Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission

& et al. PACIFIC GAS ELECTRIC CO. STATE ENERGY RESOURCES AND CONSERVATION

DEVELOPMENT COMMISSION et al. Argued January 17, April No. 81-1945. 1983 Decided J., Burger, C. Court, in which opinion White, J., delivered JJ., O’Connor, Rehnquist, and Powell, Marshall, Brennan, and concurring and concurring in part opinion an Blackmun, J., filed joined. 223. J., joined, post, p. Stevens, judgment, which in the petitioners. for cause argued McDonough R. John Soloway. B. Howard was the briefs on him With for cause argued Claiborne General Solicitor Deputy With reversal. urging curiae as amicus United States Attor- Assistant Lee, General Solicitor were brief on the him Schaitman, Leonard Garvey, H. McGrath, John General ney Daniel, Jr. Al J. and respondents.. cause for argued H. Tribe

Laurence M. Cham Beers, William Roger were the brief him With Cavanagh.* Ralph Grueneich, and Dian berlain, M. by Leonard filed were reversal urging curiae of amici *Briefs Industrial Hodge for the L. Linda Fidell, and Eugene R. Trosten, al.; et Bethe A. Wanat for Hans W. Susan and M. Cannon John Forum; In Electric the Edison L. Baum for Jr., Robert Knotts, and B. by Joseph Crump Foundation; by David Fusion Dean for the stitute; by Max Ronald America; Foundation Legal Robinson Wilkes Kaz Momboisse, Sam M. Raymond Rivett, Zumbrun, L. Robin A. et al. Legal Foundation man Pacific Justice White delivered the opinion of the Court. turning swords into plowshares has symbolized transformation atomic into source of energy Briefs of amici curiae urging affirmance were filed for the State of Alaska et al. by Robert Abrams, Attorney General York, New Peter H. Schiff, and Ezra I. Bialik, Assistant Attorney General; Condon, Wilson L. Attorney General of Alaska, and Douglas Mertz, K. Assistant Attorney General; Robert K. Corbin, Attorney Arizona, General of and Anthony B. Ching, Solicitor General; John Steven Clark, Attorney General of Arkan- sas; Tany S. Hong, Attorney of Hawaii, General and Michael A. Lilly, First Deputy Attorney General; Robert T. Stephan, Attorney General of Kansas, Robert Vinson Eye, Assistant Attorney General, and Brian J. Moline; Guste, William J. Jr., Attorney General of Louisiana, and Ken- Vick, dall L. Assistant Attorney General; Warren Spannaus, Attorney General of Minnesota, and Jocelyn F. Olson, Special Assistant Attorney General; Bill Attain, Attorney General of Mississippi, and Mack Cameron, Special Assistant Attorney General; Mike Greely, Attorney General of Montana, and Mike McGrath, Assistant Attorney General; Richard H. Bryan, Attorney General Nevada, and Larry Struve, Chief Deputy At- torney General; William J. Broun, Attorney Ohio, General of and E. Den- nis Muchnicki, Assistant Attorney General; Jan Eric Cartwright, Attor- ney General of Oklahoma, and Sara J. Drake, Assistant Attorney General; Daniel R. McLeod, Attorney General of Carolina, South and Richard P. Wilson, Assistant Attorney General; Easton, John J. Jr., Attorney General of Vermont, and Merideth Wright, Assistant Attorney General; Chauncey H. Browning, Attorney General of West Virginia, and Robert Rodecker; R. Steven F. Freudenthal, Attorney General of Wyoming, and Walter Perry III, Senior Assistant Attorney General; for the State of by Connecticut Carl R. Ajello, Attorney General, Golden, Robert S. Jr., Assistant Attorney General, and Neil Proto, T. SpecialAssistant Attorney General; for the State of by Maine James Tierney, E. Attorney General, E. Broun, Deputy Attorney General, Rufus H. Howard, Cabanne Senior Assistant Attorney General, and Gregory Sample, W. Assistant Attorney General; for the Commonwealth of by Massachusetts X. Bellotti, Francis Attorney General, and Stephen M. Leonard, Assistant Attorney General; for the State of Illinois et al. by Gregory Smith, H. Attorney General of Hampshire, New E. Tupper Kinder, Attorney Assistant General, Tyrone C. Fahner, Attorney General Illinois, of and John Van Vranken, Anne Rapkin, Jeffrey and C. Paulson, Assistant Attorneys General; for the State of Oregon by Dave Frohnmayer, Attorney General, Stanton F. Long, Deputy Attorney General, William F. Gary, Solicitor General, Fed- development the this society. facilitate To American ma- monopoly fissionable over its relaxed Government eral place, erected its technology, in and nuclear and terials nu- development of civilian promote the complex scheme the public and safeguard the seeking to energy, while clear technol- a new of unpredictable risks the from environment con- would States that the decided Early it on, was ogy. electricity pro- regulation of in role the traditional their tinue authority interrelationship and state federal of duction. simple; federal the been energy has field nuclear the opti- frequently amended been has regulatory structure partnership. the mize Federal of intersection emerges from case This power is safe nuclear ensure efforts Government’s gen over state historic exercise provi whether electricity. issue At of sale and eration Warren-Alquist to California’s amendments sions §§25524.1(b) and 25524.2 Ann. Code Pub. Res. Cal. Act, of construction 1977), (West condition which Conserva Resources by findings the State plants on storage fa adequate Development Commission and tion waste, disposal for are available of means cilities W. Frank General, and Mountain, Jr., Solicitor Deputy E. James Washington of State General; for Attorney Jr., Assistant Ostrander, Mackie, B. Edward General, and Attorney Eikenberry, 0. by Kenneth al. et Wisconsin of the State General; for Attorney Deputy Chief Schur, M. Wisconsin, Steven of LaFollette, Attorney General C. Bronson L. Ed- General; Attorney Sinderbrand, Assistant Rufus A. Carl Attorney Ashcroft, Carolina; John North Attorney of General misten, Kentucky; of Attorney General Beshear, L. Missouri; Steven General Geoffrey W. Mexico, and New Levin, Attorney General H. Richard Maret; R. Iowa, and James Miller, Attorney General J. Sloan; Thomas the Public Pennsylvania; Attorney General Zimmerman, Leroy S. Kerr, E. Janice et al. California of the State Commission Utilities Rodgers. Paul Simpson, J. Calvin Legal Foundation England New filed a brief Alviani D. Joseph curiae. amicus as pre-empted are by the ofAct 1954, 68 Stat. seq.

919, as amended, U. S. C. 2011 et

I—I A nuclear reactor must periodically refueled and the “spent fuel” spent removed. This intensely fuel is radioac- tive and carefully must be general stored. practice is to store the fuel in a pool water-filled at the reactor site. For many years, it was assumed that this fuel reproc- would be accordingly, essed; storage pools designed were as short- holding term facilities with storage limited capacities. As expectations reprocessing remained spent unfulfilled, the fuel accumulated storage pools, creating the risk that nuclear reactors would have to be shut down. This could occur if there were insufficient pool room in the spent to store fuel and if also there enough were space to hold the entire fuel core inspections when certain emergencies or required unloading of the reactor. In years, problem recent has special taken on. urgency. Some 8,000 spent metric tons of already fuel have projected accumulated, and it is year 2000there will be some 72,000metric tons of spent fuel.1 Government studies indicate that a number of reactors could be forced to shut down in the near future due inability spent to store fuel.2

