Concerned Citizens of RI v. NUCLEAR REG. COM.

• Citation: 430 F. Supp. 627
• Decision Date: 26 April 1977
• Docket Number: Civ. A. No. 76-520.
• Court: U.S. District Court — District of Rhode Island
• Parties: CONCERNED CITIZENS OF RHODE ISLAND et al. v. NUCLEAR REGULATORY COMMISSION et al.

430 F. Supp. 627

CONCERNED CITIZENS OF RHODE ISLAND et al. v. NUCLEAR REGULATORY COMMISSION et al.

Civ. A. No. 76-520.

United States District Court, D. Rhode Island.

April 19, 1977.

Addendum April 26, 1977.

COPYRIGHT MATERIAL OMITTED

Seth K. Gifford, Cynthia G. Collins, Providence, R.I., for plaintiff.

Thomas G. Dignan, Jr., Boston, Mass., Edward F. Hindle, Matthew F. Medeiros, Providence, R.I., James A. Fitzgerald, Nuclear Regulatory Commission, Washington, D.C., Everett C. Sammartino, Asst. U.S. Atty., R.I., Providence, R.I., for defendant.

MEMORANDUM AND ORDER

PETTINE, Chief Judge.

I

In this case, the Court is again asked to block a federal agency from proceeding further to consider the potential construction of nuclear power plants on former Navy land in Rhode Island.¹ Specifically, Concerned Citizens of Rhode Island (CCRI) and the other plaintiffs complain that the defendant Nuclear Regulatory Commission (NRC) is exceeding its authority by docketing and processing intervenor-defendant New England Power Company's application for permits to construct two light-water nuclear reactors to be built at the Naval Auxiliary Landing Field (NALF) in Charlestown.² They also complain that the NRC's study and evaluation of the environmental effects deriving from nuclear power plant construction at that location is beyond the authority of the NRC and violative of this Court's order in a related case, Rhode Island Committee on Energy v. General Services Administration (RICE v. GSA), 397 F.Supp. 41 (D.R.I.1975). Both claims are premised on the fact that New England Power (NEP) does not own, or have legal right to control, the NALF site.

NRC and NEP have moved to dismiss the complaint on the grounds that plaintiffs have failed to exhaust administrative remedies; that the court lacks subject matter jurisdiction; and that plaintiffs have failed to state a claim on which relief may be granted. Viewing the plaintiffs' complaint under the standard enunciated in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), the Court holds that the complaint must be dismissed.

The relevant allegations are as follows. The NALF is presently owned by GSA, which is under a court imposed duty to prepare an Environmental Impact Statement (EIS) examining, inter alia, costs and benefits of alternative uses for this surplus property. Only after that EIS is completed can GSA dispose of the NALF in accordance with the Federal Property and Administrative Services Act of 1949, 40 U.S.C. § 471 et seq. (FPAS) as amended. RICE v. GSA, supra. That EIS is not expected to be completed until November 30, 1977 at the earliest.

Although NEP does not own or have legal right to control the NALF, it has long been interested in constructing a nuclear power plant at that site. NEP has made strenuous attempts to secure the NALF (through its subsidiary, Narragansett Electric Company) since 1974, attempts which the Court found had been unlawfully assisted by the GSA. RICE v. GSA, 397 F.Supp. at 61. The disturbing history of the dispute between environmentalists, NEP and GSA can be found in RICE v. GSA, 397 F.Supp. 41 and 411 F.Supp. 323. NEP has submitted applications to NRC for permits to construct two pressurized nuclear reactors at NALF and after preliminary staff review NRC informed NEP on September 29, 1976 that it had accepted the application and docketed it as "acceptably complete for commencement of a detailed review".³ With reference to the fact that NEP did not own the site, NRC stated, "New England Power Company has informed us that acquisition of the site is the subject of litigation and if not resolved favorably an alternative site will be proposed." It is apparent from NRC regulations that an applicant must propose a particular site for the contemplated construction of a nuclear plant, and that the hearings which NRC must conduct must focus on a particular site as well. See, e.g., 10 CFR §§ 50.34(a)(1), 51.20.

