to detail, to ensure that it neither fails to perform its duty of careful review, nor goes beyond its limited role because of any failure to give proper weight to all the evidence supporting the agency's judgment. A full review of the record is therefore necessary to identify all the evidence actually considered or implicitly supporting DOT's conclusion. After that review the opinion examines plaintiffs' numerous contentions.

I. Factual Background for DOT's Action

One of the problems created by the use of radioactive materials in American medicine and industry is the need to transport them. Our society is highly dependent on radioactive materials. In medicine, gamma-ray-emitting isotopes are commonly used to image specific areas and organs of the body. Radioisotopes of iodine are used to diagnose and treat thyroid disorders; other isotopes are used in millions of scanning procedures annually. Large quantities of Co-60 (cobalt) or Cs-137 (cesium) are used for cancer treatment, research, and large-scale food sterilization. Well-logging firms use radioisotopes to assess a well's capability; radioactive tracers are also used for this purpose. The radiography industry uses certain isotopes that emit high-energy gamma rays to examine the structural integrity of welded joints, particularly in large pipes and frames. Radioactive materials are especially effective in a large variety of gauging applications. And, of course, the nuclear power industry uses radioactive materials, and generates large quantities of irradiated (spent) fuel. All of these uses require transport to one degree or another, often at several different stages, including manufacture, use, and disposal.

As the use of radioactive materials has become increasingly common, public awareness of the dangers posed by their transportation has heightened. Since the middle of the 1970s, governmental authorities on federal, state, and local levels have begun to address the problem. In 1975 Congress passed HMTA to centralize authority in DOT to promulgate and enforce regulations to protect the public against "the risks to life and property which are inherent in the transportation of hazardous materials," including radioactive materials. 49 U.S.C. § 1801 (1976). The act specifically empowers the Secretary of Transportation to issue routing rules for the safe transportation of radioactive materials. Id. § 1804(a). Congress provided expressly for the preemption of state and local rules inconsistent with the act or with regulations adopted under it, except for inconsistent rules that DOT finds ensure equal or greater public safety than the inconsistent federal requirements and do not unreasonably burden interstate commerce. Id. § 1811.

DOT regulations that preexisted the passage of HMTA required motor vehicles containing hazardous materials to use routes that "do not go through or near heavily populated areas, places where crowds are...