California Need Not Go Nuclear: The Supreme Court Holds That California's Moratorium on New Nuclear Plants Is Not Preempted by Federal Law

A. Dan Tarlock

Editors' Summary: In the 1982 Term, the Supreme Court decided three cases involving the nuclear power industry. In the first and third cases, the Court continued its pattern of deference to the Nuclear Regulatory Commission (NRC) and nuclear energy. But to the surprise of many observers, in the second case, Pacific Gas & Electric Co. v. State Energy Conservation and Development Commission, the Court unanimously held that the Atomic Energy Act (AEA) does not preempt a California statute imposing a moratorium on new nuclear plant construction until the federal government approves a technology for disposing of nuclear wastes. Although approving the ultimate ruling, Professor Tarlock criticizes the Court for its failure to provide useful guidance on the law of preemption. The Court found that the state law was founded on economic and not safety concerns and was therefore not preempted by the AEA, which vests exclusive control over nuclear safety with the NRC. Because of the Court's distinction, Professor Tarlock points out, the question of preemption turns on fictitious legislative drafting leaving open the possibility that other states' statutes may not fare so well. However, he concludes that the Court was justified in defining the conflict between federal and state regulation narrowly and refusing to continue to defer blindly to the agency.

Mr. Tarlock teaches law at Chicago Kent College of Law in the Illinois Institute of Technology. He is a coauthor of a forthcoming environmental law casebook with Professor Frederick R. Anderson of the University of Utah, and former president of ELI, and Professor Daniel R. Mandelker of Washington University.

[13 ELR 10216]

Electricity generated by nuclear power was once thought to be the principal peacetime legacy of World War II. In 1946 Congress resolved the debate between civilian and military control of atomic energy in favor of civilian control exercised through the Atomic Energy Commission (AEC). Both the Commission and the unique and powerful Congressional Joint Committee on Atomic Energy aggressively promoted nonmilitary applications, although the electric utility industry was initially somewhat worried about the costs of going nuclear.¹ To induce utility commitments to nuclear power, Congress passed the Atomic Energy Act (AEA) of 1954 which created a licensing system for private reactors. The last obstacle to public utility development was removed in 1957 with the passage of the Price-Anderson liability limitation act.² The actions of the 1950s ushered in the decade of nuclear optimism of the 1960s. In 1962 the AEC confidently estimated that nuclear power would constitute one-half of the nation's electric generating capacity by the magical year 2000 and further would satisfy future increments in demand.³ Today, the nuclear dream is no longer widely shared by large segments of the general public and technical experts.

Because of the highly technical nature of nuclear power and the secrecy surrounding its wartime development, the legal system initially played a minimal role in assessing the costs of this technology. The law did play its traditional role in defining property rights to raw uranium, but the regulatory laws were largely written by scientists and the role of the AEC was understood by few.⁴ The laws were premised on the assumption that the technology was safe, although little was known about it. As a result [13 ELR 10217] of this presumption, the Supreme Court did not critically assess the work of the AEC when opportunities arose. In early litigation questioning the AEC's safety judgments, a few circuit courts of appeals ruled against the Commission, but the Supreme Court has consistently supported the development of nuclear power. The Court has deferred to agency expertise on safety judgments,⁵ held that state regulation of radiation emissions from plants was preempted,⁶ refused to require procedures for Commission rulemaking on safety issues beyond those imposed by the Administrative Procedure Act,⁷ and upheld the constitutionality of the Price-Anderson Act in a most unprincipled opinion written by Chief Justice Burger.⁸

As a result of "unscheduled incidents" and general public concern, if not fear, about the safety of present technologies, nuclear litigation continues to grow. In the last term the Supreme Court considered three important nuclear cases. The first and third cases reviewed decisions of the Nuclear Regulatory Commission (NRC), and the second case considered whether state regulation of the back end of the fuel cycle was preempted by federal law.

