Petitioner
Pacific Gas & Electric Company
Respondent
State Energy Resources Conservation and Development Committee of California
Petitioner's Claim
That two California statutes governing development of nuclear power plants were preempted by the federal Atomic Energy Act of 1954 and were thus invalid under the Supremacy Clause of the Constitution.
Chief Lawyer for Petitioner
John R. McDonough
Chief Lawyer for Respondent
Laurence H. Tribe
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Warren E. Burger, Thurgood Marshall, Lewis F. Powell, Jr., William H. Rehnquist, Sandra Day O'Connor, John Paul Stevens, Byron R. White (writing for the Court)
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
20 April 1983
Decision
The Court having judged that one of the two statutes was not ripe for review,held that the remaining California law did not conflict with the authority of the federal government because it addressed issues of economics, not nuclear safety.
Significance
Pacific Gas & Electric Co. v. Energy Resources Commission providesa judicial framework for evaluating the limits of state and federal law withregard to specific areas of authority. In its review of the case, the Courtapplied a test--assessing the conflict, if any, between state and federal policies--that promised to offer guidelines for other cases involving preemptionof federal authority.
"Swords into Plowshares"
In the years that followed World War II, the federal government redirected the uses of nuclear energy which had powered the bombs dropped over Japan at the end of the war. Justice White of the Supreme Court, using a phrase drawn from the Bible, referred to "[t]he turning of swords into plowshares"--that is,"the transformation of atomic power into a source of energy in American society." To this end, Congress in 1946 authorized the civilian application of atomic power, and in that year it passed the Atomic Energy Act, which created the Atomic Energy Commission (AEC). For the next eight years, the federal government maintained full control over the use of nuclear technology. Then camethe Atomic Energy Act of 1954, which, as Justice White later noted, "grew outof Congress' determination that the national interest would be best served if the Government encouraged the private sector to become involved in the development of atomic energy for peaceful purposes."
Nuclear energy, of course, has not been without its attendant controversies over the potential dangers involved, including questions over disposal of nuclear waste--a key issue in Pacific Gas & Electric Co. v. Energy Resources Commission. A nuclear reactor must periodically have its fuel rods replaced, meaning that the radioactive waste fuel must be removed to a place where it will not be able to seep into the water table or otherwise contaminatenatural resources and endanger human lives. Because nuclear power plant operators originally assumed that the fuel would be reprocessed, storage pools made to hold it were relatively limited in capacity and design. Over time, however, it became clear that, for whatever reason, the fuel would not be reprocessed. This resulted in large stores of radioactive waste--8,000 metric tons ofit, according to the Court's record in 1983, a number expected to grow by afactor of nine in the years leading up to 2000. Over time, a variety of schemes had evolved for disposing of these wastes, including proposals to place itbeneath permanently frozen ice sheets in Greenland and Antarctica, or even to shoot it into space via rockets. The most likely of these proposals involved placing it in subsurface salt deposits.
Thus it was evident, as Justice White noted, that "problems of how and whereto store nuclear wastes [have] engendered considerable scientific, political,and public debate." The disposal of nuclear wastes involved not only safetyconsiderations but also economic concerns. The lack of any viable option forlong-term disposal would render nuclear energy an unpredictable resource, andtherefore an economically inefficient form of energy as well. The dual safety and economic concerns springing from the issue of nuclear-waste disposal set the stage for the issues debated in Pacific Gas.
Pacific Gas Takes on the Energy Commission
Responding to these concerns, in 1974 the State of California passed the Warren-Alquist State Energy Resources Conservation and Development Act. Under theact, which was amended in 1976 to add new regulations, operators of nuclearpower plants and other power-generating plants had to apply for certificationby the State Energy Resources Conservation and Development Commission, or "Energy Commission" for short. Out of the myriad statutes covered in the act, sections 25524.1(b) and 25524.2 became the subject of debate in the case before the Court. Section 25524.1(b) provided that the Energy Commission had the authority to determine, prior to the building of a new nuclear power plant, that there would be adequate storage space for the spent fuel rods "at the timesuch nuclear facility requires such storage." Section 25524.2 addressed long-term concerns arising from nuclear wastes by placing a moratorium, or stoppage, on the certification of new plants until the Energy Commission "finds that there has been developed and that the United States through its authorizedagency has approved and there exists a demonstrated technology or means for the disposal of high-level nuclear waste."
