ELR Citation: ELR 20511
No(s). CV-83-4966 (E.D.N.Y. Mar 18, 1985)

The court holds that a country may refuse to participate in off-site emergency evacuation planning for a proposed nuclear power plant without violating the Supremacy Clause or the due process or equal protection rights of the nuclear license applicant. The court preliminarily decides to address intervenor utility company's (LILCO's) pleading in this opinion despite defendants' challenge to plaintiff's standing, for reasons of judicial economy. The court rejects defendants' challenge to its jurisdiction. Though the Atomic Energy Act (AEA) does not provide for private enforcement of its terms, this case "arises under" the AEA because plaintiffs' right to relief depends upon the construction of that act. Further, the intervenor's claims under the Civil Rights Act (§1983) are not so frivolous as to warrant dismissal for lack of jurisdiction.

The court proceeds to consider defendants' challenges to plaintiffs' and intervenor-school-district's standing, while noting that it would get to the merits regardless because defendants have not challenged LILCO's standing. The citizens' group plaintiff is not entitled to standing on the basis of its members being taxpayers, ratepayers of the utility, or shareholders of the utility. It is, however, entitled to standing based on its members' residency in the area and its allegations that failure to build the nuclear plant will necessitate construction of a conventional plant with concomitant environmental damage. The court holds that the school district has standing as a utilizer of tax revenues that would be generated by the proposed plant. Finally, the court holds that both the environmental interests of the citizens' group and the economic interests of the school district are within the zone of interests of the AEA.

The court rules that the county's refusal to adopt an emergency plan does not violate the Supremancy Clause by attempting to regulate a preempted area. The county's refusal to act has not in fact resulted in regulation of nuclear power. The court recognizes that the federal government has occupied the entire field of nuclear power safety. Nevertheless, the County has not enacted positive regulation, but only refused to act in a given area. The argument that mere refusal to adopt an emergency plan constitutes an attempt to regulate in a preempted field, given the County's health and safety motive for opposing nuclear power plant construction within its borders, is defeated by an examination of congressional intent. The Senate was clearly aware of the possibility that a locality might refuse to prepare an emergency plan and reacted not by requiring local government participation but by providing for utilities to prepare their own plans.

Finally, the court addresses LILCO's §1983 claims. Though it is not contested that the actions complained of were committed under color of state law, the County's conduct has not deprived LILCO of rights or privileges secured by federal laws or the Constitution. First, LILCO's right to seek a license under the AEA has not been taken away from it. Only the Nuclear Regulatory Commission (NRC) has the power to decide whether LILCO gets its license. At any rate, a §1983 claim may not be based on an alleged violation of the AEA, which, like the Federal Water Pollution Control Act, is comprehensive legislation that does not provide for a private cause of action. Second, no property right has been taken from LILCO.Again, only the NRC can decide whether LILCO gets its license. LILCO's expectation that the County would support its application does not constitute a property right, even if LILCO did back that expectation with investment. Third, LILCO has not been denied a protected liberty interest without due process of law. LILCO's liberty to produce nuclear power has not and cannot be denied by the County; the process due LILCO must come from the NRC. Mere interference in a licensing process by a governmental entity may in some circumstances violate a constitutionally protected liberty interest. Nevertheless, LILCO is not a member of a suspect class, and the County meets the therefore applicable rational basis standard. Finally, LILCO was not denied equal protection under law through the County's denial of services to it. The County meets the rational basis test on this claim also.

Counsel for Plaintiff
Lucinda Low Swartz
Pacific Legal Foundation
1990 M St. NW, Washington DC 20036
(202) 466-2686

Counsel for Plaintiff-Intervenor
Lou Lewis
50 Market St., Poughkeepsie NY 12601
(914) 454-1200

Counsel for Defendant
David A. Brownlee, Michael L. Lynch, Kenneth M. Argentieri
Kirkpatrick, Lockhart, Johnson & Hutchison
1500 Oliver Bldg., Pittsburgh PA 15222
(412) 355-6500

Herbert H. Brown, Lawrence C. Lanpher
Kirkpatrick, Lockhart, Hill, Christopher & Phillips
1900 M St. NW, Washington DC 20036
(202) 452-7000