Cuomo v. Long Island Lighting Co.

• Decision Date: 17 February 1988
• Citation: 520 N.E.2d 546,525 N.Y.S.2d 828,71 N.Y.2d 349
• Parties: , 520 N.E.2d 546 Mario M. CUOMO, et al., Respondents, v. LONG ISLAND LIGHTING COMPANY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 828

525 N.Y.S.2d 828

71 N.Y.2d 349, 520 N.E.2d 546

Mario M. CUOMO, et al., Respondents, v. LONG ISLAND LIGHTING COMPANY, Appellant.

Court of Appeals of New York.

Feb. 17, 1988.

K. Dennis Sisk, W. Taylor Reveley, III, James N. Christman and Kathy E.B. McCleskey, Richmond, Va., for appellant.

Martin B. Ashare, Co. Atty., Patchogue (David A. Brownlee, Michael J. Lynch, Kenneth M. Argentieri, Pittsburgh, Pa., Herbert H. Brown and Lawrence C. Lanpher, Washington, D.C., of counsel), for Suffolk County, respondent.

Robert Abrams, Atty. Gen. (John W. Corwin and Mary M. Gundrum, New York

City, of counsel), and Fabian G. Palomino, Albany, for Mario M. Cuomo, respondent.

John F. Shea, III and Stephen B. Latham, Riverhead, for Southampton Tp., respondent.

OPINION OF THE COURT

WACHTLER, Chief Judge.

The plaintiffs, involved in a licensing dispute before a Federal agency, have asked the courts of this State to answer a question of State law which may be of use in the pending administrative proceeding. Plaintiffs here seek nothing more than an advisory opinion for possible use by a Federal agency--relief beyond the judicial function, and inconsistent with the constitutional mandate of this court. Neither the Federal agency nor the Long Island Lighting Company (LILCO) ¹ can by agreement confer subject matter jurisdiction upon this court where there is none.

I

In the aftermath of the Three Mile Island nuclear accident, as part of the Nuclear Regulatory Commission Authorization Act for fiscal year 1980 (Pub.L. 96-295), Congress made the existence of an adequate Emergency Response Plan (Emergency Plan) a prerequisite to the issuance of an operating license to a nuclear facility. Section 109(b)(1)(B)(i)(II) of that act provides that a State, local or utility Emergency Plan may be adequate to satisfy the statute if it "provides reasonable assurance that public health and safety is not endangered by operation of the facility concerned."

It is well known that in the case of LILCO Shoreham nuclear facility, the State and local governments have refused to submit an Emergency Plan, and maintain that no plan would provide adequate protection in the case of a nuclear accident; LILCO, therefore, has devised its own Emergency Plan. Briefly stated, the version of the LILCO Emergency Plan in the record before the court calls for formation of a private local emergency response organization (LERO), made up of LILCO employees and volunteers, to implement the Emergency Plan. The plan envisions six general activities to be performed by LERO in the case of an emergency: (1) accident assessment; (2) notification of the public; (3) recommendation of protective measures within a 10-mile "plume exposure pathway emergency planning zone"; (4) recommendation of protective action within a 50-mile "ingestion exposure pathway"; (5) recommendation of steps and procedures for reentry and recovery after the accident; and (6) facilitation of the flow of traffic if evacuation is necessary. The plan also provides that if Government authorities take action to protect the public "these actions will take precedence over LERO actions."

The dispute in this case between plaintiffs Governor Cuomo, the County of Suffolk, and the Town of Southampton (together, the Government) and defendant LILCO finds its roots in a pending Nuclear Regulatory Commission (NRC) proceeding in which LILCO is seeking an operating license for its Shoreham facility. During the initial licensing proceeding before the Atomic Safety and Licensing Board, ² the Governme argued that LILCO was without authority under New York State law to implement the proposed Emergency Plan. The Atomic Safety and Licensing Board then requested that the parties go to New York State court to find out the answer.

The present actions were then brought in Supreme Court, ³ with each plaintiff alleging in essence, that LILCO was without authority under State law to implement the Emergency Plan, and that implementation would be an illegal usurpation of the Government's police power. The actions were consolidated, LILCO moved to dismiss, and the Government cross-moved for summary judgment. The trial court, after first holding that a justiciable controversy was presented, granted partial summary judgment to the Government, agreeing that LILCO was without authority under State law to implement the plan, and that to do so would be a usurpation of the Government's police power. The Appellate Division affirmed, and subsequently certified to this court the question of whether the order of affirmance was properly made.