In 1978, Pacific Gas & Electric Company, along with another utility, Southern California Edison Company, filed an action against the Energy Commissionin federal district court. They requested a declaration that several provisions in the Warren-Alquist Act--including the two mentioned above--were invalid under the Supremacy Clause of the Constitution, which establishes the importance of the federal government's power over that of the states. Since Washington already had the Atomic Energy Act in place, the petitioners charged, Warren-Alquist had to be unconstitutional. The district court agreed.
The Court of Appeals for the Ninth Circuit held that the petitioners had standing to challenge the statute, but that 25524.1(b) was not "ripe for review"--i.e., the law had not been allowed sufficient tests in practice before its judicial review. The reason given for this was that "we cannot know whether the Energy Commission will ever find a nuclear plant's storage capacity to be inadequate." As for the challenge to 25524.2, the court judged that the nuclear moratorium provisions were not preempted by federal law because sections 271 and 274(k) of the Atomic Energy Act provided authorization for the states to regulate nuclear power plants "for purposes other than protection against radiation hazards."
As the case came before the Supreme Court, a number of parties filed briefs of amici curiae (friends of the court) on either side. Deputy SolicitorGeneral Claiborne argued for the United States as amicus curiae urging reversal, and the following entities filed briefs on the side of the petitioner: the Atomic Industrial Forum, Hans A. Bethe et al., the Edison ElectricInstitute, the Fusion Energy Foundation, the Legal Foundation of America, andthe Pacific Legal Foundation et al. A number of states, through their attorneys general or other officials, filed briefs of amici curiae urging affirmance: Alaska, Arizona, Arkansas, Connecticut, Hawaii, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Vermont, Washington, WestVirginia, Wisconsin, and Wyoming. In all, 31 states weighed in on the side of California, as did that state's Public Utilities Commission and the New England Legal Foundation.
An Economic Issue, Not a Safety Issue
The Court affirmed the court of appeals' ruling in a unanimous decision. Justice White, writing for the Court, first addressed the question of whether thestatutes were ripe for judicial review. Section 25524.1(b), he held, was notripe for review. With regard to that statute, White wrote that "a court should not stretch to reach an early, and perhaps a premature, decision regarding[it]." Section 25524.2 was ripe, for if power plants went ahead with their operations without knowing whether the moratorium imposed by the statute was valid, this "would impose a palpable and considerable hardship on the utilities, and may ultimately work harm on the citizens of California."
Given, then, that 25524.2 was ripe for review, White next turned to the question of preemption and found that the statute was not preempted by the AtomicEnergy Act. From the time the federal act was passed in 1954 until the present, White explained, Congress had maintained a system of dual regulation overnuclear plants: the federal government held control over safety issues, whereas the states exercised "their traditional authority over economic questionssuch as the need for additional generating capacity, the type of generating facilities to be licensed, land use, and ratemaking." The Court held that 25524.2 was directed toward economics, rather than safety, in its purpose and thus was fully within California's authority.
In no way, the Court further held, did 25524.2 conflict with national policy,even with a decision by the Nuclear Regulatory Commission (NRC) to allow continued licensing of reactors despite concerns regarding waste disposal. Again, the NRC's authority, as that of a federal nuclear regulatory agency, was inthe realm of safety, leaving states to make economic determinations regarding nuclear power. "And as there is no attempt on California's part," White wrote,
Furthermore, the Nuclear Waste Policy Act, enacted into law by Congress in 1982, did not appear to have been passed with the intention of superseding states' decision-making power with regard to waste disposal and the opening of new plants.
Finally, section 25524.2 did not in any way operate at cross-purposes to theaim embodied in the Atomic Energy Act of developing commercial uses for nuclear power. As the court of appeals had observed, Justice White wrote, "Promotion of nuclear power is not to be accomplished `at all costs.'" Instead, Congress had given the states authority to decide whether to build a nuclear plantor one using traditional fuel sources. "California's decision to exercise that authority," White held, "does not, in itself, constitute a basis for preemption."