1See U. S. Congress, Office of Technology Assessment, Managing Com High-Level mercial 1982) Radioactive (Apr. Waste 9 (hereafter OTA Study). the past “For years several Department of Energy or one of its predecessors has warning been the Congress annually almost of the immi nent closure aof number of nuclear reactors aas result of the lack of capacity available spent to store the nuclear fuel.... No reactor has yet shut down for these reasons, largely because utilities have expanded their storage capacity.” H. Rep. R. No. 97-785, pt. 1, p. (1982); Office Technology analysis Assessment’s found that “reactors running out of storage space, and may some have to shut down the mid-1990’s unless more storage space is made available timely on a basis.” OTA Study, at 27. See also (staff Affidavit of Terry R. Lash scientist for Natural Re- Even with problem. to the dimension ais second There fuel pro- spent all the safely to store adequate pools water reactor, permanent the of lifеtime working the during duced radioactive remain will the wastes because needed disposal long-term A number years.3 thousands exam- extensively have been strategies management waste deep in stable wastes sinking from range These ined. in Green- sheets ice beneath wastes placing to seabeds, space into wastes ejecting Antarctica, and land dispos- on focused has been attention The greatest rocket. as such repositories geologic in subsurface wastes ing to store where and of how Problems deposits.4 salt and scientific, political, considerable engendered has wastes aspects economic and both are There debate. public nu- stored, properly if not first, issue: waste the nuclear the environment both endanger leak might wastes clear disposal long-term lack of second, the health;5 human interim insufficiency risk increases option shutdowns, to reactor lead will fuel for spent space storage Bridenbaugh Dale 419; G. Council) 10, App. Affidavit ¶ Defense sources App. 478-480. 28-30, ¶¶ (nuclear engineer) at the disposal, “Waste 97-785, supra, at 46. Rep. No. R.H. See storage refers development, technological stage of present detoxify they until products waste highly radioactive very long lived There hazard. an environmental present longer they no sufficiently that less this waste steps which render or chemical physical no presently Nuclear Yankee Vermont time.” passage of simply toxic, than other 519, Council, Inc., 435 U. S. Resources Natural Corp. Power Defense (1978). 528, n. 6 Energy Com Committee, California Cycle Fuel Nuclear generally See Storage and Spent Fuel Reprocessing, Fuel of Nuclear mission, Status 173-373); Report (1978) (App. Report Draft Disposal, Waste High-Level Waste Group Nuclear Review Interagency by the President (1979). Management Re Systems, National and Alternative on Nuclear Committee 1985- Energy in Transition Sciences, Academy of Council, National search Technology and the Yellin, High (1979). also See 314-316 pp. 489, 534 L. Rev. Harv. Courts, 94 rendering nuclear an energy unpredictable and uneconomical adventure.6 laws,

The California at issue here are responses to these concerns. In 1974, California adopted the Warren-Alquist State Energy Resources Conservation and Development Act, Cal. Pub. Res. Code §25000-25986 Ann. (West 1977 and 1983). Supp. The Act requires that a utility seeking to build in California any electric generating plant, a including nuclear powerplant, must apply for certification to the State Energy Resources Conservation and Development Commis- sion (Energy Commission).7 The Warren-Alquist Act was amended in 1976 to provide additional state regulation of new nuclear powerplant construction.

Two sections these amendments are before us. Section 25524.1(b) provides that before additional nuclear plants may be built, the Energy Commission must determine on a case- by-case basis that there will be “adequate capacity” for stor- age of a plant’s spent fuel “at rods the time such nuclear facil- ity requires such . .. storage.” The law also requires that each utility provide continuоus, on-site, “full core reserve storage capacity” order to permit storage of the entire re- uncertainty The is reflected in the fact that since 1979 the Nuclear Regulatory Commission has been engaged in a proceeding to reassess the evidentiary basis for its position considerations will not com promised by continuing federal licensing while a disposal waste method being developed. 44 Reg. Fed. (1979); see Minnesota v. NRC, 195 U. App. D. C. 241, 602 F. 2d Moreover, the ulti mate solution to the waste disposal problem may significant entail expendi tures, affecting the economic attractiveness of the nuclear option. applicant must first a file notice of intention to file application an certification, after which the Commission conducts a review process for not more than 12 months. If the notice of intention is approved, the applicant must then application file an for certification, after which the Commission a conducts further process review not to exceed 18 months. Unless certi fication is granted, the proposed plant cannot be constructed; if certifica granted tion is the Commission is authorized to make specifications certain for construction of the plant and is directed to monitor the construction process. reac- repairs permit removed must be if it core actor storage of 25524.1(b) the interim addresses short, In

tor. spent fuel. nu- long-term solution deals 25524.2 Section imposes moratorium a section This wastes.

clear Energy Commis- plants until the оf new certification developed United has been there “finds sion there approved agency has through its authorized States disposal for the technology means or demonstrated a exists as a “Disposal” is defined waste.” high-level nuclear high- disposition of terminal permanent and “method (c). finding 25524.2(a), §§ Such . .” . . waste level nuclear nullify may it.8 legislature, which reported to the state bemust South- Co. Electric petitioners Gas Pacific & In in the United action filed this Co. Edison California ern numer- thsjit requesting a declaration Court, District States including the two Warren-Alquist Act, provisions of ous Supremacy under challenged invalid here, sections pre-empted they are because Clause standing petitioners had that held Court District The Act. pre- §§25524.1(b) the issues that 25524.2,9 challenge and to adjudication, and ripe for are by statutes two these sented pre-empted they are because provisions are void two the that by Supp. Energy F. 489 Act. with conflict and 1980). (ED Cal. 699 8 certi legislature, finding to the a Commission After transmission legisla 100 until prohibited to be continues powerplants nuclear

fication either findings by of the disaffirmance without elapsed have days tive but disaffirmed findings been have or, if the legislature, house to fails legislature Commission, if the Energy by to re-adhered then days their after legislative 100 by statute within findings the renewed void by the Commission. retransmittal coupled 25524.2, with §§ and 25524.1 that found Court 9 The District further findings, made required make to failure Energy Commission’s The risk.” unreasonable “an plants in nuclear by petitioners investment held were provisions other those sections if found also court devel plant nuclear further plans for reactivate would invalid, petitioners at 700-701. Supp., F. 489 opment.

199 for the affirmed the The Court of Ninth Circuit Appeals that the have to District Court’s ruling petitioners standing also statutes, agreed the California challenge It how- concluded, §to 25524.2 is review. challenge ripe §25524.1(b) ever, to was not challenge ripe “[b]e- cause cannot know whether the Commission will we ever to be plant’s storage capacity inadequate find a (1981).10 merits, . . . .” F. 2d 918 On the the court 903, 659 §25524.2 the nuclear moratorium provisions held that 274(k) §§ of the Atomic were not because 271 and pre-empted 2021(k), §§2018 constitute Energy Act, S. C. to authorization for States congressional regulate than radi- against “for other powerplants purposes protection §25524.2 held that was not de- ation hazards.”11 The court hazards, radiation but against signed provide protection challenges provi various unripe The court held certification also §§25500, 25502, 25504, 25511, 25512, sions, Cal. Res. Code Ann. Pub. (West 25514, 25520, 25523, Supp. 25516, 25517, 25519, 1977 and 1983), surrounding development rights, requirements acquire that utilities 25524.1(a). (West § 1983), reprocessing provisions § Supp. and the sites, requirement utility propose that a at least three alternative En ripe pre-empted § and not the Atomic was held review 2d, ergy applied to 25524.2. 659 F. Act for reasons similar to those 915-918. as set forth in 42 U. C. as amended and Section Stat. § 2018, provides: affect or

“Nothing chapter shall be construed to this Federal, agency respect regulations any State or local produced through the generation, sale, of electric or transmission Provided, Thаt this nuclear facilities licensed the Commission: use of any Federal, upon or local section shall not be deemed to confer State control, any activities of any authority regulate, or restrict agency the Commission.” 274(k), §2021(k), provides: 42 C. 73 Stat. U. S.

Section any authority affect the “Nothing in this section shall be construed to purposes protec- agency regulate to activities for other than State or local against radiation hazards.” tion regulatory provisions in the federal structure is discussed

The role of these infra, at 208-211.

200 cycle fuel the nuclear adopted ‍​​​​​‌​‌‌​‌‌‌‌‌‌​​‌​​​​‌‌‌​‌​​‌​​‌​‌​‌‌​​‌‌​​‌​​‍“uncertainties because

was source uncertain power and an uneconomical make nuclear provision invalid the energy.” Nor was F. at 925. 2d, 659 encouraging goal of the fulfillment of federal to as a barrier granting energy. state The development of atomic 274(k), §§271 federal with recent combined and did not intend demonstrated enactments, only it developed costs,” but “at all nuclear proceed subject priorities to con- other consistent pre- expressly by traditionally the States exercised trols by statute.12 federal served questions of whether granted limited certiorari

We §§25524.1(b) judicial ripe review, and are 25524.2 Energy they pre-empted Act. the Atomic are whether (1982). 457 S. 1132

II ripe judicial challenge agree 25524.2 that the- We §25524.1(b) concerning questions that the review, but pre- ripeness “is to doctrine rationale of The not. basic adjudica- premature through avoidance courts, vent the disagreements entangling in abstract themselves tion, from agencies protect рolicies, and also administrative over has judicial administrative decision until an interference from byway a concrete felt in and its effects been formalized 387 Gardner, parties.” challenging Abbott Laboratories a and decided Ninth consolidated appeal, Circuit In the same engineer hired to brought §25524.2 challenge to related job when the lost his plant subsequently who proposed work aon engineer held that had District Court project was abandoned. pre and that the law disposal law was challenge the waste standing had v. State Legal Foundation Act. empted by Energy Pacific 1979). (SD The Court Comm’n, Supp. Cal. F. Resources standing analysis and disagreed with the District Court’s Appeals U. S. 2d, certiorari. F. at 911-914. We denied reversed.