The first case grew out of the accident at the Three Mile Island nuclear power plant in Pennsylvania. In Metropolitan Edison Co. v. People Against Nuclear Energy,⁹ the Court considered whether the National Environmental Policy Act (NEPA) required the NRC, successor to the AEC, to consider "the severe psychological health damage to persons living in the vicinity" of the plant that might result when the NRC authorizes the utility to restart the undamaged Unit 1 reactor at Three Mile Island, shut down by coincidence for routine refueling when Unit 2 was damaged. The Court decided that the NRC did not have to consider psychological health damage because NEPA was limited to direct impacts on the physical environment.¹⁰ In the third case, Baltimore Gas & Electric Co. v. Natural Resources Defense Council,¹¹ the Court held that the NRC complied with NEPA by adopting a generic rule that admits that there is uncertainty over the environmental impacts of the back end of the fuel cycle, but assumes that there will be no adverse impacts because all wastes will be safely stored in a federal repository. Thus, the Commission does not have to perform a NEPA balancing of possible back end impacts in individual licensing proceedings. In the first and third nuclear decisions of the term, the Court continued its pattern of deference to the Commission. However, the second case, which stemmed from California's effort to ban the construction of new nuclear plants until an acceptable high level nuclear disposal solution was found, surprised many observers. The Court unanimously held that the AEA did not preempt California's moratorium legislation.¹²

Pacific Gas & Electric Co. v. State Energy Conservation and Development Commission is both a milestone for the regulation of nuclear energy and for the law of federalism in environmental regulation and natural resources development. Questions about the safety of nuclear energy have been, since its inception, subordinated to its promotion,¹³ an attitude that ultimately undermined the legitimacy of the AEC. In 1974 the Commission's regulatory function was assigned to the NRC, and most of its promotional activities transferred to the Energy Research and Development Administration. However, the widespread concern that the NRC is insufficiently sensitive to safety issues has continued after the split. In response to public concern about plant safety, states have become, in recent years, more aggressive in attempting to regulate powerplant safety and the back end of the fuel cycle, despite the shadow of federal preemption. Pacific Gas & Electric opens up new state regulatory options, and effectively nullifies a long federal effort to force the nuclear option on the electric utility industry, although the Reagan administration continues to promote aggressively the "nuclear option."¹⁴ State regulatory options are not, however, unlimited. Because state public utility regulation was involved, it was easier for the Court to refuse to defer to the expertise of the Commission. However, the Court shows no signs of departing from its pattern of deference in reviewing NRC actions, and there are other constitutional doctrines that bar state regulation of nuclear energy. At the same time that Pacific Gas & Electric was decided, the Court let stand an opinion written by Judge Richard Posner of the Seventh Circuit concluding that an Illinois law banning the importation of high level nuclear wastes for reprocessing in the state violated the Commerce Clause as well as being preempted by the AEA.¹⁵ And soon after Pacific Gas & Electric, the Court reversed, in Baltimore Gas & Electric, a D.C. Circuit decision invalidating an NRC rule premised on the assumption that there will be no discharge of irradiated effluents during long-term storage of high level nuclear wastes.¹⁶

Pacific Gas & Electric also seems to consolidate the Burger court's somewhat erratic shift back to a state-centered theory of preemption in contrast to the national-centered theory begun in 1941 and carried forward by the [13 ELR 10218] Warren Court.¹⁷ As a matter of judicial craftsmanship, Justice White's opinion for a unanimous court leaves much to be desired because it does nothing to clarify the Court's standard for determining if state law is preempted. Still, the result reached by the Court and Justice Blackmun's concurring opinion, based largely on Professor Lawrence Tribe's arguments for California, points the way to a law of federal preemption that permits concurrent federal-state regulation in areas such as environmental protection, energy policy, and national resources development where no clear federal policy has in fact been formulated.

