Jersey Cent. Power & Light Co. v. State of N.J.
| Decision Date | 23 September 1985 |
| Docket Number | No. 84-5883,84-5883 |
| Citation | 772 F.2d 35 |
| Parties | JERSEY CENTRAL POWER & LIGHT COMPANY v. The STATE OF NEW JERSEY and Irwin I. Kimmelman, Attorney General of the State of New Jersey. Appeal of STATE OF NEW JERSEY and Irwin I. Kimmelman. |
| Court | U.S. Court of Appeals — Third Circuit |
Irwin I. Kimmelman, Atty. Gen. of N.J., James J. Ciancia, Asst. Atty. Gen., Lawrence E. Stanley, Deputy Atty. Gen. (argued), Trenton, N.J., for appellants.
Martin S. Siegel (argued), Edward K. Dehope, Susan K. Fischer, Riker, Danzig, Scherer & Hyland, Morristown, N.J., for appellees; Bishop, Liberman & Cook, New York City, of counsel.
Before GIBBONS and HIGGINBOTHAM, Circuit Judges, and NEWCOMER, District Judge *.
It is axiomatic in our federal jurisprudence that a case must present a live controversy throughout the entire course of the litigation. This principle, predicated upon Article III of our Constitution, as well as upon prudential concerns, assures that throughout all stages of the litigation, a case retains both a concrete adversariness between the parties and remediability by the court.
As in the related cases of New Jersey Turnpike Authority v. Jersey Central Power & Light and General Public Utilities Nuclear, 772 F.2d 25 (3rd Cir., 1985) and Jersey Central Power & Light v. Township of Lacey, 772 F.2d 1103 (3rd Cir., 1985) the principal issue to be resolved on this appeal is whether, by reason of changed circumstances after the case arose, this controversy is no longer justiciable and we are thereby divested of our constitutional jurisdiction under Article III, because of mootness.
The State of New Jersey has taken this appeal from the district court's December 27, 1984 grant of final declaratory and injunctive relief precluding the State from interfering with a public utility's succession of shipments of radioactive nuclear waste from New York into New Jersey.
The public utility instituted this action to declare certain provisions of the New Jersey Radiation Protection Act, N.J.S.A. 26:2D-18, et seq., invalid and unenforceable as violative of the Supremacy and Commerce Clauses of the United States Constitution. Additionally, the public utility sought to preliminarily and permanently enjoin enforcement of the state statute and any other state action which interfered with, restricted, delayed or prevented it from transporting the spent nuclear fuel through New Jersey. The public utility also requested damages, costs of suit, reasonable attorney's fees and other relief.
The district court narrowed the substantive issue to the statutory question of whether the State properly designated a route for the shipment of these hazardous materials in accordance with the provisions of the Hazardous Materials Transportation Act, 49 U.S.C. Secs. 1801-1812 (1982).
The State seeks our review of the district court's invalidation of its designation of a shipment route alternate to that approved by the Nuclear Regulatory Commission on the ground that it was inconsistent with the regulations promulgated under the Hazardous Materials Transportation Act.
However, pending our disposition of this appeal, the six-month shipping campaign traversed the route approved by the Nuclear Regulatory Commission, as directed by the district court, and has since concluded, thereby rendering our review of the public utility's injunctive claim meaningless since the State action sought to be enjoined has irretrievably occurred. We reached a similar conclusion regarding the injunctive relief sought in the case of New Jersey Turnpike Authority v. Jersey Central Power & Light, et. al. But unlike that case we must here also consider whether the public utility's additional prayers for declaratory relief, damages and attorney's fees are sufficient to avoid mootness of the case as a whole, despite the mooting of the injunctive relief claim.
After having reviewed the record with care, we are inclined to hold that the public utility's claims for damages and attorney's fees were held in abeyance by the district court pending our resolution of the claims for injunctive and declaratory relief. Because only the claims for the injunctive and declaratory relief are before us on this appeal and, because the complaining party, the public utility, takes the position that the substantive issues underlying these claims for equitable relief are moot, we conclude that the adversity required to satisfy Article III has dissipated and thus, our jurisdiction has ceased. We will therefore dismiss this appeal as moot. By this disposition, the district court decision in favor of the public utility continues to have legal effect and we will thus remand this matter with directions to the district court to consider the public utility's outstanding claims for damages and attorney's fees.