201 (1967). 136, 148-149 In Abbott Laboratories, which re leading mains our discussion of the doctrine, we indicated question ripeness that the turns “the fitness of the is judicial sues for hardship parties decision” and “the withholding court Id., consideration.” at 149.

Both of these finding factors in counsel favor of the chal- lenge disposal regulations §25524.2 to the waste ripe in adjudication. question pre-emption predominantly is legal, although it would be useful to have benefit interpretation of California’s of what constitutes a demon- technology strated disposal or high-level means for the pre-emption waste, resolution of the issue need not development. await that postponement Moreover, of deci- likely sion hardship would work substantial on the utilities. Appeals cogently As the Court of reasoned, for the utilities to proсeed hopes that, when the time for certification came, required findings either the would be made or the law would requires expenditures struck down, of dol- millions years, lars any over number of certainty a without of recov- ery if were certification denied.13 The construction of new requires planning facilities considerable advance —on years.14 of 12 to 14 order Reorga- Thus, as the Rail (1974), Cases, nization Act 419 U. S. 102, “decisions to be made now or in may short future be affected” “ act. whether we ‘One does not have to await the consum- injury preventive mation of threatened to obtain relief. If injury certainly impending enough.’” that is Id., at quoting Pennsylvania Virginia, 143, v. West 262 U. S. require industry proceed To without knowing impose whether pal- moratorium is valid would a Electric, Pacific &Gas for example, spent had at least million $10 be filing fore even notice of intention application an file for certification. (ED Opinion Supp. 1980) F. Cal. (Finding of Fact No. App. 72). to Pet. for Cert. id.,

14 Finding of Fact No. at 71. ulti- utilities, may on the hardship considerable pable Moreover, of California. citizens on the harm work mately it is void because §25524.2 correct if petitioners “de- energy, of atomic development commercial hinders key purposes one frustrate would resolution layed v. Carolina Power Co. Duke Act.” Energy] the [Atomic 59, 82 Inc., Group, Study Environmental §25524.2 is pre- whether issue of reasons, these For now.15 decided should be federal law empted question is disposal provision that the waste contend also Respondents injury— invalid, petitioners’ is if law even thе because ripe for not review power- building new nuclear from matter practical aas being prevented of the Warren- as other sections fully redressed inasmuch be not plants —will Respond construction. Court, prevent such also Act, not before Alquist Ill level of an Art. redressability rises this lack suggest that ents also peti in entirely upon a statement predicated arguments are Both concern. “unless and that for certiorari petition support of reply brief tioners’ least reviewed at system statutes certification the California until to build again undertake will invalidated/petitioners not largely Respondents 6. for Petitioners Reply Brief plants in California.” California The this entirely much statement. too from attempt to draw construction; in new impose a moratorium on not provisions do certification variety ofissues and gathered on information be main, they require that Ann. Res. Code Pub. Cal. Energy Commission. by the considered 25519, 25520, 25517, 25516, 25512, 25514, 25502, 25504, §§ presume that 1983). (West It is unreasonable Supp. 25523,25532 chilling on new effect the same will requirements exert informational these Ninth concurs: The Circuit a moratorium. would construction as hardship parties. for the any undue not cause adjudication delay in will “[A] and sub- have an ‘immediate scheme, general, does certification Association, 387 Toilet Goods Gardner the utilities. impact’ on stantial [Southern nor Electric] & (1967); Gas [Pacific neither . . . S.U. for certification application intention or has a notice Edison] California im- someday be might procedural burdens the threat pending, and meet En- for failurе someday might be denied certification posed or that (footnote 2d, F. at 916 remote best.” 659 standards ergy Commission omitted). pursue seek to will not petitioners “fears” that Respondents’ appear litigation, in this decision notwithstanding a favorable

option, exaggerated. greatly

Questions concerning the constitutionality of the interim storage provision, §25524.1(b), however, are not ripe for re- view. While the waste disposal statute operates on a state- wide basis, the Energy Commission is directed to make determinations under §25524.1(b) on a case-by-case basis. As the Court of Appeals explained, because “we cannot know whether the Energy Commission will ever find a nuclear plant’s storage capacity to be inadequate,” judicial consider- ation of this provision should await further developments.16 Furthermore, because we hold today §25524.2 is not pre-empted by federal law, there is little likelihood in- dustry behavior would be uniquely affected by whatever un- certainty surrounds the interim storage provisions. In these circumstances, a court should not stretch to reach an early, and perhaps premature, decision §25524.1(b). respecting I I

I It is well established that within limits constitutional Con- gress may pre-empt state authority by so stating express terms. Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977). Absent explicit pre-emptive language, in- Congress’ 16 The Court of Appeals noted that the draft report by the State Commission’s Nuclear Cycle Fuel Committee, which recommended requir ing all plants to provide a specified amount storage space, see Nuclear Fuel Cycle Committee, supra 4,n. 113, dоes not necessarily provision render the ripe. The report Committee only is an indication of the views of two of five members of the Energy Commission in 1978. Not only may change views in the future, but report itself cautions that it not represent does final agency action. Indeed, the full Commission’s decision on January 25, 1978, did not adopt this report or the Commit tee’s recommendations regarding on-site storage. Finally, recently enacted Nuclear Policy Waste Act 1982, Pub. L. 97-425, 96 Stat. 2201, (1982 C. 10101 seq. et ed.), authorizes the NRC to license tech nology for the storage on-site of spent fuel, § 133, and directs the Secretary of Energy provide to up 1,900 to metric tons of capacity for the storage of spent fuel, § 135; provisions these might influence the State Commission’s ultimate findings. altogether may from a found supersede law state to tent “ pervasive make as regulation ... so of federal ‘scheme Congress for the no room left the inference reasonable may Act of supplement ‘the because it,’ States so dominant interest is federal in which a field touch preclude enforcement system be assumed will the federal object subject,’ ‘the or because same on of state laws the character law and sought federal to be obtained purpose.’” by may the same imposed reveal obligations it Savings Cuesta, De la Assn. v. Fidelity & Loan Federal Elevator (1982), Fe quoting v. Rice Santa U. S. (1947). Congress has where Corp., Even 331 U. S. specific regulation area, state entirely displaced in a state actually conflicts pre-empted that it extent to the is law “compliance with arises when a conflict federal law. Such impossibility,” physical regulations is a and state federal both 373 U. S. Growers, Paul, Inc. v. Avocado & Florida Lime (1963), an obstacle as state law “stands or where 132, 142-143 purposes and full accomplishment and execution 312 U. S. Congress.” Davidowitz, objectives Hines supporting amici, States, the United Petitioners, §why major argument as to 25524.2 present lines three they it statute —because pre-empted. submit First, plants is al- it and because regulates of nuclear construction ignores the division predicated legedly concerns— authority the Atomic created state federal and between the Gov- field that Federal Energy falls within Act, and Sec- control. preserved exclusive for its own has ernment judgments conflict it, that underlie statute, ond, disposal concerning issue nuclear waste decisions Regulatory by Congress Commission. the Nuclear made goal of federal statute frustrates the California Third, energy. technology We of developing as a source in turn. these contentions each of consider A perusal a Even brief of the Act reveals despite that, comprehensiveness, its any point it does not at expressly require the States to construct or authorize nuclear powerplants prohibit or deciding, the States from as an abso- lute or permit conditional matter, not to the construction of any further petitioners reactors. argue Instead, that the preserve Act is intended to the Federal Government as the regulator sole all matters nuclear, and that 25524.2 falls scope within the impliedly of this pre-empted field. But as we Congress, view the issue, passing the 1954Act and in subsequently amending it, intended that the Federal Govern- regulate ment should radiological safety aspects involved in the operation construction and plant, of a nuclear but that the States retain their responsibility traditional in the field of regulating electrical determining utilities questions reliability, need, cost, and other related state concerns. Need for new facilities, feasibility, their economic and rates and services, are areas that have been characteris- tically governed by the States. Justice Brandéis once ob- served that operate public utility “franchise to a ... is a special „ privilege may granted which . . be or withheld pleasure of the State.” Corporation Frost v. Comm’n, (1929) U. S. (dissenting 515, 534 opinion). “The nature of government regulation private utilities is such that a util- ity may frequently required by regulatory the state. approval scheme to practices obtain regulated a business detail less would be free to any approval institute without regulatory body.” from a Jackson Metropolitan Edison Co., 419 U. S. See Central Hudson Gas & Corp. Electric v. Public Service Comm’n New York, 447 (1980) (“The State’s concern that rates be fair represents and efficient governmental clear and substantial interest”). exception theWith the broad Regu Energy Federal now the Commission, Power Federal pricing of electri for and need the latory Commission, over Federal commerce, see in interstаte power transmitted cal V), (1976 Supp. these § 824 ed. and S. C. Act, Power regulated generation have been aspects of electrical economic As we States.17 the great detail many years in and for Corp. v. Natural Power Nuclear Yankee in Vermont noted (1978): 519, 550 435 U. Inc., Council, Resources Defense Energy Act of Atomic the that under doubt little “There is similar bodies or utility commissions public state 1954, regarding the need decision initial empowered the to make which legislated a field here in “Congress Thus, power.” occupied. traditionally we start ... So have the States powers police States historic assumption that the unless Act superseded Federal not to were Congress.” Rice purpose of manifest and the clear was supra, Corp., 230. Fe Elevator Santa against however, read, Energy must be Act The Atomic first demonstrated Fermi background. Enrico another civilian authorized and 1942, in nuclear reactor Energy Act of Atomic 1946, in application of atomic time at which 755, Aug. Stat. 1946, 60 1, ofAct see 1946, (AEC) Until created. was Energy Commission Atomic ownership and control, use, however, 1954, En- monopoly. technology federal remained as 919, Aug. 68 Stat. 1954, ofAct ergy Act of util empowering legislation adopted many States had early as As Jones, Origins of the See utilities. electric regulate ity commissions Developments Necessity: Convenience Public Certificate (1979). every Today, 426, 454-455 L. Rev. 1870-1920, 79 Colum. States, adequate electric assuring authority for body with regulatory has a State Foreign on Interstate Committee rates. House at reasonable service Practices, Prob Concepts, Utility Sector: Commerce, The Electric 1977). description of For a (Comm. Print Sess., 12 Cong., 1st lems, 95th Bar Associ States, American in the see effect framework regulatory and the Need Power Law, The on ation, Special Committee Facilities Power Electric Decisions State Technologies: Choice