The Back End of the Fuel Cycle and California's Response to the Problem

The root of the problem in Pacific Gas & Electric lies in the limited attention historically given by the federal government to management of the back end of the fuel cycle. Initially, nuclear promoters assumed that technology would provide a bailout for disposal problems. Nuclear waste is conventionally divided into three categories: (1) low-level, contaminated wastes, (2) unreprocessed spent fuel, and (3) high-level wastes from reprocessing activities. Until 1974, it was assumed that all reactor fuel would be chemically reprocessed. Both the separated plutonium and possibly the recovered uranium would be recycled as fresh reactor fuel. Thus, no technology was developed for the long-term storage or disposal of spent fuel. Instead, spent fuel was simply stored on-site as an interim measure. Although a chemical process for reprocessing spent reactor fuel was understood, there were no full-scale commercial plants in operation in 1974 because the process could not be adapted for commercial operation. In 1974 reprocessing was indefinitely deferred because of fears that commercial reprocessing could become a source of commercial weapons-grade plutonium or enriched-uranium.

Because of fears of nuclear weapons proliferation, the United States was forced to switch from an ideal technological solution to a much less ideal one with substantial institutional problems. The policy was quite simply storage and domestic land disposal. High-level nuclear wastes had to be transported long distances to be dumped somewhere. Federal regulations required that high level wastes be solidified within five years of reprocessing and delivered to a federal repository within ten years after reprocessing. However, there was little reason to have confidence in a federal solution to waste disposal. A study written in 1979 concluded that

no back end facilities of any type are generally available. The lack of adequate spent fuel storage or chemical reprocessing capacity to handle even present discharges has resulted in the accumulation of spent fuel at on-site reactor holding pools originally designed to serve as an interim buffer pending off-site shipment. Even if reprocessing capacity were available, there is not now in existence a single permanent repository for the high level wastes that would be produced, nor a generally accepted set of procedures and criteria for conversion of these wastes to solid or their emplacement in a permanent repository.¹⁸

In 1976 California reacted to the inadequate federal regulation of the back end of the fuel cycle by passing three amendments to the state's general power plant siting statute, the Warren-Alquist Act.¹⁹ Collectively, the amendments seek to shift the burden of proving the safety of nuclear waste management options to the federal government. They were enacted just before a vote on a costly and controversial initiative and referendum that would have barred the construction of new nuclear plants unless a permanent method of waste disposal was found. The amendments to the Warren-Alquist Act were intended to blunt the popular appeal of Proposition 15, the California Nuclear Initiative, by imposing more moderate fuel management regulations than those that would have been imposed by the initiative.²⁰ The amendments would not have become operative had the initiative passed, but the amendments were not divested as the California voters rejected Proposition 15 in June of 1976.

The first amendment, CAL. PUB. RES. CODE § 25524.1, prohibits the siting of new nuclear plants that require their fuel rods to be reprocessed unless the California Energy Resources Conservation and Development Commission finds that the federal government has identified and approved the technology for reprocessing for the spent fuel generated by the plant. The second amendment, § 25524.2, prohibits the siting of all new nuclear plants until the state commission determines that the federal government has identified and approved a demonstrated technology for the disposal of the high-level nuclear wastes. This finding must be reported to the legislature which has 100 legislative days to nullify it. A disappointed utility gets a second chance because if the Commission re-adheres to its finding, this decision must be again submitted to the legislature which has another 100 legislative days to reject it. The final amendment, § 22524.3, provides that new nuclear plants are not authorized land uses in California until the Commission has completed a study of the desirability and economic feasibility of berm-containment and putting all new plants underground.

The Opinion: California Saved by a Fiction

Procedural Hurdles

Before reaching the merits of the preemption issue, the Court had to decide which, if any, of the three amendments were ripe for judicial review. California obviously feared an adverse preemption holding, and argued that none of the amendments were ripe for review because the Commission had taken no final agency action that adversely affected a utility. The state was successful with this argument on the first amendment, § 25524.1, but the Court found that the second, § 25524.2, was ripe for review.

Section 25524.2 was found ripe under the two prong test of Abbott Laboratories v. Gardner.²¹ Under Abbott [13 ELR 10219] Laboratories ripeness turns on "the fitness of the issues for judicial decision" and "the hardship to the parties" of withholding judicial review.California had not announced what would constitute a demonstrated technology or means for the disposal of high-level nuclear waste, but the Court still found the issue ripe because it "is predominately legal and … resolution need not await that development."²² When the issue is a question of law, the most relevant factor in the ripeness determination is the hardship to the regulated community from postponed judicial review. The utilities were easily able to show that the long lead time to site and permit a nuclear plant requires costly advance planning and thus they are entitled to know as a matter of law whether such planning will produce an on-line facility.

