Marshall v. Consumers Power Co.

• Decision Date: 27 October 1975
• Docket Number: Docket No. 21045
• Parties: Wendell H. MARSHALL, Plaintiff-Appellant, v. CONSUMERS POWER COMPANY, a Michigan Corporation, Defendant-Appellee. 65 Mich.App. 237, 237 N.W.2d 266, 82 A.L.R.3d 729
• Court: Court of Appeal of Michigan — District of US

Page 266

237 N.W.2d 266

Wendell H. MARSHALL, Plaintiff-Appellant, v. CONSUMERS POWER COMPANY, a Michigan Corporation Defendant-Appellee.

Docket No. 21045.

65 Mich.App. 237, 237 N.W.2d 266, 82 A.L.R.3d 729

Court of Appeals of Michigan.

Oct. 27, 1975.

Rehearing Denied Dec. 9, 1975.

Released for Publication Jan. 23, 1976.

[65 MICHAPP 239] William J. Ginster, Saginaw, for plaintiff-appellant.

Smith & Brooker by Richard G. Smith, Bay City, Judd L. Bacon, Jackson, for defendant-appellee.

Before QUINN, P. J., and BRONSON and KAUFMAN, JJ.

KAUFMAN, Judge.

This appeal involves an attempt by plaintiff, a resident of Midland County, to stop the construction by defendant, Consumers Power, of a pressurized water nuclear power plant on the south shore of the Tittabawassee River, one and one-eighth miles from plaintiff's residence. In the nearly seven years since Consumers Power applied to the Atomic Energy Commission (AEC) [65 MICHAPP 240] for a construction permit, the proposed plant has been the subject of lengthy AEC hearings, two law suits now pending in Federal court and the instant action. Our review of the trial court's holding requires us to inquire into concerns basic to our Federal system of government. We must determine the division of rights, interests and responsibilities between state government and Federal government in the vitally important and rapidly evolving realm of environmental protection.

On January 15, 1969 Consumers Power filed with the AEC an application for a construction permit. Pursuant to AEC procedures, hearings were held on the application in Midland, Michigan before an Atomic Safety and Licensing Board. This board is a unit of the AEC and was composed of technical and legal personnel drawn from outside the AEC staff. See 10 CFR § 2.1 Et seq. A number of organizations were granted permission to intervene. One of these was the 'Mapleton Intervenors', of which plaintiff was a member. Plaintiff also filed a limited appearance in opposition to the issuance of a construction permit.

Initially, pursuant to AEC regulations, the hearing was limited to concerns of health and safety pertaining only to radiological matters, and nonradiological matters were excluded. However, on the date that the hearing was to conclude the United States Court of Appeals for the District of Columbia held, in the landmark case of Calvert Cliffs' Coordinating Committee v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971), that the AEC regulations which excluded environmental issues from this type of hearing did not comply with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 Et seq. This decision was not challenged by the AEC, and, as a result, the board held two more [65 MICHAPP 241] weeks of hearings at which the power plant's environmental impact was studied. On December 14, 1972, the Atomic Safety and Licensing Board recommended that the requested construction permit be issued. On the next day, the AEC issued the permit. This issuance was appealed by the intervenors to the Atomic Safety and Licensing Appeal Board.

On May 24, 1972, prior to the decision of the safety and licensing board, plaintiff and a number of others filed a suit in the United States District Court for the Eastern District of Michigan, Northern Division, Aeschliman v. AEC (File No. 3202). This suit, which has not yet been decided, sought a declaratory judgment based on the alleged inadequacy of the safety and licensing board hearings and on the alleged failure of the board to consider the evidence presented by the Mapleton Intervenors.

Plaintiff, on January 17, 1973, filed an action in Midland County Circuit Court, but later voluntarily dismissed it without prejudice and with costs to defendant. He then filed the instant action in Jackson County Circuit Court on March 28, 1973. Defendant moved for a change of venue of this case and, on July 31, 1973, the court transferred the cause of Midland County.

After this case was filed, the AEC's safety and licensing appeal board affirmed the decision to issue the construction permit. This affirmance is currently on appeal to the United States Circuit Court of Appeals for the District of Columbia (D.C.Cir. No. 73-1776).