207 seq. (1976 et amended, §2011 S. C. U. ed. and V), Supp. grew out of Congress’ determination that the national inter- est would be best if served the Government encouraged private sector to become involved in the development atomic energy for peaceful purposes under a program of fed- eral regulation and H. licensing. See R. No. Rep. 2181, 83d 2d (1954). 1-11 Cong., Sess., The Act implemented this pol- icy decision by providing for licensing private construction, ownership, operation of commercial nuclear power reac- tors. Duke Power Co. Study Carolina Environmental Group, Inc., 438 U. S., at 63. The AEC, however, given was exclusive jurisdiction to license the transfer, re- delivery, ceipt, acquisition, possession, and use of nuclear materials. 42 U. S. §§C. 2014(e), (z), (aa), 2061-2064, 2091- 2071-2078, (1976 2099, 2111-2114 V). ed. and Supp. Upon these sub- no role jects, left was for the States.

The Commission, however, was given over authority the generation of electricity or itself, over the economic ques tion whether a particular plant should be built. ob We supra, served Vermont Yankee, that Com “[t]he mission’s prime area of concern . . . licensing context, is national security, public health, and also safety.” See Development Power Reactor Co. v. Electrical Workers, U. (1961) (utility’s investment not to be consid ered by Commission in decisions). its licensing The Nuclear Regulatory Commission (NRC), which now exercises AEC’s regulatory authority, does not to its purport exercise authority based on economic considerations, § 8.4 10 CFR (1982), and has recently repealed its regulations concerning the ‍​​​​​‌​‌‌​‌‌‌‌‌‌​​‌​​​​‌‌‌​‌​​‌​​‌​‌​‌‌​​‌‌​​‌​​‍financial qualifications and capabilities of a utility propos to ing construct and operate a nuclear 47 Fed. powerplant. Reg. 13751 In its notice of rule the NRC repeal, stated that utility financial qualifications only concern if NRC related to the public health and safety.18 It is 18 Seealso Safety NRC and Licensing Appeal Board, Consoli dated Y., Edison Inc., Co. (1978): 7 N. R. C. re “States ... of N. regula- left Congress have would almost inconceivable only inference reasonable tory vacuum; the judgments. these make continue to to States intended questions were ratemaking plant-need Any doubt S. C. §271, removed was hands in state remain provided: §2018, which affect chapter construed shall

“Nothing in this any or Federal, State regulations or sale, or generation, respect agency with local through the use produced of electric transmission . . . by the Commission licensed facilities of nuclear provision little accompanying do Reports this legislative The Rep. 1699, statutory language, No. S. the restate than more supra, Rep. 2181, (1954); No. H. R. Cong., Sess., 2d 83d Congress confirm of floor on the statements but at technology exclusive busi- the was of the while pro- power over the Government, state Federal the ness of displaced.19 electricity otherwise was of duction division fundamental this reinforced amendments The En- amended authority. In of ergy responsibilities respective “clarify the to order Act in per- NRC construction of an issuance the face right, even in tain for additional of need a lack as bases on such mit, preclude construction to proposed unacceptability the environmental capacity or generating facility or site.” (remarks Hicken (1954) of Sen. 12015, 12197-12202 Rec. Cong. 19 100 Strauss). Particularly (statements AEC Chairman id., looper); at Representatives floor between House on the exchange an instructive is imposed if the bill inquired Yates Representative Cole. and Yates convenience public whether “to determine Commission duty upon the con licensed to be institutions commercial certain necessity require and Repre purposes?” civilian power for production for the struct reactors grant imposition no such was there responded sentative Cole said, “is “That,” he necessity. and convenience upon public based licenses touch do not We authorities. State existing Federal regulated Id., 11689. respect.” any

... of the States and respect the Commission with regulation byproduct, special source, and nuclear materi 2021(a)(1). § als.” 42 U. S. Rep. C. See S. No. 870, 86th Cong., 1st Sess., authority 8, 10-12 of the States planning over the powerplants for new ratemaking were not at point issue. Indeed, the of the 1959 Amendments heighten was to 274(b), States’ role. Section 42 U. S. C. §2021(b), by agreements authorized the NRC, with state governors to regulatory authority discontinue its cer over tain nuclear materials under limited conditions.20 State programs permitted under the required amendment were to be compatible” “coordinated and with that of the NRC. §2021(g); Rep. supra, No. subject at 11. The mat agreements ters of those by 274(c), were also limited §2021(c), U. S. C. which states: “[T]he Commission shall responsi- retain bility respect regulation of—

“(1) operation any production construction and facility; or utilization

“(4) disposal byproduct, of such . . . source, or special nuclear material as the Commission determines . . . potential should, of because the hazards or hazards disposed thereof, be so not of without a license from the Commission.”

