Gage v. Commonwealth Edison Company

• Decision Date: 27 November 1972
• Docket Number: No. 71 C 2691.,71 C 2691.
• Parties: Laurence GAGE et al., Plaintiffs, v. COMMONWEALTH EDISON COMPANY et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

356 F. Supp. 80

Laurence GAGE et al., Plaintiffs, v. COMMONWEALTH EDISON COMPANY et al., Defendants.

No. 71 C 2691.

United States District Court, N. D. Illinois, E. D.

November 27, 1972.

COPYRIGHT MATERIAL OMITTED

Joseph V. Karaganis, Chicago, Ill., for plaintiffs.

James R. Thompson, U. S. Atty., by Larry Cohen, Asst. U. S. Atty., Chicago, Ill., and Isham, Lincoln & Beale, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

BAUER, District Judge.

This cause comes on the motions of defendants Atomic Energy Commission ("AEC") and Commonwealth Edison Company ("Edison") to dismiss for lack of jurisdiction and for failure to state a claim upon which relief can be granted.

This is an action to prevent defendants' alleged deprivation of plaintiffs' rights under the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321. Jurisdiction is alleged to be founded upon 28 U.S.C. §§ 1331, 1343, and 1361 and upon 42 U.S.C. § 1983 and 5 U.S.C. § 702.

Plaintiffs are farmers (both landowners and tenants) and civic, trade, and religious groups in the community of Brookfield, La Salle County, Illinois. Defendant Edison, a public utility company, plans to construct a nuclear power plant in the area. The proposed plant would cover almost 7,000 acres of land, 4,500 of which would be used for a cooling lake for hot water discharges.

In the process of acquiring land for the installation, Edison has threatened to use its State of Illinois eminent domain power to condemn the property of those landowners who are unwilling to sell. Plaintiffs seek to enjoin Edison from further acquisition of this land prior to the AEC environmental analysis.

Pursuant to the Atomic Energy Act, 42 U.S.C. §§ 2131 and 2133, Edison must obtain the AEC's approval of its project. Edison's application for a construction permit is currently pending before the AEC. Plaintiffs ask the Court to compel AEC officials to perform their alleged "clear legal duty"—to adopt construction licensing procedures requiring the AEC's consideration of land use prior to (1) issuance of a construction license, (2) commitment of major financial resources by Edison, and (3) damage to the environment resulting from improper land use.

The first of these steps alleged by plaintiffs to constitute AEC "duties" has been recognized by the AEC in the promulgation of an amendment to its regulations, 10 C.F.R. § 50.10 (March, 1972). Thus, since the AEC will consider environmental factors prior to granting Edison a construction license, the focal point of the relief requested is narrowed to consideration of land use prior to steps (2) and (3) listed above.

The applicable portions of NEPA include 42 U.S.C. § 4331(a), which enunciates a federal governmental policy that

". . . all practicable means and measures, including financial and technical assistance, shall be used in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans."

Further, the Act directs at § 4332 that

". . . to the fullest extent possible: . . . (2) all agencies of the Federal Government shall— . . .

"(C) include in every recommendation or report on proposals for . . . major Federal actions significantly affecting the quality of human environment, a detailed statement by the responsible official on—

"(i) the environmental impact of the proposed action,

"(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented "(iii) alternatives to the proposed action. . . ."

Plaintiffs allege, inter alia, that this prime farm land should not be used for the facility since farming would constitute the best use of the land from the standpoint of environmental values. They further submit that, if the land must be used for a nuclear power plant, Edison need condemn only 2,500 acres, for alternative cooling methods would require less than one percent of the area planned for the cooling pond.

ATOMIC ENERGY COMMISSION'S MOTION TO DISMISS

The AEC submits (1) that this action is barred by the doctrine of sovereign immunity; (2) that exclusive jurisdiction over this action rests in the United States Court of Appeals; (3) that this case is not "ripe" for adjudication since federal action is not yet involved; and (4) that NEPA establishes no clear legal duty of the AEC to conduct an environmental analysis prior to Edison's acquisition of land for the proposed facility.