Blackmun Upholds the Principle of a Safety Moratorium
Justice Blackmun, in an opinion joined by Justice Stevens, concurred in partand concurred in the judgment. He took issue, however, with the idea implicitin the Court's argument that a state motivated solely by safety concerns, rather than economic ones, lacked the authority to prohibit the construction ofnuclear plants. He then addressed the three reasons why the Court held thata safety-motivated decision to prohibit construction would be preempted: (1)"the Federal Government has occupied the entire field of nuclear safety"; (2)a state judgment on safety would place a state in conflict with the NRC; and(3) a moratorium on further plant construction would, in the Court's words,"be in the teeth of the Atomic Energy Act's objective to insure that nucleartechnology be safe enough for widespread development and use."
With regard to the first argument, Justice Blackmun held that Congress had not attempted to control the wide field of "nuclear safety concerns," only thesmaller realm of safe plant construction and operation. Thus if the federal government attempted to preempt the states, given the fact that its area of authority was not large enough to cover all contingencies, this would create a"regulatory vacuum." As for the second argument, the issue of conflict with the NRC, Blackmun held that while the NRC had authority to determine whether it was safe for construction of a plant to proceed, it was not in a position to order that such construction take place. Finally, with regard to the state's possible obstruction of federal goals regarding nuclear development, Blackmun maintained that the federal government's policy of encouraging nuclear development should not be interpreted as an attempt to prevent states from developing alternative sources of energy.
Impact
Pacific Gas did not serve to change the course of federal regulationsover nuclear power. Indeed, it weighed far less on nuclear power and the political issues involved than did Metropolitan Edison v. People Against Nuclear Energy (1983), decided the same year, or the famous Silkwood v. Kerr-McGee (1984) case. The significance of Pacific Gas lay in its illustration of concurrent powers, the operation of federal and state authorityin harmony. Its result was an affirmation of the power of federalist principles in the American political framework.
Related Cases
Pacific Gas & Electric Company
Respondent
State Energy Resources Conservation and Development Committee of California
Petitioner's Claim
That two California statutes governing development of nuclear power plants were preempted by the federal Atomic Energy Act of 1954 and were thus invalid under the Supremacy Clause of the Constitution.
Chief Lawyer for Petitioner
John R. McDonough
Chief Lawyer for Respondent
Laurence H. Tribe
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Warren E. Burger, Thurgood Marshall, Lewis F. Powell, Jr., William H. Rehnquist, Sandra Day O'Connor, John Paul Stevens, Byron R. White (writing for the Court)
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
20 April 1983
Decision
The Court having judged that one of the two statutes was not ripe for review,held that the remaining California law did not conflict with the authority of the federal government because it addressed issues of economics, not nuclear safety.
Significance
Pacific Gas & Electric Co. v. Energy Resources Commission providesa judicial framework for evaluating the limits of state and federal law withregard to specific areas of authority. In its review of the case, the Courtapplied a test--assessing the conflict, if any, between state and federal policies--that promised to offer guidelines for other cases involving preemptionof federal authority.
"Swords into Plowshares"
In the years that followed World War II, the federal government redirected the uses of nuclear energy which had powered the bombs dropped over Japan at the end of the war. Justice White of the Supreme Court, using a phrase drawn from the Bible, referred to "[t]he turning of swords into plowshares"--that is,"the transformation of atomic power into a source of energy in American society." To this end, Congress in 1946 authorized the civilian application of atomic power, and in that year it passed the Atomic Energy Act, which created the Atomic Energy Commission (AEC). For the next eight years, the federal government maintained full control over the use of nuclear technology. Then camethe Atomic Energy Act of 1954, which, as Justice White later noted, "grew outof Congress' determination that the national interest would be best served if the Government encouraged the private sector to become involved in the development of atomic energy for peaceful purposes."