Although authority 274(c) §by the exclusively reserved was for the Commission to Rep. supra, exercise, see No. Rep. at 8, 9; H. R. No. Cong., 1125, 86th 1st Sess., 8, (1959), Congress made clear that the section in- was not pre-existing tended to cut back on authority state outside the 20Authority could be shifted States for byproduct control over material, source special and over quantities material “in not suffi cient form to a critical mass.” signed §274 California has agreement. Cal. Safety Health & (West §§25875-25876 1967). Code Ann. §2021(k), 274(k), 42 S. C. U. jurisdiction.21 Section NRC’s states: the to affect

“Nothing shall construed section this regulate agency activi- any to authority local or State against protection radiation purposes than other for ties hazards.” pre-emptive only effect 274(k), by limits itself,

Section represent af- an and does is, §274, section,” “this Congress, But grant to the States. firmative protection purposes than regulation other рermitting “for drawn distinction underscored the hazards” against radiation respectively activity to spheres of left in 1954 between and the States. Government Federal unchanged, for our has remained regulatory structure This proviso following added was purposes, when until §271: to to con- not be deemed shall section that this

“Provided, any agency author- any upon or local Federal, State fer ity any regulate, activities or restrict control, to Commission.” Report accompanying Joint Committee intended was not the amendment clear makes energy In- facilities.22 over state

to detract from 2021(l), an advi § created 274(l), § S. C. 274(k), § to In addition NRC’s exclusively within the respecting activities States sory role 2021(g), the Commission § directs 274(g), U. S. C. jurisdiction, and regula standards in the formulation of the States even cooperate with hazards. against radiation tion li AEC’s in the act provisions pertaining unique these “Because of used which could be operating persons reactors censing regulation among the draft feeling of uneasiness some electricity, there was produce agencies— upon other new law effect of the legislation over the ers of the sale, generation, jurisdiction over having State, Federal, and local — by the recognized drafters It power. was of electric transmission and sale, generation, respect agencies authority these with other of fa through the use of nuclear power produced transmission electric and regulatory AEC’s law; and that this new affected cilities was not stead, the provisо was added to overrule Court of Appeals opinion which interpreted § 271 to allow a municipality pro hibit transmission lines necessary for the AEC’s own activi ties. Maun v. United States, 347 F. (CA9 2d 970 1965). There is no indication that Congress intended any broader limitation state regulatory power over utility companies. Indeed, Reports and debates accompanying the 1965 amend ment indicate 271’s purpose “was to make it absolutely clear that the Atomic Energy Act’s special provisions on li censing reactors did not disturb the status quo with re spect to the then existing Federal, State, and local bodies to regulate generation, or sale, transmission of electric power.” 111 Cong. Rec. (1965) (statement of Sen. Hickenlooper).23

This account indicates that 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 control was limited to considerations involving the common defense se- curity the protection of the health of the public with respect special hazards associated with operation of nuclear facilities. Nevertheless, section 271 was added to make it explicit that licensees of the AEC who produced power though the use of nuclear facilities would otherwise remain subject to the authority of all appropriate Federal, State, and local authorities respect to the generation, sale, or transmission of power.” electric H. Rep. R. No. 89th Cong., Sess., (1965). 1st “The amendment of this sectiоn effected this bill is intended as a clari- fication of the meaning of section 271 as originally Id., enacted.” at 10. expressions While of a subsequent Congress generally are not thought particularly useful in ascertaining the intent of an earlier Congress, Sena tor Hickenlooper, sponsor of the 1965 amendment, was an important figure in the drafting of the 1954 Act. Senator Pastore, also involved in the writing of Act, the 1954 elaborated: “We were conscious that it was not desired that the AEC should engage in the business of regulating electricity as such. . . . We were trying to keep the AEC out business regulating electricity. That is gave what birth to section 271. provided We that nothing in the act would affect the local supervising authority’s right to control the manufacture of electricity generated by nuclear facilities.” 111 Cong. Rec.

212 Federal Govern- the electricity generation:

nuclear-powered “nuclear” and safety the of control complete maintains ment tradi- their exercise States the energy generation; of aspects ca- generating for additional need the over authority tional land licensed, to be facilities of generating type the pacity, like.24 the ratemaking, use, deciding But controversial. not particularly is above The diffi- a more is classified construed to be is §25524.2 how stat- the emphasize outset, we theAt proposition. cult of operation or the construction regulate to not seek does ute impermissible clearly It would powerplant. nuclear a if en- even regulation, for such so, to do attempt to California directly nevertheless concerns, would nonsafety of out acted con- plant over authority NRC’s exclusive the with conflict as concede to appear Respondents operation. struction al- however, argue, broadly do Respondents much. for- is by States plants nuclear of regulation safety though construction new prohibit completely may State bidden, a Federal Govern- satisfied concerns safety its until regula- safety State reasoning. line of this reject ment. We federal conflicts it only when pre-empted is not tion en- occupied has Government Federal Rather, law. powers limited except concerns, field of tire Federal Govern- States,25 When to the ceded expressly Minnesota, 24 Power Co. v. States Northern in summary affirmance Our (1972), fully is aff’d, 405 U. S. 1035 summarily (CA8 1971), 2d 1143 F. authority. Min regulatory the division reading of with this consistent plants from discharges waste radioactive regulate effort nesota’s regu federal reserved safety regulation the field within squarely fell no States requires Northern in regulation of this invalidation lation. Act. and 274 §§ 271 preserved the state retraction as an be read not to affirmances, “is our action summary all And, as with Zobel review.” under judgment supporting the reasoning adoption Bradley, U. S. v. (1982); Mandel 64, n. 13 Williams, U. S. curiam). (1977) (per NRC with the agreements into to enter opportunity In addition regulate the States authorized specifically has 274(c), under completely occupies ment given field or por an identifiable tion of it, as it has done pre-emption here, the test of is whether “the matter on right which State asserts the any way regulatеd act the Federal Act.” Rice v. Corp., Santa Fe Elevator S., 331 U. at 236. A state morato rium on grounded nuclear safety construction concerns squarely falls prohibited within the field. a Moreover, state judgment that nuclear enough is not safe to be further developed directly would conflict countervailing with the judgment of the NRC, see, infra, at 218-219, that nuclear may proceed construction notwithstanding extant uncertain disposal. ties as to prohibition waste A state on con-, nuclear safety struction for reasons would also be in the teeth of the Energy objective Act’s to insure that nuclear technol ogy enough be widespread safe development and use— pre-empted would be for that reason. Infra, at 221-222. being

That necessary the case, it is to determine whether nonsafety § there is a rationale for 25524.2. California has Appeals agreed, maintained, and the § Court of that 25524.2 was problems, aimed at economic not radiation hazards. The Assembly California Committee on Resources, Land Use, Energy, proposed which package including of bills reported §25524.2, disposal problem the waste was “largely poor economic or planning, the result of safety not related.” Reassessment of Nuclear in California: A Policy Analysis Proposition p. its and Alternatives, (1976) (Reassessment Report) (emphasis original). explained Committee federally that the lack of a approved disposal method of “clog” waste created a in the nuclear fuel cycle. Storage space was limited while more nuclear wastes continuously produced. were permanent Without a means disposal, problem the nuclear waste could become critical, radioactive air pollutants from plants, Clean Air Act Amendments 1977, § (1976 42 U. S. C. 7422 ed., Supp. V), and impose certain siting and land-use requirements plants, NRC Authorization Act for Fiscal Year 96-296, Pub. L. 94 Stat. 780. or, problem contain the costs high unpredictably leading safety,” disposal “Waste in reactors. worse, shutdowns addressed directly not notes, “is Report Reassessment cho- disposal] waste a method [of only ask which bills, Id,., at 156 government.” federal accepted sen and in original). (emphasis §25524.2. reading this adopted Appeals

The Court concluded: the court Report, Reassessment Relying other purposes towards directed is 25524.2 “[S]ection Prop While radiation hazards. against than protection to judge California required have 15 would osition section disposal, of waste method aof proposed government. federal that judgment leaves 25524.2 adequacy with the concerned California 2d, F. existence.” with its rather method, but 925. in confidence considerable place is to practice general

Our courts the federal law reached of state interpretations (1982); S.U. Rogers, Mills v. Cf. of appeals. and (1976). Petitioners Wood, 426 U. Bishop in a this interpretation to upset attempt amici nevertheless evinces § 25524.2 maintain that they First, ways. number stat- The nuclear power. the economics no concern per- of a “existence” and “development” that the ute states authorities federal technology approved disposal manent for con- provide does not statute moratorium; lift the will This selected. technology economic costs sidering is technology a Once myopic. overly is of the statute view the California utilities demonstrated, selected costs; to estimate ‍​​​​​‌​‌‌​‌‌‌‌‌‌​​‌​​​​‌‌‌​‌​​‌​​‌​‌​‌‌​​‌‌​​‌​​‍be able would Commission Public Utilities Govern- until the Federal made cannot such estimates cost dis- waste long-term the method upon ment settled has is technology disposal satisfactory a once Moreover, posal. op- down to close having fears of demonstrated, found evaporate. largely should reactors erating suggested Second, it is that California, if concerned with economics, would have banned California utilities from build- ing plants outside objection the State. This carries little force. There is no indication that California utilities are contemplating such legislature construction; the state is not obligated purely hypothetical to address problem. facets a petitioners

Third, note already body, that there is a California Public Utilities Commission,which is authorized to grounds determine on economic power- whether a nuclear plant should be constructed.26 certainly While California is free to make these case-by-case decisions on a basis, a State reaching not foreclosed from through same decision a legislative judgment, applicable to all cases. The economic engendered by uncertainties disposal prob- the nuclеar waste lems are vary not factors that facility facility; from readily generalized issue lends itself to more decisionmaking and California pursuing cannot be faulted for that course. petitioners

