Pacific Gas and Electric Company v. State Energy Resources Conservation Development Commission, No. 81-1945

CourtUnited States Supreme Court
Writing for the CourtWHITE
Citation103 S.Ct. 1713,75 L.Ed.2d 752,461 U.S. 190
PartiesPACIFIC GAS AND ELECTRIC COMPANY, et al., Petitioners v. STATE ENERGY RESOURCES CONSERVATION & DEVELOPMENT COMMISSION et al
Decision Date20 April 1983
Docket NumberNo. 81-1945

461 U.S. 190
103 S.Ct. 1713
75 L.Ed.2d 752
PACIFIC GAS AND ELECTRIC COMPANY, et al., Petitioners

v.

STATE ENERGY RESOURCES CONSERVATION & DEVELOPMENT COMMISSION et al.

No. 81-1945.
Argued Jan. 17, 1983.
Decided April 20, 1983.
Syllabus

Section 25524.1(b) of the California Public Resources Code provides that before a nuclear powerplant may be built, the State Energy Resources Conservation and Development Commission must determine on a case-by-case basis that there will be "adequate capacity" for interim storage of the plant's spent fuel at the time the plant requires such storage. Section 25524.2 imposes a moratorium on the certification of new nuclear plants until the State Commission finds that there has been developed and that the United States through its authorized agency has approved a demonstrated technology or means for the permanent and terminal disposal of high-level nuclear wastes. Petitioner electric utilities filed an action in Federal District Court seeking a declaration that these provisions, inter alia, are invalid under the Supremacy Clause because they were pre-empted by the Atomic Energy Act of 1954. The District Court, after finding that the issues presented by the two provisions were ripe for adjudication, held that they were pre-empted by and in conflict with the Atomic Energy Act. The Court of Appeals agreed that the challenge to § 25524.2 was ripe for review, but found that the challenge to § 25524.1(b) was not because it could not be known whether the State Commission will ever find a nuclear plant's storage capacity to be inadequate. The court went on to hold that § 25524.2 was not designed to provide protection against radiation hazards but was adopted because uncertainties in the nuclear fuel cycle make nuclear power an uneconomical and uncertain source of energy, and therefore that the section was not pre-empted because §§ 271 and 274(k) of the Atomic Energy Act constituted authorization for States to regulate nuclear powerplants for purposes other than protection against radiation hazards. The court further held that § 25524.2 was not invalid as a barrier to fulfillment of the federal goal of encouraging the development of atomic energy.

Held:

1. The challenge to § 25524.2 is ripe for judicial review, but the questions concerning § 25524.1(b) are not. Pp. 200-203.

(a) The question of ripeness turns "on the fitness of the issues for judicial decision" and "the hardship to the parties of withholding court

Page 191

consideration." Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681. Both of these factors counsel in favor of finding the challenge to § 25524.2 ripe for adjudication. The question of pre-emption is predominately legal and to require the industry to proceed without knowing whether the moratorium imposed by § 25524.2 is valid would impose a palpable and considerable hardship on the utilities, and may ultimately work harm on the citizens of California. Moreover, if § 25524.2 is void as hindering commercial development of atomic energy, delayed resolution would frustrate one of the key purposes of the Atomic Energy Act. Pp. 200-202.

(b) Under circumstances where it is uncertain whether the State Commission will ever find a nuclear plant's interim storage capacity to be inadequate, and where, because of this Court's holding, infra, that § 25524.2 is not pre-empted by federal law, it is unlikely that industry behavior would be uniquely affected by such uncertainty surrounding the interim storage provision, a court should not stretch to reach an early, and perhaps a premature, decision respecting § 25524.1(b). P.203.

2. Section 25524.2 is not pre-empted by the Atomic Energy Act. Pp.203-223.

(a) From the passage of the Atomic Energy Act in 1954, through several revisions, and to the present day, Congress has preserved the dual regulation of nuclear-powered electricity generation: the Federal Government maintains complete control of the safety and "nuclear" aspects of energy generation, whereas the States exercise their traditional authority over economic questions such as the need for additional generating capacity, the type of generating facilities to be licensed, land use, and ratemaking. This Court accepts California's avowed economic rather than safety purpose as the rationale for enacting § 25524.2, and accordingly the statute lies outside the federally occupied field of nuclear safety regulation. Pp. 205-216.

