Consol. Edison Co. v. U.S., PLAINTIFFS-APPELLEES

• Decision Date: 03 May 2001
• Docket Number: DEFENDANTS-APPELLANTS,PLAINTIFFS-APPELLEES
• Citation: 247 F.3d 1378
• Parties: (Fed. Cir. 2001) CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., NEW YORK POWER AUTHORITY, NIAGARA MOHAWK POWER CORPORATION, ROCHESTER GAS AND ELECTRIC CORPORATION, ARIZONA PUBLIC SERVICE CORPORATION, COMMONWEALTH EDISON COMPANY, DUKE ENERGY CORPORATION, ENTERGY GULF STATES, INC., FLORIDA POWER CORPORATION, FLORIDA POWER AND LIGHT COMPANY, GPU NUCLEAR, INC. (ON BEHALF OF JERSEY CENTRAL POWER & LIGHT COMPANY, METROPOLITAN EDISON COMPANY, AND PENNSYLVANIA ELECTRIC COMPANY), INDIANA MICHIGAN POWER COMPANY, NEBRASKA PUBLIC POWER DISTRICT, PECO ENERGY COMPANY, SOUTHERN CALIFORNIA EDISON COMPANY, SOUTHERN NUCLEAR OPERATING COMPANY, INC., SYSTEM FUELS, INC., TEXAS UTILITIES ELECTRIC COMPANY, VIRGINIA ELECTRIC & POWER COMPANY, WASHINGTON PUBLIC POWER SUPPLY SYSTEM, WISCONSIN PUBLIC SERVICE CORPORATION, AND WOLF CREEK NUCLEAR OPERATING CORPORATION (ON BEHALF OF KANSAS CITY POWER & LIGHT COMPANY, KANSAS ELECTRIC POWER COOPERATIVE, INC., AND KANSAS GAS AND ELECTRIC COMPANY),, v. UNITED STATES, DEPARTMENT OF ENERGY, DEPARTMENT OF ENERGY AS SUCCESSOR TO THE UNITED STATES ATOMIC ENERGY COMMISSION, AND ENERGY RESEARCH AND DEVELOPMENT ADMINISTRATION, 99-1464
• Court: U.S. Court of Appeals — Federal Circuit

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247 F.3d 1378 (Fed. Cir. 2001) CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., NEW YORK POWER AUTHORITY, NIAGARA MOHAWK POWER CORPORATION, ROCHESTER GAS AND ELECTRIC CORPORATION, ARIZONA PUBLIC SERVICE CORPORATION, COMMONWEALTH EDISON COMPANY, DUKE ENERGY CORPORATION, ENTERGY GULF STATES,

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INC., FLORIDA POWER CORPORATION, FLORIDA POWER AND LIGHT COMPANY, GPU NUCLEAR, INC. (ON BEHALF OF JERSEY CENTRAL POWER & LIGHT COMPANY, METROPOLITAN EDISON COMPANY, AND PENNSYLVANIA ELECTRIC COMPANY), INDIANA MICHIGAN POWER COMPANY, NEBRASKA PUBLIC POWER DISTRICT, PECO ENERGY COMPANY, SOUTHERN CALIFORNIA EDISON COMPANY, SOUTHERN NUCLEAR OPERATING COMPANY, INC., SYSTEM FUELS, INC., TEXAS UTILITIES ELECTRIC COMPANY, VIRGINIA ELECTRIC & POWER COMPANY, WASHINGTON PUBLIC POWER SUPPLY SYSTEM, WISCONSIN PUBLIC SERVICE CORPORATION, AND WOLF CREEK NUCLEAR OPERATING CORPORATION (ON BEHALF OF KANSAS CITY POWER & LIGHT COMPANY, KANSAS ELECTRIC POWER COOPERATIVE, INC., AND KANSAS GAS AND ELECTRIC COMPANY), PLAINTIFFS-APPELLEES,
v.
UNITED STATES, DEPARTMENT OF ENERGY, DEPARTMENT OF ENERGY AS SUCCESSOR TO THE UNITED STATES ATOMIC ENERGY COMMISSION, AND ENERGY RESEARCH AND DEVELOPMENT ADMINISTRATION, DEFENDANTS-APPELLANTS. 99-1464 United States Court of Appeals for the Federal Circuit May 3, 2001

Appealed from: United States District Court for the Southern District of New York; Senior Judge Whitman Knapp

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Daniel R. Murdock, Winston & Strawn, of New York, New York, for plaintiffs-appellees.