Fourth, Proposition note that 15, the initiative §25524.2 out of companion which provisions arose, and in California’s so-called nuclear clearly laws, are more writ- safety purposes ten with suggested mind.27 It is §25524.2 shares heritage common with these laws and presumed should be to have been pur- enacted for the same (West Cal. Pub. Code 1983). Util. Ann. Supp. 1975 and 27The 1976 amendments to Warren-Alquist passed Act were as an Proposition 15, alternative to an initiative submitted to California’s voters (By June 1976. terms, their provisions these would not have become operative if Proposition 15 had adopted. been Cal. Pub. Res. Code Ann. §25524.2, (West 1977). Historical Note proposition rejected.) was 25524.2, § Like Proposition 15, among things, other barred the construc tion of new powerplants permanent unless a method of waste dis posal was developed, though Proposition 15 gave as the reason for its con cern the threat of harm to “the people or land of . . . California.” Similarly, Cal. (West Pub. 25524.3(b) Res. Code 1982) Ann. Supp. re quires the State to study Commission undertake a of underground placement and berm reactors, containment of nuclear to determine whether such construction techniques necessary are “enhancing for public health safety . . . .” laws other state these is that here answer short poses. The Proposition not 15 was indeed, Court, before not are other pedigree not taint do provisions and their passed; these Warren-Alquist Act. parts of the in en- intent specific of California’s

Although indicia these interpretation, there varying subject §25524.2 to acting embroiled why not become should we reasons further are two First, true motive. California’s attempting ascertain to in unsatisfactory ven- an often legislative motive is inquiry into U. S. O’Brien, v. States United ture. nec- is not for a statute vote legislator to one motivates What Second, it. enact to of others scores essarily what motivates engage in- in such pointless us to particularly for be it would have been allowed States that the it is clear quiry here when generating fa- electrical authority the need over to retain halt to inclined permit so a State easily to sufficient cilities refusing on eco- plants newof construction public convenience grounds certificates issue- to nomic it circumstances, should In these proceedings. individual has misused a State whether up to determine its hands. left in pur- economic avowed accept California’s Therefore, we Accordingly, §25524.2. enacting pose rationale as occupied of nuclear field lies the statute outside regulation.28 (1971), 637, 651 S.U. Campbell, Perez correctly cite Petitioners federal operation of frustrate may not law state proposition

for the pur had its law some passing legislature the state simply because law Perez, however, this unlike In of frustration. than one in mind other pose Perez law. federal state and between actual conflict an ease, there was had who motorists uninsured required law Arizona an involved after ac pay settlements had failed them or against judgments satisfied license would the State before responsibility financial prove their cidents Bank Federal law, contrary Arizona again. to drive them discharged in bank not be would obligation this Act, specified ruptcy pur its the fact that despite pre-empted, law state held the We ruptcy. in the collection to aid than driving rather irresponsible to deter was pose

217 B major argument regu- Petitioners’ second concerns federal disposal problem lation aimed at the nuclear waste itself. It § regulation is contended that 25524.2conflictswith federal disposal, nuclear waste with the NRC’s decision that it is permissible notwithstanding to continue to license reactors, uncertainty surrounding disposal problem, the waste and Congress’ passage legislation recent directed at that problem.

Pursuant to its under the Act, U. S. C. (1976 V), Supp. 2111-2114 §§ 2071-2075, ed. and AEC, promulgated regu and later the NRC, extensive and detailed concerning operation lations of nuclear facilities and the handling following provisions of nuclear materials. The spent disposal relevant to the fuel and waste issues this operating case. To receive an NRC one license, must sub safety analysis report, mit a which includes a “radioactive (ii)(1982). § handling syste[m].” 50.34(b)(2)(i), waste 10CFR 150.15(a)(1)(i)(1982). § regulations See also 10 CFR specify general design requirements

criteria and control for storage handling fuel and radioactive waste to be storеd pt. App. at the reactor site. 10 CFR Criteria A, 60-64, (1982). p. promulgated In addition, the NRC has de regulations governing storage disposal away tailed from (1982). pt. promul the reactor. 10 gated procedural requirements covering CFR NRC has also applications

license disposal high-level geologicreposi radioactive waste in pt. tories. 10 CFR

Congress gave Department responsibil- ity temporary permanent “the establishment of fa- storage, management, disposal cilities for and ultimate §7133(a)(8)(C) (1976 nuclear wastes.” U. S. C. ed., Only if of debts. there an actual conflict were between 25524.2 and the Energy Act, impossible such that adherence to were both or the operation of state accomplishment objective, law frustrated of the federal apposite. would Perez be have yet facilities V). disposal permanent No such

Supp. Energy and the the licensed, Department NRC been fuel at reactor sites of spent the storage to authorize continue the asked Natu- the NRC was 1977, In in of water. pools until reactor licensing to halt Defense Council ral Resources dis- a of permanent was method there it had determined that, given The NRC concluded waste. high-level posal facilities disposal development toward the the progress it continue could storage, of interim availability Council, Resources Natural new reactors. license Defense (CA2 1978). F. 168-169 582 2d NRC, Inc. v. it is only indicates however, imprimatur,

The NRC’s economically is not it such plants, with safe to proceed not and could order does the NRC wise do so.29 Because 29 petition Resources Defense Council’s NRC The Natural Energy required agency Act consider the claimed that the determining disposal in whether to waste license safety aspects of off-site stating that it had to petition, examine The NRC denied reactors. Reg. 42 Fed. licensing in safety risks its decisions. only on-site nuclear reactors (1977). to consider whether not asked The NRC was waste light of the unresolved dis sufficiently reliable investments were this Nor was issue not address issue. and the NRC did posal question, Resources decision Natural of the raised in the review NRC’s Defense 1978). (CA2 Appeals As the Court of Council, NRC, 2d 166 582 F. Inc. v. NRC, granting nuclear prior to ... is whether stated, “the issue safety re health and licenses, required by public operating reactor . . . that a determination to make [Atomic Act] quirement Id., safely.” disposed of permanently wastes can be high-level radioactive deleted). (emphasis at 170 addressing to which the extent assess Similarly, proceeding the NRC’s into NRC reactor technology should be factored disposal ments waste the issue. This address the economic ramifications does not licensing presently pend litigation, and is subject prolonged matter has been Council, v. Inc. Natural Resources See ing the Court. before Defense (1976), rev’d sub nom. Ver 547 F. 2d 633 NRC, App. D. C. 178 U. S. Resources Coun Corp. v. Natural Nuclear Power mont Yankee Defense remand, App. D. C. (1978), cil, Inc., on 435 U. S. Electric Co. sub nom. Baltimore Gas & (1982), granted cert. F. 2d 459 Council, Inc., 459 U. S. Resources Natural Defense compel utility to develop a nuclear plant, compliance with both it and §25524.2 is possible. Moreover, beсause the NRC’s regulations are aimed at insuring that plants safe, not necessarily that they are economical, §25524.2 does not interfere with the objective of the federal regulation. Nor has California sought through §25524.2 to its impose own standards nuclear waste disposal. The statute ac- cepts that it is the federal responsibility to develop and li- cense such technology. As there is no attempt on Califor- nia’s part to enter this field, one which is occupied Federal Government, we do not §25524.2 find pre-empted any more by the NRC’s obligations in the waste disposal field than by its licensing power over the plants themselves. After this case was decided the Court of a Appeals, new piece was added to the regulatory puzzle. In its closing week, the 97th Congress passed the Nuclear Waste Policy Act of 1982, Pub. L. 97-425, 96 Stat. 2201, a complex bill pro viding for a multifaceted attack on the problem. Inter alia, the bill authorizes repositories of disposal high-level ra dioactive waste and spent nuclear fuel, provides for licensing and expansion of interim storage, authorizes research and development, and provides a scheme for financing. While of passage this new legislation may convince state au thorities that there is now sufficient federal commitment a to fuel storage and waste disposal that licensing nuclear reac tors may resume, and, indeed, this seems to be one of the purposes the Act,30 it does not appear that Congress in- 30The itself, Act § 111(b), 42 (1982 10131(b) §C. ed.), enumerates the following purposes: “(1) to establish a schedule for the siting, construction, operation and repositories that provide will a reasonable assurance that public and the environment will be protected adequately from the hazards posed by high-level radioactive waste spent and . . . nuclear ; fuel. . . “(2) to establish the Federal responsibility, and a definite pol- Federal icy, for disposal of such waste spent and fuel.” 96 Stat. 2207. See also H. R. Rep. No. 97-785, pt. 2, pp. (1982) 59-60 (purpose of Act to provide “reasonable assurance that safe disposal waste methods will be leg- through this for the States decision that make tended to precisely that attempted to do McClure Senator islation. the Act providing that bill the Senate to amendment with an ap- anof existence requirements for the legal any satisfied spent and fuel disposal of technology facilities and proved adopted was amendment The high-level waste. (Apr. 29, Cong. Rec. S4310 debate. without the Senate strongly hearings, it was 1982). subsequent During House this to affect as language so be omitted urged that this Hearings Policy, before Disposal Waste Nuclear See case. Power Energy Conservation on the Subcommittee Cong., 2d 97th Commerce, Committee House emerged (1982). The bill which 553-554 Sess., language, and Senate omit the did Committee House from the House Ottinger, stated Representative manager, its be no there “to insure language deleted was 1982). (Dec. Cong. H8797 Rec. preemption.” 128 language. the House signed ultimately law followed into bill from the inferences correсtly to draw reluctant arewe While appear im- case, this would, in it act, failure Congress con- reading Act give proper for us certainly possible to it rejected. Moreover, sidered solving waste as directed interpret Act necessarily existing without reactors problem disposal plant construction requiring future that encouraging or undertaken. c §25524.2 frustrates strongly that