Nuclear energy, of course, has not been without its attendant controversies over the potential dangers involved, including questions over disposal of nuclear waste--a key issue in Pacific Gas & Electric Co. v. Energy Resources Commission. A nuclear reactor must periodically have its fuel rods replaced, meaning that the radioactive waste fuel must be removed to a place where it will not be able to seep into the water table or otherwise contaminatenatural resources and endanger human lives. Because nuclear power plant operators originally assumed that the fuel would be reprocessed, storage pools made to hold it were relatively limited in capacity and design. Over time, however, it became clear that, for whatever reason, the fuel would not be reprocessed. This resulted in large stores of radioactive waste--8,000 metric tons ofit, according to the Court's record in 1983, a number expected to grow by afactor of nine in the years leading up to 2000. Over time, a variety of schemes had evolved for disposing of these wastes, including proposals to place itbeneath permanently frozen ice sheets in Greenland and Antarctica, or even to shoot it into space via rockets. The most likely of these proposals involved placing it in subsurface salt deposits.
Thus it was evident, as Justice White noted, that "problems of how and whereto store nuclear wastes [have] engendered considerable scientific, political,and public debate." The disposal of nuclear wastes involved not only safetyconsiderations but also economic concerns. The lack of any viable option forlong-term disposal would render nuclear energy an unpredictable resource, andtherefore an economically inefficient form of energy as well. The dual safety and economic concerns springing from the issue of nuclear-waste disposal set the stage for the issues debated in Pacific Gas.
Pacific Gas Takes on the Energy Commission
Responding to these concerns, in 1974 the State of California passed the Warren-Alquist State Energy Resources Conservation and Development Act. Under theact, which was amended in 1976 to add new regulations, operators of nuclearpower plants and other power-generating plants had to apply for certificationby the State Energy Resources Conservation and Development Commission, or "Energy Commission" for short. Out of the myriad statutes covered in the act, sections 25524.1(b) and 25524.2 became the subject of debate in the case before the Court. Section 25524.1(b) provided that the Energy Commission had the authority to determine, prior to the building of a new nuclear power plant, that there would be adequate storage space for the spent fuel rods "at the timesuch nuclear facility requires such storage." Section 25524.2 addressed long-term concerns arising from nuclear wastes by placing a moratorium, or stoppage, on the certification of new plants until the Energy Commission "finds that there has been developed and that the United States through its authorizedagency has approved and there exists a demonstrated technology or means for the disposal of high-level nuclear waste."
In 1978, Pacific Gas & Electric Company, along with another utility, Southern California Edison Company, filed an action against the Energy Commissionin federal district court. They requested a declaration that several provisions in the Warren-Alquist Act--including the two mentioned above--were invalid under the Supremacy Clause of the Constitution, which establishes the importance of the federal government's power over that of the states. Since Washington already had the Atomic Energy Act in place, the petitioners charged, Warren-Alquist had to be unconstitutional. The district court agreed.
The Court of Appeals for the Ninth Circuit held that the petitioners had standing to challenge the statute, but that 25524.1(b) was not "ripe for review"--i.e., the law had not been allowed sufficient tests in practice before its judicial review. The reason given for this was that "we cannot know whether the Energy Commission will ever find a nuclear plant's storage capacity to be inadequate." As for the challenge to 25524.2, the court judged that the nuclear moratorium provisions were not preempted by federal law because sections 271 and 274(k) of the Atomic Energy Act provided authorization for the states to regulate nuclear power plants "for purposes other than protection against radiation hazards."
As the case came before the Supreme Court, a number of parties filed briefs of amici curiae (friends of the court) on either side. Deputy SolicitorGeneral Claiborne argued for the United States as amicus curiae urging reversal, and the following entities filed briefs on the side of the petitioner: the Atomic Industrial Forum, Hans A. Bethe et al., the Edison ElectricInstitute, the Fusion Energy Foundation, the Legal Foundation of America, andthe Pacific Legal Foundation et al. A number of states, through their attorneys general or other officials, filed briefs of amici curiae urging affirmance: Alaska, Arizona, Arkansas, Connecticut, Hawaii, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Vermont, Washington, WestVirginia, Wisconsin, and Wyoming. In all, 31 states weighed in on the side of California, as did that state's Public Utilities Commission and the New England Legal Foundation.
An Economic Issue, Not a Safety Issue
The Court affirmed the court of appeals' ruling in a unanimous decision. Justice White, writing for the Court, first addressed the question of whether thestatutes were ripe for judicial review. Section 25524.1(b), he held, was notripe for review. With regard to that statute, White wrote that "a court should not stretch to reach an early, and perhaps a premature, decision regarding[it]." Section 25524.2 was ripe, for if power plants went ahead with their operations without knowing whether the moratorium imposed by the statute was valid, this "would impose a palpable and considerable hardship on the utilities, and may ultimately work harm on the citizens of California."
