3 ELR 20801 | Environmental Law Reporter | copyright © 1973 | All rights reserved

Nader v. Ray

No. 1058-73 (D.D.C. June 28, 1973)

The court dismisses for lack of jurisdiction an action seeking declaratory and injunctive relief against the operation of twenty nuclear power plants with allegedly ineffective emergency core cooling systems as a breach of the AEC's obligation under the Atomic Energy Act to protect the public health and safety. The AEC has primary jurisdiction over such questions, and the plaintiffs have failed to exhaust or even employ their administrative remedies, and thus no record for review exists. In any case, the statute provides that the review of AEC action lies solely in the U.S. Court of Appeals. In addition, plaintiffs have failed to show a likelihood of success on the merits since the essential legal test under the statute is that of "reasonable assurance of adequate protection to the public health and safety" and not, as plaintiffs contend, one of a "definitive finding of safety" or that the equipment used be "completely safe."

Counsel for Plaintiffs
Myron Cherry
1712 N Street, N.W.
Washington, D.C. 20036

Counsel for Defendants
Arnold T. Aikens U.S. Attorney
U.S. Courthouse
Washington, D.C. 20530

John J. Adams
Hunton, Williams, Gay & Gibson
320 Federal Bar Building
1819 H Street, N.W.
Washington, D.C. 20006

George F. Trowbridge
Shaw, Pittman, Potts, Trowbridge & Madden
910 17th Street, N.W.
Washington, D.C. 20006

William R. Perlik
Wilmer, Cutler & Pickering
900 17th Street, N.W.
Washington, D.C. 20006

John B. Denniston
Covington & Burling
888 16th Street
Washington, D.C. 20006

[3 ELR 20801]

Pratt, J.

As a judgment decision as to what constitutes reasonable assurance of safety at any given time, the Commission must necessarily exercise the discretion imposed on it under the statute. It is our opinion that it has and is properly exercising its discretion, that we have no power to substitute our judgment for that of the Commission, and that on the record before us we can make no finding that the Commission is not living up to its heavy responsibilities to promote the peaceful use of atomic energy to the maximum extent "consistent with the health and safety of the public."

For this reason, we cannot find that the plaintiffs have shown sufficient grounds warranting the exercise of the Court's power to grant the extraordinary injunctive relief requested. The plaintiffs do not meet the criteria of Virginia Petroleum Jobbers, 104 U.S. App. D.C. 110, or Perry v. Perry, or A Quaker Action Group v. Hickel, both recent cases in our Court of Appeals.

Without considering each of said criteria, it is clear to us that the plaintiffs have not made a strong showing of likelihood of success on the merits. Accordingly, we deny the plaintiffs' motion for a preliminary injunction.

In addition to opposing the plaintiffs' motion for a preliminary injunction, all defendants have filed motions to dismiss. They rely chiefly on the plaintiffs' alleged failure to exhaust their administrative remedies and as a corollary on the doctrine of primary jurisdiction, i.e., that the initial resolution of these problems was placed by Congress within the special competence of the Commission.

The plaintiffs, it is alleged, could have petitioned to intervene in each of the twenty proceedings leading to the licensing of the twenty plants, but failed to do so. They could have petitioned to intervene at the time the Interim Acceptance Criteria were issued in June 1971, but failed to do so. They have not participated in the present Rule-making Proceedings. They could have participated but have not done so. It still may be possible for them to intervene, even though the safety phase of the proceeding was concluded on the 11th of December, 1972.

Most importantly, the plaintiffs could immediately petition for a rule-making proceeding challenging the effectiveness of ECCS, but up to now have not done so.

In short, the Court is entirely bereft of anything approaching an adequate administrative record upon which we can act. Certainly the reasons for the exhaustion rule apply to the facts of this case with special force. The specialized and complex problems of safety arising out of the operation of the nuclear power reactors should initially be presented to and solved by the agency having jurisdiction and special competence, not by this Court,

Furthermore, the statute expressly provides that the review of AEC action lies solely in the United States Court of Appeals. So the plaintiffs are not foreclosed by adverse action on the part of the Commission in connection with any actions that conceivably they might take. However, consideration by the appellate court will be centered on an administrative record made by the plaintiffs before the Commission, and any decision or order of the Commission to be sustained must be supported by substantial evidence.

Here we do not have anything that can be properly designated as an administrative record or even an order or a decision of the Commission which we can measure in the light of such record. On the basis of the foregoing, we can only conclude that this action must be dismissed for want of jurisdiction.

Since the motions to dismiss contained affidavits which were not a part of the record but which were considered, the motions to dismiss will be treated under Rule 12(b)(6) of the Federal Rules of Civil Procedure as motions for summary judgment.


* * *

Gentlemen, since the lunch hour when we adjourned, I have written a brief memorandum which sets forth my ruling and the [3 ELR 20802] reasons for it. It is necessarily somewhat a broad brush, but I think it speaks for itself.

Plaintiffs on May 31st filed an action against the defendant, Atomic Energy Commission, for declaratory and injunctive relief.More specifically the plaintiffs seek a declaration that the continued operation of some twenty nuclear power plants is illegal under the Atomic Energy Act and the Commission's rules and regulations for the alleged reason that such operation represents, as a matter of law, a breach of the Atomic Energy Commission's obligation to protect the public health and safety.

Plaintiffs also seek an injunction against said operation until the Commission complies with its obligations under the law and regulations.

The General Electric Company and some nineteen utilities have been permitted to intervene under the provisions of Rule 24.

On June 15th, the plaintiffs filed a motion for a preliminary injunction; and the original defendant, Atomic Energy Commission, and the intervenors have responded with oppositions to the motion for injunctive relief and with motions to dismiss.

Argument, of course, was heard at some length today. The thrust of the plaintiffs' position may be briefly summarized: the defendant, Atomic Energy Commission, is required to make a "definitive finding of safety" before these nuclear power plants can be licensed for operation; that compliance with Interim Acceptance Criteria of June 1971 setting forth performance standard for Emergency Core Cooling Systems does not represent a "definitive finding of safety"; that this fact is shown by selected excerpts from the testimony of certain experts who recently have testified in an on-going Rule-making Proceeding before the Commission concerning the effectiveness of Emergency Core Cooling Systems; and that therefore the Atomic Energy Commission is breaching its duty under the statute and regulations and is properly enjoinable.

We are satisfied from reading the statute and the Supreme Court's Power Reactor decision, 367 U.S. 396, that the essential legal test under the statute is that of "reasonable assurance of adequate protection to the public health and safety" and not one of a "definitive finding of safety" or that the equipment used be "completely safe."

Certainly the state of the art is reflected by the on-going Rule-making Proceeding is constantly changing, and what constitutes "reasonable assurance of adequate protection" at any given time must represent the judgment of the Commission based on such factors as the state of the art, the risk of accident, the record of past performance and other considerations. The results of the present Rule-making Proceeding making use of new developments is an exercise by the Commission of its duty to keep abreast of all developments and improvements in the fields of safety and other fields, and the results of this proceedings may well change the present requirements.

3 ELR 20801 | Environmental Law Reporter | copyright © 1973 | All rights reserved