Finally, contended it is develop commercial purpose to Energy Act’s is law state that established power. well isIt of use accomplishment to the an obstacle as pre-empted if it “stands objectives of Con- purposes and full of and execution 1982) (remarks (Sept. H8162 Cong. needed”); Rec. 128 when available (the Winn) (remarks Rep. 1982) id., (Sept. Udall); H8166 at Rep. Federal Government industry public Act “demonstrates waste”). high-level dispose of reponsibility fulfilling its is

221 gress.” Hines v. Davidowitz, 312 U. S., at 67; Florida Lime & Avocado Growers, Inc. v. Paul, 373 Fi- S., U. at 142-143; delity Savings Federal & Loan Assn. v. De la Cuesta, 458 S., 153.

There is little doubt that a primary purpose of the Atomic Energy Act was, and continues to be, the promotion of nu- clear power. The Act itself states that it ais program “to encourage widespread participation in the development and utilization of atomic energy peaceful purposes the maximum extent consistent with the common defense security with the health and safety the public.” 2013(d). U. S. C. The House and Senate Reports con- firmed it “a major was goal of the policy United States” - the involvement of private industry would “speed the further development of the peaceful uses atomic energy.” H. R. No. Rep. 883, 89th 1st Cоng., Sess., (1965); H. R. No. Rep. 2181, 83d 2d Cong., Sess., (1954); S. Rep. No. 1699, 83d 2d Cong., Sess., The same purpose is manifest passage the Price-Anderson Act, U. S. §C. 2210, which limits private liability from a nuclear accident. The Act was passed “[i]n order to protect the pub- lic and to encourage the development atomic energy . . . industry .” 42 U. Duke Power §2012(i). C. v. Co. Carolina Study Group, Environmental Inc., 438 U. S., at 63-67.

The Court of Appeals’ suggestion that legislation since 1974 has indicated a “change congressional outlook” un convincing. court observed that Congress reorganized the Atomic Energy Commission in 1974 by dividing pro motional and safety responsibilities of the AEC, the for ‍​​​​​‌​‌‌​‌‌‌‌‌‌​​‌​​​​‌‌‌​‌​​‌​​‌​‌​‌‌​​‌‌​​‌​​‍ giving tomer the Energy Research and Development Administration (ERDA)31 and the latter to the NRC. Energy Reorganiza tion Act of 1974, 88 Stat. 1233, seq. et U. S. § 5801 C. The evident desire of Congress to prevent from being 31In 1977, ERDA’s functions were Department transferred to the of En ergy. 91 577, 7151(a) (1976 Stat. V). § 42 U. S. ed., C. Supp. 222 into translate not does concerns by promotional

compromised power. promoting nuclear objective of theof abandonment an any to avoid carefully fact, in drafted, legislation was The nu- continuing to commitment The sentiment.32 antinuclear Price-Ander- the of extension power is reflected clear 2-14, 94-197, L. Pub. 1987, coverage until Act’s son preclusion of express Congress’ inaswell 1111-1115,as Stat. energy primary petroleum as gas and natural reliance Fuel Powerplant Industrial powerplants, in new sources 8301(b)(3), §§C. 42 U. S. Stat. ofAct Use V). that course, of true, is 8312(a)(1976 Supp. It ed., develop- simultaneously promote the sought to Congress has these view not do energy we sources, but of alternative ment its from Congress retreated has that steps indication anas nuclear development of to further oft-expressed commitment electricity generation. power for promotion right, that however, Appeals is of The Court costs.” accomplished “at all be to power not contin safety provisions and licensing and elaborate The belie areas regulation in traditional of state preservation ued to deter States allowed has Moreover,

that. plant a economics—whether matter mine—as The decision built. plant should fuel a fossil vis-a-vis consti itself, not, does that exercise to California argu- Therefore, while pre-emption.33 a basis tute from ERDA prohibiting language had included bill The Senate of concern out source” energy single any priority “giving unwarranted of nu development priority give an unwarranted “may ERDA that Rep. technologies.” energy competing detriment clear giv about no concern expressed (1974). bill The House 93-980, p. No. Rep. No. 93-707 R.H. power. to nuclear priority” ing “unwarranted subsequently Committee, and by the Conference reported (1973). bill instead language, but prohibitory Senate’s contain the enacted, did No. Rep. H. Conf. R. promoted. to be technologies were all stated 93-1445, p. favor policy congressional claim rejected a similar recently We may have legislation state pre-empted fuel source aas coal use petitioners

ment of and the United States has considerable legal reality force, the Congress remains that has suffi- left authority cient in the States development to allow the to be slowed stopped or even for economic reasons. statutory Given this it scheme, is for rethink the regulatory division of light pos- in of its sible exercise the States to objective. undercut a federal The courts not should assume system the role which our as- signs Congress.34

IV judgment Appeals Court is Affirmed. Justice Blackmun, with whom Justice Stevens joins, concurring part and concurring the judgment. join I opinion, except Court’s to the suggests extent it may prohibit that a State not the construction of nuclear powerplants if State is motivated concerns about the plants. of such Since the Court finds that California was not suggestion so motivated, this unnecessary an adverse effect the use of coal. Commonwealth Edison Co. v. Mon- tana, 453 U. (1981). 34Our resolution of this case is not controlled by First Hydro-Elec Iowa Cooperative FPC, tric S. 152 Iowa, In First this Court compliance held that requirements with for a permit state under Iowa law necessary was not in order to secure a federal license for hydroelectric project. Allowing the States to veto federal decisions could “destroy the effectiveness the Federal Act. It would subordinate to the control of ‘comprehensive’ State the planning which provides the Act shall de pend upon judgment of [the Federal Id., Government].” In 164. manner, the same requiring compliance with requirements state would have project reduced to a size that the Federal Power Commission had determined was inadequate, complianсe engineering state require ments could handicap the financial success of the project. The Atomic En ergy Act does give comprehensive NRC planning responsibility. Moreover, §25524.2 does not interfere with the type plant that could be constructed. regulations State which affected the construction opera federally tion of approved powerplants pose would a different ease. dic- the Court’s I believe More important, holding. Court’s respects. in several is wrong tum safety-moti- that a State’s the position takes

The Court power- of nuclear construction to prohibit vated decision reasons. distinct three pre-empted would plants has oc- Government Federal “the states that the Court First, concerns, except safety nuclear field of the entire cupied Ante, at 212. to the States.” ceded expressly limited powers nu- that “a state judgment indicates Second, Court would developed further to be enough not safe clear power countervailing judgment with squarely conflict notwith- may proceed nuclear construction . that . . NRC Ante, disposal.” as to waste uncertainties extant standing con- on that a prohibition believes the Court Third, 213. at in the “be teeth nuclear would plants of new struction nuclear technol- to insure Act’s objective Atomic Energy and use.” development widespread enough safe be ogy that a I cannot agree below, For reasons summarized Ibid. con- safety if moratorium, even motivated nuclear State’s these grounds. any pre-empted wоuld be cerns, I of “nuclear the broad field occupied has