Given, then, that 25524.2 was ripe for review, White next turned to the question of preemption and found that the statute was not preempted by the AtomicEnergy Act. From the time the federal act was passed in 1954 until the present, White explained, Congress had maintained a system of dual regulation overnuclear plants: the federal government held control over safety issues, whereas the states exercised "their traditional authority over economic questionssuch as the need for additional generating capacity, the type of generating facilities to be licensed, land use, and ratemaking." The Court held that 25524.2 was directed toward economics, rather than safety, in its purpose and thus was fully within California's authority.
In no way, the Court further held, did 25524.2 conflict with national policy,even with a decision by the Nuclear Regulatory Commission (NRC) to allow continued licensing of reactors despite concerns regarding waste disposal. Again, the NRC's authority, as that of a federal nuclear regulatory agency, was inthe realm of safety, leaving states to make economic determinations regarding nuclear power. "And as there is no attempt on California's part," White wrote,
to enter the field of developing and licensing nuclear wastedisposal technology, a field occupied by the Federal Government, 25524.2 is not preempted any more by the NRC's obligations in the waste disposal field than by its licensing power over the plants themselves.
Furthermore, the Nuclear Waste Policy Act, enacted into law by Congress in 1982, did not appear to have been passed with the intention of superseding states' decision-making power with regard to waste disposal and the opening of new plants.
Finally, section 25524.2 did not in any way operate at cross-purposes to theaim embodied in the Atomic Energy Act of developing commercial uses for nuclear power. As the court of appeals had observed, Justice White wrote, "Promotion of nuclear power is not to be accomplished `at all costs.'" Instead, Congress had given the states authority to decide whether to build a nuclear plantor one using traditional fuel sources. "California's decision to exercise that authority," White held, "does not, in itself, constitute a basis for preemption."
Blackmun Upholds the Principle of a Safety Moratorium
Justice Blackmun, in an opinion joined by Justice Stevens, concurred in partand concurred in the judgment. He took issue, however, with the idea implicitin the Court's argument that a state motivated solely by safety concerns, rather than economic ones, lacked the authority to prohibit the construction ofnuclear plants. He then addressed the three reasons why the Court held thata safety-motivated decision to prohibit construction would be preempted: (1)"the Federal Government has occupied the entire field of nuclear safety"; (2)a state judgment on safety would place a state in conflict with the NRC; and(3) a moratorium on further plant construction would, in the Court's words,"be in the teeth of the Atomic Energy Act's objective to insure that nucleartechnology be safe enough for widespread development and use."
With regard to the first argument, Justice Blackmun held that Congress had not attempted to control the wide field of "nuclear safety concerns," only thesmaller realm of safe plant construction and operation. Thus if the federal government attempted to preempt the states, given the fact that its area of authority was not large enough to cover all contingencies, this would create a"regulatory vacuum." As for the second argument, the issue of conflict with the NRC, Blackmun held that while the NRC had authority to determine whether it was safe for construction of a plant to proceed, it was not in a position to order that such construction take place. Finally, with regard to the state's possible obstruction of federal goals regarding nuclear development, Blackmun maintained that the federal government's policy of encouraging nuclear development should not be interpreted as an attempt to prevent states from developing alternative sources of energy.
Impact
Pacific Gas did not serve to change the course of federal regulationsover nuclear power. Indeed, it weighed far less on nuclear power and the political issues involved than did Metropolitan Edison v. People Against Nuclear Energy (1983), decided the same year, or the famous Silkwood v. Kerr-McGee (1984) case. The significance of Pacific Gas lay in its illustration of concurrent powers, the operation of federal and state authorityin harmony. Its result was an affirmation of the power of federalist principles in the American political framework.
Related Cases
- Power Reactor Development Co. v. Electrical Workers, 367 U.S. 396(1961).
- Metropolitan Edison v. People Against Nuclear Energy, 460 U.S. 766(1983).
- Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984).
- New York v. United States, 505 U.S. 144 (1992).
User Comments Add a comment…