Mark W. Pennak, Attorney, Appellate Staff, Civil Division, Department of Justice, of Washington, DC, for defendants-appellant. With him on the brief was Barbara C. Biddle.

Melvin C. Garbow, Arnold & Porter, of Washington, DC, for amicus curiae Sacramento Municipal Utility District. With him on the brief was Howard N. Cayne.

Rader, Circuit Judge, Plager, Senior Circuit Judge,^* and Gajarsa, Circuit Judge.

Opinion for the court filed by Circuit Judge RADER. Concurring opinion filed by Senior Circuit Judge PLAGER.

Rader, Circuit Judge.

Consolidated Edison Company of New York and twenty-one other nuclear utilities (collectively, Con Ed) sued the United States, the Department of Energy, and the Energy Research and Development Administration in the United States District Court for the Southern District of New York seeking declaratory judgments and injunctive relief. Consol. Edison Co. of N.Y. v. United States, 45 F. Supp. 2d 331 (S.D.N.Y. 1999). Con Ed's suit challenged the constitutionality of the Energy Policy Act of 1992 (EPACT), 42 U.S.C. § 2297g (1994), on due process and takings grounds. The district court denied the Government's motion to transfer the case to the United States Court of Federal Claims, or alternatively, to dismiss.

On December 5, 2000, this court affirmed the district court's decision to deny the Government's motion. The Government filed a suggestion that this court rehear that December 5 decision en banc. This court unanimously accepted the petition. Accordingly, this court, acting en banc, vacated the judgment of this court entered on December 5, 2000, and reported at 234 F.3d 642 (Fed. Cir. 2000). The en banc court then reassigned the opinion to the panel for revision. Because the Court of Federal Claims can offer an adequate remedy in this case, this court now reverses and remands.

I.

Con Ed sued the Government, challenging the constitutionality of EPACT. Before EPACT, Con Ed contracted with the Government for uranium enrichment services

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under a series of fixed-price agreements. After enactment of EPACT in 1992, the Government began decontaminating and decommissioning several of its uranium processing facilities. EPACT stipulated that the Government would pay sixty-eight percent of the decontamination and decommissioning costs; annual assessments on domestic nuclear utilities would supply the remaining thirty-two percent. EPACT made the Department of Energy responsible for computing each utility's share of the assessment in proportion to that utility's use of Government enrichment services in the past. 42 U.S.C. § 2297g-1(c) (1994) (amended 1998).

After making initial payments under EPACT, Con Ed, and other nuclear utilities not parties to this suit, sued the Government in the Court of Federal Claims seeking refunds of those payments. The lawsuits before the Court of Federal Claims asserted many of the same constitutional grounds as this lawsuit. In one such case, this court reversed the Court of Federal Claims' grant of summary judgment in favor of a nuclear utility, concluding that collection of the assessments under EPACT did not violate the utility's contract under which it had purchased the enriched uranium from the government, nor constituted a taking of the utility's contract rights. Yankee Atomic Elec. Co. v. United States, 112 F.3d 1569 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 2365 (1998).

After several subsequent nuclear utility losses in the Court of Federal Claims, Con Ed filed this suit in the district court. Instead of seeking refunds of assessments, however, Con Ed sought a declaratory judgment that EPACT was unconstitutional on several grounds and an injunction on enforcement of the EPACT assessments. By taking this...