II

Defendants contend that this Court lacks subject matter jurisdiction to review the NRC order docketing NEP's application for further processing, including hearings. If that order is a "final order" in any proceeding for the "granting . . . of any license or construction permit", exclusive jurisdiction would be in the Court of Appeals. 42 U.S.C. § 2239(b) (1973); 28 U.S.C. § 2342(4) (Supp.1976).⁴ Substantial authority indicates that the order at issue is not a final order under the relevant standards, and the Court will assume arguendo that the order is not presently appealable in the Court of Appeals. See Ecology Action v. United States Atomic Energy Commission, 492 F.2d 998 (2d Cir. 1974); Citizens for a Safe Environment v. AEC, 489 F.2d 1018 (3rd Cir. 1974); Thermal Ecology Must Be Preserved v. AEC, 139 U.S.App.D.C. 366, 433 F.2d 524 (1970).⁵ However, even though the statutory language placing exclusive jurisdiction over "final orders" of NRC proceedings does not negate the existence of Administrative Procedure Act jurisdiction in this Court over other NRC orders,⁶ such jurisdiction would exist in this case only if plaintiffs have satisfied two necessary conditions imposed by the APA. First, plaintiffs must have exhausted any nonfutile administrative remedies by demonstrating that the remedy in the NRC, and eventually the Court of Appeals, is inadequate to protect their rights. See, e.g., Nader v. Ray, 363 F.Supp. 946, 954 (D.D.C. 1973); Gage v. Commonwealth Edison Co., 356 F.Supp. 80, 84 (N.D.III.1972); Izaak Walton League of America v. Schlesinger, 337 F.Supp. 287, 291 and n. 14, 292 (D.D.C. 1973). Second, plaintiffs must allege a violation of a clear, non-discretionary legal duty breached by the NRC. Izaak Walton League of America v. Schlesinger, D.C., 337 F.Supp. at 291. See also Gage v. AEC, 156 U.S.App.D.C. 231, 479 F.2d at 1222; Nader v. Ray, D.C., 363 F.Supp. at 955. This rule embodies a functional definition of what is "final" for APA purposes, 5 U.S.C. § 704, and ensures that district court review does not impinge on the jurisdiction of the courts of appeals or unnecessarily divert the parties' attention from the administrative forum.

That plaintiffs here have satisfied neither requirement appears certain from closer examination of the case on which they principally rely, Izaak Walton League of America v. Schlesinger, the only case cited by plaintiffs in which a district court has taken jurisdiction and ordered the NRC (AEC) to do something in connection with nuclear power plant licensing and construction permits. The court held that only the Court of Appeals had jurisdiction over a count seeking review of certain regulations, but it assumed jurisdiction over second count, alleging a clear violation of the National Environmental Policy Act of 1969 (NEPA). The court stated:

While an operating license has not issued, the plaintiffs allege there has been a statutory violation because the AEC contends it is not required to issue a NEPA statement. In line with directing the AEC to issue the 102(2)(C) statement, plaintiffs seek a preliminary injunction preventing AEC from issuing the license requested until such statutory compliance is fulfilled.

Intervenors contend, likewise, that this count should be dismissed for lack of jurisdiction. They argue that since the issuance by AEC of a license for interim operating authority is a final order, review is confined exclusively in the Court of Appeals.

Plaintiffs are not requesting review of the granting or denying of a license. They request this Court to direct the AEC to comply with a specific statutory mandate. In this regard the Court does have jurisdiction to consider the issues presented, namely, whether there has been a violation of a clear, nondiscretionary, legal duty.

337 F.Supp. at 291 (footnote omitted).

The Court also emphasized at length that plaintiffs had no other remedy:

Review in the Court of Appeals is unavailable or inadequate to protect plaintiffs' rights. Does the law, apart from the review provisions investing exclusive jurisdiction in the court of appeals, afford a remedy? This Court observes that plaintiffs lack an adequate remedy since appellate review is only available to parties to the proceeding. . . . The Government and intervenors make much of plaintiffs' failure to become parties to the proceedings. They contend the inadequacy of the appellate remedy is due solely to plaintiffs' failure to participate before the Commission. The argument is not convincing. Plaintiffs' opportunity to intervene occurred during the 30 day period commencing on March 16, 1971. The Court views with concern the fact that the manner in which the thermal effluents would be discharged into the Mississippi River (and the alleged dangers of such discharges) was not disclosed until April 30, 1971. Then, the 30 day period within which the plaintiffs could have become parties, and therefore could invoke the jurisdiction of the Court of Appeals, had expired.

337 F.Supp. at 292 (footnote omitted).

Plaintiffs' case here differs decisively from the situation presented in Izaak Walton League of America, supra. Plaintiffs have already intervened in the NRC proceeding, and may present all of their claims to the NRC.⁷ Regulations ensure that the EIS will be considered in the hearing process, 10 CFR § 51.52. See Calvert Cliffs' Coordinating Committee v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971). If NEP proves unable to produce the necessary environmental information because of its lack of ownership or control of NALF, plaintiffs have a remedy in the NRC hearing or later in the Court of Appeals. It can hardly be said that plaintiffs suffer present irremediable harm from an inadequate EIS which has not yet been prepared.⁸ It appears certain that adequate remedies are available to plaintiffs which preclude this Court's jurisdiction. Plaintiffs have failed to exhaust their administrative remedies.

Nor have plaintiffs successfully alleged any violations of clear,...