(b) Section 25524.2 does not conflict with federal regulation of nuclear waste disposal, with the decision of the Nuclear Regulatory Commission (NRC) that it is permissible to continue to license reactors, notwithstanding uncertainty surrounding the waste disposal problem, or with Congress' recent passage of the Nuclear Waste Policy Act of 1982 directed at that problem. Because the NRC's decision does not and could not compel a utility to develop a nuclear plant, compliance with both that decision and § 25524.2 is possible. Moreover, because the NRC's regulations are aimed at insuring that plants are safe, not necessarily that they are economical, § 25524.2 does not interfere with the objective of those regulations. And as there is no attempt on California's part to enter the field of developing and licensing nuclear waste disposal technology, a field occupied by the Federal Government, § 25524.2 is not pre-empted any more by the NRC's obligations in the waste disposal

Page 192

field than by its licensing power over the plants themselves. Nor does it appear that Congress intended through the Nuclear Waste Policy Act of 1982 to make the decision for the States as to whether there is now sufficient federal commitment to fuel storage and waste disposal that licensing of nuclear reactors may resume. Moreover, that Act can be interpreted as being directed at solving the nuclear waste disposal problem for existing reactors without necessarily encouraging or requiring that future plant construction be undertaken. Pp. 217-220.

(c) Section 25524.2 does not frustrate the Atomic Energy Act's purpose to develop the commercial use of nuclear power. Promotion of nuclear power is not to be accomplished "at all costs." Moreover, Congress has given the States authority to determine, as a matter of economics, whether a nuclear plant vis-a-vis a fossil fuel plant should be built. California's decision to exercise that authority does not, in itself, constitute a basis for pre-emption. Pp. 220-223.

659 F.2d 903, affirmed.

John R. McDonough, Long Beach, Cal., for petitioners.

Louis F. Claiborne, Washington, D.C., for the United States as amicus curiae, supporting petitioners, by special leave of Court.

Laurence H. Tribe, Cambridge, Mass., for the respondents.

Page 193

Justice WHITE delivered the opinion of the Court.

The turning of swords into plowshares has symbolized the transformation of atomic power into a source of energy in

Page 194

American society. To facilitate this development the federal government relaxed its monopoly over fissionable materials and nuclear technology, and in its place, erected a complex scheme to promote the civilian development of nuclear energy, while seeking to safeguard the public and the environment from the unpredictable risks of a new technology. Early on, it was decided that the states would continue their traditional role in the regulation of electricity production. The interrelationship of federal and state authority in the nuclear energy field has not been simple; the federal regulatory structure has been frequently amended to optimize the partnership.

This case emerges from the intersection of the federal government's efforts to ensure that nuclear power is safe with the exercise of the historic state authority over the generation and sale of electricity. At issue is whether provisions in the 1976 amendments to California's Warren-Alquist Act, Cal.Pub.Res.Code §§ 25524.1(b) and 25524.2 (West 1977), which condition the construction of nuclear plants on findings by the State Energy Resources Conservation and Development Commission that adequate storage facilities and means of disposal are available for nuclear waste,

Page 195

are preempted by the Atomic Energy Act of 1954, 42 U.S.C. § 2011, et seq.

I

A nuclear reactor must be periodically refueled and the "spent fuel" removed. This spent fuel is intensely radioactive and must be carefully stored. The general practice is to store the fuel in a water-filled pool at the reactor site. For many years, it was assumed that this fuel would be reprocessed; accordingly, the storage pools were designed as short-term holding facilities with limited storage capacities. As expectations for reprocessing remained unfulfilled, the spent fuel accumulated in the storage pools, creating the risk that nuclear reactors would have to be shutdown. This could occur if there were insufficient room in the pool to store spent fuel and also if there were not enough space to hold the entire fuel core when certain inspections or emergencies required unloading of the reactor. In recent years, the problem has taken on special urgency. Some 8,000 metric tons of spent nuclear fuel have already accumulated, and it is projected that by the year 2000 there will be some 72,000 metric tons of spent fuel.1 Government studies indicate that a number of reactors could be forced to shut down in the near future due to the inability to store spent fuel.2

Page 196

There is a second dimension to the problem. Even with water-pools adequate to store safely all the spent fuel produced during the working lifetime of the reactor, permanent disposal is needed because the wastes will remain radioactive for thousands of years.3 A number of long-term nuclear waste management strategies have been extensively examined. These range from sinking the wastes in stable deep seabeds, to placing the wastes beneath ice sheets in Greenland and Antarctica, to ejecting the...

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1 books & journal articles
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