Section § 25524.1 was not ripe. Not only had no case-by-case determination been made, but Justice White found that in light of the holding that § 25524.2 was not preempted, "there is little likelihood that industry behavior would be uniquely affected by whatever uncertainty surrounds the interim storage provisions."²³ Neither or the major two California utilities that brought suit could show imminent irreparable injury because neither had filed a notice of intention or had an application for construction pending before the NRC.

The Law of Preemption

In addition to reaching a result, a Supreme Court opinion should provide some general guidance for future cases. General guidance would be especially welcome in the preemption area because the Court's doctrine has swung between theories of nation-centered and state-centered preemption. State law is preempted if it significantly impedes the operation of a federal law but this standard is a function of the Court's view of the degree of concurrent regulation that the federal system can tolerate and the merits of judicial versus political resolution of the conflict. Those seeking guidance on the law of preemption from Justice's White's opinion will find none. He was content to mix random statements from both nation- and state-centered period cases. This is all that he had to say on the general standards for preemption:

Absent explicit preemptive language, Congress' intent to supercede state law altogether may be found from a "scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room to supplement it," "because the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject," or because "the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose." Fidelity Federal Savings & Loan Ass'n v. de la Cuesta, __ U.S. __, __ (1982); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Even where Congress has not entirely displaced state regulation in a specific area, state law is preempted to the extent that it actually conflicts with federal law. Such a conflict arises when "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963), or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67 (1941)²⁴

The Merits

The utilities, joined by the United States and supporting friends argued that California's moratorium was preempted because (1) it regulates the safety of nuclear plants and Congress has assigned this function exclusively to the NRC through the AEA, (2) the waste disposal policy of § 25524.2 is inconsistent with NRC regulations and the Nuclear Waste Policy Act of 1982,²⁵ and (3) it frustrates the federal government's policy of promoting nuclear power as a major source of energy.

The argument that reactor and plant safety has been exclusively delegated to the NRC was the utility's strongest. To counter this, California relied on a strategy outlined by its attorney, Professor Lawrence Tribe of Harvard Law School, in a 1979 law review article.²⁶ To avoid the highly probable conclusion that direct safety regulation was preempted, Professor Tribe argued that states retain the authority to regulate the economic aspects of nuclear power incident to traditional state regulation of public utilities. The Court agreed.

To sustain § 24424.2, Justice White's opinion for the Court drew a distinction between the roles of the state and federal government in regulating nuclear power and concluded:

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; the states exercise their traditional authority over the need for additional generating capacity, the type of generating facilities to be licensed, land use, ratemaking, and the like.²⁷

NRC regulations require the agency to inquire into a license applicant's financial qualifications only if they are related to public health and safety, and the Court found that any doubts about the preservation of "traditional" state areas of concern were removed by § 271 of the Atomic Energy Act. This section provides that "[n]othing in this chapter shall be construed to affect the authority of or regulations of any Federal, State or local [13 ELR 10220] agency with respect to the generation, sale or transmission of electric power produced through the use of nuclear facilities licensed by the Commission…."²⁸ The utilities unsuccessfully argued that a 1965 amendment to § 271 extended federal preemption to economic aspects. The 1965 amendment provides that "this section shall not be deemed to confer upon any Federal, State or local agency any authority to regulate, control, or restrict any activities of the Commission."²⁹ The Court limited this amendment to its original purpose, to prohibit state control of the AEC's own activities.

The Court then had to determine whether California's law exceeded its authority. Professor Tribe's assumption that the Court would find safety regulation preempted was well-founded. Justice White concluded that state regulation of safety aspects of energy generation was preempted because the federal government had occupied the field. Furthermore, state regulation would conflict with the NRC's judgment that the construction of nuclear plants could proceed in the face of uncertainty about disposal and would conflict with the federal government's effort to promote nuclear development through uniform safety standards.