Following the decision in Supreme Court, the Atomic Safety and Licensing Board held that the Emergency Plan did not meet agency regulations, because LILCO had not shown that the plan could be lawfully implemented. The Atomic Safety and Licensing Appeal Board affirmed. The NRC then reversed, however, and remanded the case to the Atomic Safety and Licensing Board with instructions to consider what has become known as the "realism doctrine." This doctrine, which was made part of recently promulgated amendments to NRC regulations, states that: "In making its determination on the adequacy of a utility plan, the NRC will recognize the reality that in an actual emergency, state and local government officials will exercise their best efforts to protect the health and safety of the public. The NRC will determine the adequacy of that expected response, in combination with the utility's compensating measures, on a case-by-case basis * * * [I]t may be presumed that in the event of an actual radiological emergency state and local officials would generally follow the utility plan [if no government plan exists]" (10 CFR § 50.47[c][1][iii][B] ). Additionally, in its comments on the new regulations the NRC instructed that: "The presiding Licensing Board should not hesitate to reject any claim that state and local officials will refuse to act to safeguard the health and safety of the public in the event of an actual emergency. In actual emergencies, state, local, and federal officials have invariably done their utmost to prote the citizenry, as two hundred years of American history amply demonstrates" (52 Fed.Reg. 42085 [Nov. 3, 1987] ).

Finally, upon remand, and after the present case was argued in this court, the Atomic Safety and Licensing Board again held that the Emergency Plan could not be safely implemented. This decision has not yet been appealed to the Atomic Safety and Licensing Appeal Board.

II

The courts of New York do not issue advisory opinions for the fundamental reason that in this State "[t]he giving of such opinions is not the exercise of the judicial function" (Matter of State Indus. Commn., 224 N.Y. 13, 16, 119 N.E. 1027 [Cardozo, J.] ). The role of the judiciary is to " 'give the rule or sentence' " ( Matter of Richardson, 247 N.Y. 401, 410, 160 N.E. 655), and thus the courts may not issue judicial decisions that "can have no immediate effect and may never resolve anything" ( New York Pub. Interest Research Group [NYPIRG] v. Carey, 42 N.Y.2d 527, 531, 399 N.Y.S.2d 621, 369 N.E.2d 1155). It is therefore settled law that an action "may not be maintained if the issue presented for adjudication involves a future event beyond control of the parties which may never occur" ( e.g., American Ins. Assn. v. Chu, 64 N.Y.2d 379, 385, 487 N.Y.S.2d 311, 476 N.E.2d 637; NYPIRG v. Carey, 42 N.Y.2d 527, 531, 399 N.Y.S.2d 621, 369 N.E.2d 1155, supra; Matter of State Indus. Commn., 224 N.Y. 13, 16, 119 N.E. 1027, supra ). This rule not only prevents dissipation of judicial resources, but more importantly, it prevents devaluation of the force of judicial decrees which decide concrete disputes.

Applying these principles in American Ins. Assn. v. Chu (supra) and NYPIRG v. Carey (supra), the court held that where the injury to the plaintiff was contingent upon the enactment of legislation in the future, the dispute was not justiciable. In Matter of State Indus. Commn. (supra) the same rule was applied in an administrative context, and the court refused to rule on the legality of regulations under consideration but not yet promulgated by the State Industrial Commission.

In the present case, Government argues that LILCO's implementation of the Emergency Plan would usurp Government's police power. However, this potential encroachment can occur only if the NRC approves the plan, which it has not yet done and which it may never do. In addition the Emergency Plan has been revised six times during the pendency of this litigation alone--once after the case was argued before this court. Therefore, even if a plan is at some point approved, it certainly cannot be known at this point whether any final version of the plan would pose the threat that Government objects to here. Thus the potential for encroachment of which Government complains is contingent upon unfinished Federal administrative decisions, and presents a nonjusticiable dispute under Matter of State Indus. Commn. (supra), American Ins. Assn. v. Chu (supra), and NYPIRG v. Carey (supra).

Nor does the distinction drawn in NYPIRG v. Carey, between a bare challenge to the legality of a statute, and a challenge incidental to a dispute "as to whether the proposition should be placed or remain on the ballot" (id., 42 N.Y. at 531, 399 N.Y.S.2d 621, 369 N.E.2d 1155), find application here, although apparently relied upon by the lower courts in this case. As explained in NYPIRG v. Carey (supra), the latter situation, in which a court may rule albeit "with reluctance" on pending legislation, does not call for an advisory opinion because: "The effect of the court's determination in those cases does not depend on the outcome of the election. On the contrary, those orders have the immediate and practical effect of determining whether the proposition should be submitted to the voters". ( Id., at 532, 399 N.Y.S.2d 621, 369 N.E.2d 1155; see also, Matter of Cantrell v....