Plaintiff's complaint sought, in its first count, a declaration of rights that defendant's proposed power plant would constitute a 'private and/or public nuisance' and in its second count, money [65 MICHAPP 242] damages of $750,000. He contended that the operation of defendant's power plant would violate the Michigan environmental protection act, 1970 P.A. 127, M.C.L.A. § 691.1201 Et seq.; M.S.A. § 14.528(201) Et seq. and would constitute a common law nuisance against which he asked relief pursuant to GCR 1963, 521.6.

The allegations on which he founded his complaint were:

'6) That in constructing and operating its proposed unclear Units No. 1 and No. 2 in this location and area, a threatened or anticipated private and/or public nuisance will result to a practical certainty or probable result or a natural or inevitable consequence in the following particulars:

'6A. That the operation of the proposed cooling pond and towers interacting with the prevailing meterological (sic) conditions at this site in the winter will necessarily result in creation of steam fog and icing; which will to a practical certainty or as a natural or inevitable consequence invade plaintiff's premises; thereby adversely affecting plaintiff's vested personal and property rights, and his lawful rights incidental thereto.

'6B. That dangerous or hazardous vehicular driving conditions will necessarily be created in winter by the operation of defendant's proposed unclear plant; in that fogging, interference with visibility, and slippery and treacherous driving conditions from creation of ice will necessarily result from the operation of said nuclear plant under all the circumstances and conditions prevailing to a meterological (sic) and scientific certainty or as a natural or inevitable consequence of same.

'6C. That plaintiff's premises will necessarily be subjected to accumulation (of) ice on occasions in the winter time under all the conditions and circumstances prevailing to a meterological (sic) and scientific certainty or as a natural or inevitable consequence of the operation of defendant's unclear plant.

'6D. That the operation of defendant's unclear plant would jeopardize and/or aggravate plaintiff's health; [65 MICHAPP 243] would cause him to become depressed (E.g., especially where the emergency core cooling system planned to be installed in close proximity to his premises is of unproven workability; and the results of a possible nuclear accident to catastrophic as to give rise to anxiety and mental suffering; and further, where he has no private insurance coverage on his premises in the event of a nuclear accident by reason of the nuclear exclusion clause in his insurance policy); would impair the marketability of his property, and result in a depreciation of the value thereof, and in a diminution in the rental value thereof; would materially interfere with the plaintiff's normal use and enjoyment of his property; would result in annoyance, inconvenience, or discomfort.

'6E. That the operation of the proposed unclear power plant to a certainty and/or probability will leave plaintiff with no private insurance coverage on his promises in the event of a nuclear accident by reason of the standard nuclear exclusion clause in his insurance policy, and plaintiff will suffer deprivation of a vested personal property right and due process of law by reason thereof.

'6F. That the emergency core cooling system planned to be installed in such proposed nuclear units is of unproven workability, and the results of a possible nuclear accident so catastrophic that the siting and location of the said plant is a private and/or public nuisance.'

Defendant moved for an accelerated judgment, GCR 1963, 116, as to plaintiff's first count on four grounds: (1) that the court lacked jurisdiction of the subject matter because it had been preempted by the Federal government (GCR 1963, 116.2); (2) that the matter was res judicata; (3) that plaintiff was equitably estopped from suing; (4) that plaintiff had made an election of remedies which precluded his bringing the action. Defendant moved for summary judgment on count two on the ground that plaintiff had failed to state a claim [65 MICHAPP 244] upon which relief could be granted, GCR 1963, 117.2(1).

After hearings and filing of briefs, the trial court granted both motions. In an extensive and detailed opinion it held that the Federal government had preempted the field of regulation. No holding was rendered on defendant's three other grounds. The court also found that plaintiff's second count presented no actionable claim because plaintiff had failed to allege facts from which the court might hold defendant's nuclear power plant a nuisance. The court held that plaintiff had not alleged facts which tended to show that the plant, if built, would be either a nuisance per se or a nuisance Per accidens and that plaintiff had demonstrated no injury on which damages could be based.

I

The doctrine of Federal preemption has its roots in the supremacy clause of the Constitution, U.S.Const. art. VI. The supremacy of Federal law is counterbalanced by the Tenth Amendment, which reserves to the states those powers not specifically consigned to the Federal government or specifically forbidden to the states. U.S.Const. Am.X. Where the Federal government has preempted an area of jurisdiction, state governments are prohibited from legislating or regulating. Where preemption exists, however, state courts will not always be prevented from acting. A litigant may still enforce rights pursuant to the Federal law in state courts unless the Constitution or Congress has, expressly or impliedly, given a Federal court exclusive jurisdiction over the subject matter. Mondou v. New...