The hard problem is to distinguish economic from safety regulations. The issue is especially difficult since there is in reality no distinction. Professor Tribe accurately characterized the purpose of § 25524.2 as a guarantee "that its citizens need not bear the psychic and economic costs of having to manage high-level waste with no assurance"³⁰ of a safe method of permanent disposal. California first tried to present the Court with a theory that would not require them to make the distinction, but only the two concurring justices accepted the state's argument that a state may prohibit the construction of new plants until the federal government satisfies safety concerns. Instead, Justice White stitched together random quotations from well-crafted state legislative history and combined them with the self-imposed judicial limitation on inquiry into legislative motives to indulge in the fiction that § 25524.2 was "aimed at economic problems, not radiation hazards."

The Pacific Gas & Electric's Co.'s second argument was that NRC regulations that specify the general design criteria and control requirements for fuel storage and the handling of radioactive wastes to be stored at the reactor site combined with the Nuclear Waste Policy Act of 1982 created a conflict between federal and state policy. Relying again on the distinction between safety and economic regulation, the Court found no conflict between compliance with NRC regulations and § 24424.2:

Because the NRC order does not and could not compel a utility to develop a nuclear plant, compliance with both it and § 25524.2 are 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 the federal regulation.³¹

The Nuclear Waste Policy Act presented a harder problem, because for the first time it announces a congressional waste disposal policy. The Court, however, found an easy out in the legislative history of the Act. The Senate passed an amendment that would have preempted state law, but the House deleted the Senate language so as not to affect this case, in the words of Representative Ottinger, "to insure that there be no preemption."³² More interesting is Justice White's suggestion that "it is certainly possible to interpret the Act as directed at solving the nuclear waste disposal problem for existing reactors without necessarily encouraging or requiring that future plant construction be undertaken."³³

The utilities' third argument was the most far-reaching and central to the continued development of nuclear energy against hostile state efforts. Put simply, they argued that federal policy mandated the development of nuclear power, and thus California's moratorium frustrated the achievement of this objective. The opinion of the Court went most of the way with the utilities, but in the end rejected the argument for the same reasons that the other two preemption arguments were dismissed. Justice White first reiterated the Court's traditional promotional attitude toward nuclear power. He found "little doubt that a primary purpose of the Atomic Energy Act was, and continues to be, the promotion of nuclear power,"³⁴ and dismissed as "unconvincing," the Ninth Circuit's suggestion that the 1974 separation of the regulatory from the promotional activities of the AEC altered Congressional policy. However, in the end, he agreed with the court of appeals "that the promotion of nuclear power is not to be accomplished 'at all costs.'"³⁵ Thus, state economic regulation was not preempted and any change in the pattern of concurrent regulation should come from Congress.

The rejection of the utilities' last argument is an important recognition of the states' right of self-defense against new and unforeseen, although limited, environmental hazards. Pacific Gas & Electric is especially significant in light of the Court's subsequent decision in Baltimore Gas & Electric that the NRC can continue to issue plant licenses in the face of uncertainty over the feasibility of high-level waste disposal options.³⁶ Justice Blackmun's concurring opinion also takes on added significance because it sets out a more lucid theory of the relationship between state safety regulation in the context of a confused and evolving federal policy. However, read narrowly, the opinion of the Court makes the question of whether state nuclear regulation is preempted by federal law turn on careful and fictitious legislative drafting. The Court's reliance on the distinction between economic and safety regulation gives states a draftsman's roadmap. But, the possibility remains open that the Court will not accept at face value state declarations that the purpose of [13 ELR 10221] the regulation is economic rather than safety. For example, state incantations of safety are no longer accepted as a basis for immunity from a negative commerce clause inquiry.³⁷ Thus, state nuclear safety legislation is still at risk after Pacific Gas & Electric, and the question is should state regulation depend on such a transparent and uncertain fiction?