First, Congress nuclear area of how a the narrower only but concerns,” against to protect and operated be constructed should plant have traditionally possessed States hazards.1 radiation on in rely meeting technologies which to choose authority Act lim- in the Atomic Energy Nothing needs. energy their this exercising State, that a or intimates authority, this its nu- that distinguish the features not consider may authority, contrary, theOn sources. other power from plants clear 2018, § 42 U. S. C. amended, as Act, Stat. 271 of nuclear continue, respect may States indicates that role, ante, federal recognizes the nature limited The Court terms, ante, at 212-213. expansive role more then describes but

power, to police power exercise their traditional over the they manner in which energy meet their needs. There inis, short, no evidence that had a “clear and manifest purpose,” Rice v. Santa Corp., Fe Elevator 331 U. S. 218, (1947), to force States to be blind special to whatever dangers posed by plants. nuclear pre-emption

Federal of the States’ to decide against power regulatory would create a vacuum. Wiggins, See Balancing Federalism Burger Court: Preemption California’s Nuclear Law as a Study, Case U. C. D. L. Rev. making In pol- its traditional icy choices power about what kinds of are best suited to its needs, a ignore State would forced to the undeniable fact that nuclear entails certain risks. While the NRC dangers does evaluate the generating power, it dangers does not against balance those the risks, costs, and benefits of other choices available to the State or consider the public State’s standards of necessity. convenience and As Wiggins Professor noted: utility

“If a regulatory agency state like California’s En- ergy prevented Commission is making general from a feasibility, grounds evaluation of on broad social, of eco- ideologicalpolicy, nomic then the decision whether facility build a nuclear in ultimately a state will be made only by public utility seeking the its construction. . . . It public would be energy ironic if granted utilities, jurisdictional monopoly large part because of their regulation heavy by the state, regula- were freed from tory oversight promises one decision which to af- greatest fect persons number greatest over Ibid, possible (emphasis time.” original).

In important short, is an there distinction between the threshold permit determination whether to the construction plants of new nuclear if permit and, the decision is to con- subsequent struction, the determinations of how to construct belongs to decision plants. The threshold operate those Note, See NRC. for the decisions the latter State; Legal Power? Say to Nuclear May “No” State A Pacific 189, L. 10Envir. Disappointing Answer, aGives Foundation present in the (1979)(criticizing decision District Court case).

II may suggesting States that basis second The Court’s safety plants on of nuclear prohibit construction not with prohibition conflict would grounds such a is that may plants judgment construction NRC’s however, reasons, ban safely proceed. A flat and state federal “compliance both with make would Lime & impossibility.” Florida physical regulations ... a 142-143 U. S. Paul, Growers, Inc. Avocado judgment it is safe expressed its has The NRC plants, operation of nuclear proceed construction with States has mandated NRC nor neither the but at 205. ante, See do so.2

III if it law federal regulation' also conflicts A state accomplishment and execution anas obstacle “stands Congress.” Hines v. objectives purposes and full suggests (1941). The Court U. S. Davidowitz, plants would be safety-motivated state ban that a ante, See well. as this standard pre-empted under develop- encouraged merely Congress has But 221-222.3 that construc course, if NRC determined exist, A conflict would to nevertheless chose proceed and State not plants could tion of nuclear Growers, Inc. Lime Avocado Florida & Cf. construction. go ahead S., at 143. Paul, Atomic of the the teeth would be “in a ban that such states The Court enough for technology safe be that nuclear objective to insure Act’s Energy Ante, decision A at 213. State’s use.” development and widespread indirectly only however, affects plants, of nuclear construction permit to enough safe power nuclear ensuring that goal Energy Act’s the Atomic

ment of technology nuclear so toas make another source of energy available Congress to the States; has not forced the accept particular States to this source. See Note, 10 Envir. (“Congress L., at 199 has not evidenced a dictаtorial intent every power state to plants”). build nuclear A ban on plant nuclear construction for reasons thus does not Congress’ conflict with objectives purposes. or The Energy Atomic Act promote was intended to the tech- nologicaldevelopment power, of nuclear at a time when there private was no power nuclear industry. The Act addressed practical question “the bringing industry such an into being,”4 in order to make available an energy additional source. The Court makes general much of the statements of purpose in legislative the Act and the history, see ante, at 221, but those simply statements Congress’ reflect desire to private create a power industry. Congress did not compel give preference States to product the eventual industry ignore peculiar or to problems associated product. with that Wiggins, See 13 U. C. D. L. Rev., at 78. legislation

More recent very makes it clear that there is no policy preventing federal a State choosing from rely on technologies it considers power. safer than nuclear The En ergy Reorganization Act of 1974, 88 Stat. 1233, 42 U. S. C. for widespread development. safety-motivated A might ban highlight a perception State’s that the federal safety goal had not been accomplished, but the ban itself would not interfere with efforts to achieve goal. apparently Court believes the Act’s purpose actual was to maximize the use of to satisfy the Nation’s needs. A moratorium ‍​​​​​‌​‌‌​‌‌‌‌‌‌​​‌​​​​‌‌‌​‌​​‌​​‌​‌​‌‌​​‌‌​​‌​​‍on construction of nuclear plants prevent would the accom- plishment goal, of this but, as infra, demonstrated the Court is incorrect attributing this goal Congress. Moreover, degree to which a nu- clear hampers moratorium achievement goal does not depend on the motives of its framers. by Congressman 4 Address Cole, Chairman of Joint Committee Atomic Energy, delivered at International on Nuclear Engineer (June ing 24, 1954), quoted in Lemov, State and Local Control Over the Location of Nuclear Reactors Under the Atomic Energy Act of N. Y. U. L. Rev. promotional V), separated (1976 Supp. seq. § ed. and et 5801 power. The nuclear of in the area regulatory functions and regulatory li and perform the to NRC established Act § 5841, Commission, Energy censing functions Development Administration and Research and efficiency reliabil and (ERDA) “develop, increase and to 5801(a).5 legislative § energy sources.” ity of, all of use pronuclear bias a expresses about concern history the Act of have to desire agency regulatory and demonstrates in the emphasis on greater “place relative Government Federal (1974).6 p. 14 Rep. 93-980, energy.” No. S. nonnuclear fact purpose consistent legislative This of construction prohibiting the many of means retain States may refuse States plants borders. their within nuclear necessity for indi- public and convenience of certificates issue siting They may establish powerplants. vidual nuclear strin- plants are more requirements nuclear land use Act for Authorization NRC the NRC. Cf. gent of those than 108(f), § Under 94 783. Stat. 96-295, L. Pub. 1980, Fiscal regulate may 1977, States of Amendments Act Air the Clean impose may plants and from air emissions radioactive promulgated those than stringent standards emission more V). (1976 Supp. §§ ed., 7422 7416, C. U. S. the NRC. nu- of prevent the construction may used This New Co. Edison altogether. plants Consolidated of clear 2), ALAB-453, (Indian No. Station, Unit Point York, Inc. 13 n. 31, 34, N. R. C. Department transferred were functions 1977, ERDA’s In V). § 7151(a) (1976 ed., Supp. C. S.U.

Energy. 91 Stat. many promote continued Congress has legislation subsequent In g., e. See, power. preference to giving energy, without sources 3291, 42 U. C. 92 Stat. Act Use Fuel and Industrial Powerplant and other coal V) use (encouraging greater (1976 ed., Supp. seq. et Utility Regu Public gas petroleum); natural lieu of fuels alternative (1976 § 824a-3 C. 3144, 16 U. S. 1978, § 92 Stat. latory Act Policies and small cogeneration development of V) (encouraging ed., Supp. facilities). production In sum, required has not “go States to nuclear,” part. whole inor goals Act’s twin promote

were to development of a technology and en sure the of that technology. Although that Act re serves to the NRC decisions about operate how to build and plants, nuclear the Court reads too much into the inAct suggesting that it also limits the States’ power traditional types decide what electric Congres utilize. ssimply has made the option available, and a State may option decline any reason. Rather than rest on of'legislative elusive test motive, I therefore, would con clude that the decision whether to plants build nuclear re mains with the my States. In view, a ban on construction powerplants would be valid even if its authors were motivated fear of a core meltdown or other nuclear catastrophe.

Case Details

Case Name: Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission

Court Name: Supreme Court of the United States

Date Published: Apr 20, 1983

Citation: 461 U.S. 190

Docket Number: 81-1945

Court Abbreviation: SCOTUS