Sovereign Immunity

The Court notes first that this doctrine has been held not to apply to suits to compel performance of a specific statutory duty. See Deering Milliken, Inc. v. Johnston, 295 F.2d 856 (4th Cir. 1961). Section 102 of NEPA (42 U.S.C. § 4332) clearly enumerates specific duties of all federal agencies. Thus, since this is an action to compel the performance of an alleged duty under that section, it is not barred by sovereign immunity. La Raza Unida v. Volpe, 337 F. Supp. 221 (N.D.Cal.1971). Further, this doctrine has been held to be waived when the agency action complained of is governed by the Administrative Procedure Act, 5 U.S.C. § 500 et seq. See, e. g., Scanwell Laboratories, Inc. v. Schaffer, 137 U.S.App.D.C. 371, 424 F.2d 859, 873 (1970). Pursuant to 42 U.S.C. § 2231, actions of the AEC are governed by that Act; hence, allegations of improper action by the AEC render sovereign immunity is inapplicable in this case.

Appellate Court Jurisdiction

One basis for the AEC's contention that the Court of Appeals has exclusive jurisdiction over this action is 28 U.S.C. § 2342(4), which provides for appellate determination of the validity of any final order of the AEC made reviewable by 42 U.S.C. § 2239. This Court, however, cannot accept the argument that the AEC's failure to perform an alleged duty required by NEPA constitutes a "final agency order" within the meaning of the statute. The Administrative Procedure Act defines an agency order as

". . . the whole or a part of a final disposition . . . in a matter other than rule making but including licensing."

5 U.S.C. § 551(6) (emphasis added)

Since the AEC's failure to act cannot become a final disposition unless or until it grants Edison a construction license without having prepared the requisite environmental analysis, such failure to act cannot constitute a final agency order conferring appellate court jurisdiction.

The AEC contends further that the Complaint challenges the rule-making procedures of that agency. Jurisdiction for such a challenge lies exclusively in the Court of Appeals pursuant to 28 U.S. C. § 2342. However, plaintiffs argue persuasively that in the instant action they are contesting not the AEC's rule-making but rather its failure to conform to NEPA requirements of its licensing procedures and that their challenge of AEC rule-making is pending in the District of Columbia Circuit Court of Appeals.

In further response to the AEC's contention that this action is appropriate only in the appellate court, plaintiffs have asserted that they are unable to seek appellate review of the agency's licensing procedures pursuant to 28 U.S. C. § 2344, since only parties to licensing proceedings can bring such an action. Consequently, their principal position has been that this Court must take jurisdiction in order to prevent irreparable harm to them. Although this appellate remedy was not available to plaintiffs at the time they filed their Complaint, the Court is informed that the AEC has published the notice of hearing in the licensing proceedings. Since this notice affords plaintiffs the opportunity to become parties to those proceedings, pursuant to 28 U.S.C. § 2344, they can now avail themselves of appellate review of the AEC's licensing procedures.

A Federal District Court has jurisdiction to compel performance by an agency of its clear, non-discretionary legal duty, if statutory judicial review is unavailable or inadequate to protect plaintiffs' rights. Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958); Jewel Companies, Inc. v. F. T. C., 432 F.2d 1155 (7th Cir. 1970). Although the duties set forth in NEPA § 102 are clear and non-discretionary, Calvert Cliffs' Coordinating Committee v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1114-1115 (1971), this Court is convinced that the available appellate remedy is sufficient to grant the relief which plaintiffs request, upon proof of their claims. Should the Court of Appeals find that the existing licensing procedures of the AEC are invalid in the light of NEPA § 102, it can enjoin, set aside, or suspend those procedures pursuant to 28 U.S.C. § 2349 in order to effect compliance with NEPA. Accordingly, this Court need not take jurisdiction of this action in order to prevent irreparable harm to plaintiffs.

As to plaintiffs' claim that this Court has jurisdiction, pursuant to 5 U.S.C. § 704, to review final agency action, the Court will consider first the definition of "agency action" in the Administrative Procedure Act, 5 U.S.C. § 551(13):

"(13) "agency action" includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act."

Although the Court agrees with plaintiffs that the AEC's alleged failure to prepare an environmental analysis prior to Edison's land acquisition constitutes "agency action" within the meaning of the Administrative Procedure Act, the question remaining is whether such action is final in nature so as to come within the purview of 5 U.S.C. § 704.

The Court is of the opinion that the AEC's alleged failure to act can constitute "final agency action" only if it can be established that the AEC has a clear legal duty under NEPA so to act. Absent such a duty, the AEC's inaction cannot be construed as final, for "final" necessarily implies that nothing is forthcoming in a certain course...