Justices Blackmun and Stevens concurring correctly, in my opinion, answered this question no. They would sustain state safety as well as economic regulation so long as there is no strong evidence of Congressional intent to preempt and current federal regulation is incomplete. They found each of Justice White's reasons for concluding that safety regulation was preempted unpersuasive. First, they found that Congress had not occupied the whole field of safety concerns, "but only the narrower area of how a nuclear plant should be constructed and operated to protect against radiation hazards."³⁸ Second, they found no conflict between an NRC and state safety judgment because Congress had not mandated the states to proceed with a nuclear plant. Third, the concurring opinion read recent nuclear legislation and related legislation such as the Energy Reorganization Act of 1974³⁹ and § 122 of the Clean Air Act⁴⁰ as softening Congress' earlier confidence in the nuclear dream. Rather than promoting nuclear power, "Congress has merely encouraged the development of nuclear technology so as to make another source of energy available to the States; Congress has not enforced the States to accept this particular source …. In sum, Congress has not required States to 'go nuclear.'"⁴¹

Justice Blackmun's opinion seems more consonant with the theories of preemption and federalism developed by the Burger Court. It starts from the assumption that states have a right to protect themselves from new hazards unless the federal government can carry a heavy burden that Congress has occupied the field, leaving aside questions of direct conflicts between federal and state law. This presumption carries forward the theory of the fragmentation of power implicit in principles of federalism. Judicial deference to state regulatory authority is particularly appropriate in cases such as Pacific Gas & Electric because the underlyingissue is a high visibility political question and the federal government has reached no clear consensus on what federal policy should be. The concurring opinion also responds silently to the failure of the NRC to convince the public of its legitimacy. Other Supreme Court cases continue to defer blindly to agency expertise in this area, but the era of widespread public acceptance of administrative expertise, if it ever existed, has died. When federal policy both in Congress and in the administrative agences is confused and evolving, the Court is justified in defining conflict between federal and state policy narrowly and refusing to indulge in a presumption of federal occupation of the field. A law of preemption that displays a high level of tolerance for concurrent regulation allows states to fill federal regulatory gaps and forces Congress to assume its proper role in deciding whether the balance of federal and state regulatory authority frustrates overriding national objectives.

1. Barber, The Eisenhower Energy Policy: Reluctant Intervention in ENERGY POLICY IN PERSPECTIVE 205, 274-275 (C. Goodwin ed. 1981).

2. 42 U.S.C. § 2210, ELR STAT. 41233-35.

3. Barber, Studied Inaction in the Kennedy Years in ENERGY POLICY IN PERSPECTIVE 287, 328 (C. Goodwin ed. 1981).

4. Maleson, The Historical Roots of the Legal System's Response to Nuclear Power, 55 U.S.C.L. REV. 597, 601 (1982).

5. Power Reactor Dev. Co. v. Int'l Union of Elec., Radio & Mach. Workers, 367 U.S. 396 (1961); Porter County Chapter of the Izaak Walton League of America, Inc. v. AEC, 515 F.2d 513, 5 ELR 20274 (7th Cir. 1975), rev'd sub nom. Northern Indiana Public Service Co. v. Porter County Chapter of the Izaak Walton League of America, Inc., 423 U.S. 12, 6 ELR 20040 (1975) (per curiam).

6. Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1 ELR 20451 (8th Cir. 1971), aff'd, 405 U.S. 1035 (1972).

7. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 8 ELR 20288 (1978), rev'g natural Resources Defense Council, Inc. v. NRC, 547 F.2d 633, 6 ELR 20615 (D.C. Cir. 1976) and Aeschliman v. NRC, 547 F.2d 622, 6 ELR 20599 (D.C. Cir. 1976).

8. Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 8 ELR 20545 (1978), rev'g Carolina Envtl. Study Group v. AEC, 431 F. Supp. 203, 7 ELR 20315 (W.D.N.C. 1977).

9. 13 ELR 20515 (U.S. Apr. 19, 1983).

10. For an analysis of the case, see Dougherty, The Application of NEPA to Agency Actions Affecting Human Health, 13 ELR 10169 (June 1983).

11. 13 ELR 20544 (U.S. June 6, 1983).