Jersey Central Power and Light ("JCP & L") is a public utility incorporated under the laws of the State of New Jersey and is the owner of the Oyster Creek Nuclear Generating Station ("Oyster Creek") located in Lacey Township, New Jersey. 1
In 1975, at a time when the nuclear industry assumed spent fissionable products could be recycled, Nuclear Fuel Services contracted to supply nuclear waste reprocessing services to JCP & L for spent fuel that was generated at Oyster Creek and to store that fuel at the Western New York Nuclear Service Center. The facility is owned by the New York State Energy Research and Development Authority ("NYSERDA"), and is located in West Valley, New York. Pursuant to this contractual arrangement, JCP & L transported 224 of its 980 spent fuel assemblies 2 generated at Oyster Creek to West Valley, New York. In September of 1976, however, Nuclear Fuel Services withdrew from the reprocessing business and the 224 spent fuel assemblies were never reprocessed. They simply remained in storage in the West Valley storage pool.
Due to a dispute between NYSERDA and JCP & L and certain other public utilities storing fuel at the West Valley facility, NYSERDA commenced an action in the United States District Court for the Western District of New York entitled New York State Energy Research and Development Authority v. Nuclear Fuel Services, Inc., Civ. No. 82-426 (W.D.N.Y.) ("the NYSERDA case") alleging liability for removal of spent fuel stored at the disposal and reprocessing center. The district court ruled that JCP & L would be a trespasser if NYSERDA's unequivocal demand for removal was made and ignored. New York State Energy Research and Development Authority v. Nuclear Fuel Services, 561 F.Supp. 954 (W.D.N.Y.1983).
Subsequently, NYSERDA indeed made an unequivocal demand for removal of JCP & L's spent fuel. On September 30, 1983 NYSERDA and JCP & L entered into a partial settlement agreement which was later incorporated into the October 14, 1983 order directing JCP & L to commence the removal of its 225 spent fuel assemblies from West Valley by October 1, 1984 and complete removal by May 31, 1985. 3 The shipment and transportation route of these 224 spent fuel assemblies from West Valley, New York to the Oyster Creek, New Jersey, facility, as well as their storage, has instigated further proceedings in the United States District Court for the District of New Jersey, 4 and underlies this appeal.
In January 1984, JCP & L authorized Transnuclear, Inc. to begin inquiries with the states of New York, New Jersey and Pennsylvania regarding the routing of the spent fuel shipments within these states. JCP & L proposed a route leaving West Valley and proceeding east and then south through New York on the first day then cutting across the northeastern corner of Pennsylvania. Entry was initiated into New Jersey at the Delaware Water Gap and proceeded east then southeast through central New Jersey to Oyster Creek on the second day. The route required transportation along Interstate Highways, and the sequence of highways starting from West Valley was as follows: U.S. Route 219, Interstate 90 (I-90), I-481, I-81, I-380, I-80, I-287, I-95 (N.J. Turnpike), I-195 then local roads to Oyster Creek. JCP & L applied to the Nuclear Regulatory Commission ("NRC") for approval of this "northern route" in June and July 1984.
On September 18, 1984, JCP & L applied to the New Jersey Department of Environment Protection ("DEP") for a Certificate of Handling pursuant to the New Jersey Radiation Protection Act, N.J.S.A. Sec. 26:2D-18 et. seq., ("RPA") to authorize the shipment of spent nuclear fuel through New Jersey via the NRC proposed route. On September 26, 1984, JCP & L was notified that its proposed route for the return of the spent nuclear fuel to Oyster Creek was judged by the NRC to meet regulatory requirements set forth in 10 C.F.R. Sec. 73.37. However, on December 5, 1984, the DEP saw fit to designate an alternate "southern route." 5 The parties, however, were unable to agree as to the appropriate route and hence JCP & L brought suit against the State of New Jersey.
The complaint sought a declaration that certain provisions of the New Jersey Radiation Protection Act are invalid and consequently unenforceable as violative of the Supremacy and Commerce Clauses of the United States Constitution. Additionally, JCP & L sought to preliminarily and permanently enjoin enforcement of the statute and any other state statute or policy that would interfere with the transportation of the spent nuclear fuel. JCP & L also requested damages and attorney's fees.
On December 6, 1985, Judge Bissel conducted a hearing with respect to JCP & L's application for a Temporary Restraining Order. The district court denied that application but issued an Order to Show Cause and scheduled a...
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