12. Pacific Gas & Elec. Co. v. State Energy Conservation & Dev. Comm'n, 13 ELR 20519 (U.S. Apr. 20, 1983).

13. See, e.g., D. FORD, THE CULT OF THE ATOM: THE SECRET PAPERS OF THE ATOMIC ENERGY COMMISSION (1982).

14. Congress has recently begun hearings into charges that "the Government and the electric power industry are engaging in separate but overlapping campaigns to persuade the American people that nuclear energy is economical and safe." N.Y. Times, May 23, 1983, § 1 at 1, col. 1.

15. Illinois v. General Elec. Co., 683 F.2d 206, 12 ELR 20793 (7th Cir. 1982), cert. denied, 51 U.S.L.W. 3789 (U.S. May 2, 1983) (No. 82-648).

16. Baltimore Gas & Elec., 13 ELR 20544 (U.S. June 6, 1983).

17. See note, Shifting Perspectives on Federalism and the Burger Court, 75 COLUM. L. REV. 623 (1975).

18. G. ROCHLIN, PLUTONIUM, POWER, AND POLITICS 68 (1979).

19. CAL. PUB. RES. CODE §§ 25000-25968.

20. Tribe, California Declines the Nuclear Gamble: Is Such a State Choice Preempted?, 7 ECOLOGY L.Q. 679 (1979).

21. 387 U.S. 136 (1967). Abbott Laboratories capped a series of Supreme Court cases that changed ripeness from a simple final order rule to a flexible rule that allows pre-enforcement review of laws and regulations when the legal issues have sufficiently crystallized and there are no countervailing considerations in quick enforcement of the law.

22. Pacific Gas & Elec., 13 ELR at 20521.

23. 13 ELR at 20522.

24. 13 ELR at 20522.

25. Pub. L. No. 97-425, 96 Stat. 2201, 42 U.S.C. § 10101 et seq. (1982). During the litigation Congress enacted the Nuclear Waste Disposal Act, which the utilities unsuccessfully tried to use to bolster their preemption arguments, to create a process to implement the high-level waste disposal policy that the government had in fact adopted. The objective of the Act is to provide for nuclear waste disposal sites licensed by the NRC for nuclear wastes generated by both commercial and defense activities. The President has the option within two years of recommending the construction of an exclusive defense repository if necessary. Otherwise civilian and defense programs must be consolidated. The heart of the program is a game of site elimination administered by the Department of Energy. By January 1, 1985 the Department must nominate five potential sites for the first repository, and by July 1, 1989, it must nominate five sites, three of which must be new, for a second repository. The President must recommend the first disposal site by March 31, 1987 and the second by March 31, 1990.

26. See Tribe, supra note 20.

27. 13 ELR at 20524.

28. 42 U.S.C. § 2018, ELR STAT. 41206.

29. The amendment was the resolution of one of the early, and now forgotten, environmental battles. Palo Alto, California tried to require that the transmission lines leading to the Stanford Linear Accelerator be placed underground, but Congress reversed a Ninth Circuit opinion upholding the city's authority.

30. Tribe, supra note 20, at 708.

31. 13 ELR at 20526.

32. 128 CONG. REC. H8797 (daily ed. Dec. 2, 1982). See Nuclear Waste Disposal Policy: Hearings Before the Subcomm. on Energy and Commerce, 97th Cong., 2d Sess. (1982).

33. 13 ELR at 20526.

34. 13 ELR at 20526 (emphasis added). Justice White found that evidence of a congressional shift of purpose was rebutted by the extension of the Price-Anderson Act until 1987. Pub. L. No. 94-197, 89 Stat 1111, 42 U.S.C. § 2014 et seq. (1982).

35. 13 ELR at 20527.

36. Baltimore Gas & Elec., 13 ELR 20544 (U.S. June 6, 1983).

37. Raymond Motor Transportation Co. v. Rice, 434 U.S. 429 (1978).

38. Pacific Gas & Elec., 13 ELR at 20527. See Wiggins, Federalism Balancing and the Burger Court: California's Nuclear Law as a Preemption Case Study, 13 U.C.D.L. REV. 3 (1979), for a further elaboration of Justice Blackmun's argument.

39. 42 U.S.C. §§ 5801 et seq.

40. 42 U.S.C. § 7422, ELR STAT. 42228.

41. 13 ELR at 20528-29.