ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (C.A. No. 81-437) (C.A. No. 81-0419)
Before: ADAMS and WEIS, Circuit Judges, and VanARTSDALEN, District Judge*fn*
VanARTSDALEN, District Judge.
On March 28, 1979, and for a period of time thereafter, certain events occurred at the Three Mile Island nuclear energy electric generating plant located in Dauphin County, Pennsylvania, approximately fifteen miles downstream on the Susquehanna River from the state capitol in Harrisburg, Pennsylvania. Those events are alleged to have constituted a "nuclear incident."*fn1 The Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq., as amended by the popularly named Price-Anderson Act, Act of September 2, 1957, Pub. L. 85-256, 71 Stat. 576 (codified in scattered sections of 42 U.S.C.), defines a "nuclear incident" as:
[A]ny occurrence, including an extraordinary nuclear occurrence, within the United States causing, within or outside the United States, bodily injury, sickness, disease or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material....
Among the many lawsuits spawned by the March 28, 1979 events at Three Mile Island was an action for damages filed by the Commonwealth of Pennsylvania against the owners, operators, designers and builders of the facility. This action was filed in the Middle District of Pennsylvania and docketed as Civil Action 81-419. Another action was filed in the same district against the same defendants by the Township of Susquehanna, a first class township with its municipal offices located in Harrisburg, Dauphin County, Pennsylvania and the township of Lower Swatara, a second class township with its municipal offices located in Middletown, Dauphin County, Pennsylvania. The action by the two townships, docketed as Civil Action 81-437, was filed as a class action in which the township plaintiffs sought to represent a class consisting of all other municipalities and various public entities within a radius of one hundred miles of Three Mile Island. The action sought both monetary damages and equitable relief, including abatement of an alleged nuisance. Both Civil Action 81-419 and Civil Action 81-437 were consolidated in the district court and on this appeal.
Jurisdiction was asserted by plaintiffs under the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq., as amended by the Price-Anderson Act, Act of September 2, 1957, Pub. L. 85-256, 71 Stat. 576 (codified in scattered sections of 42 U.S.C.) and under 28 U.S.C. §§ 1337 & 1441. Pendent jurisdiction was also asserted as to pendent state causes of action.
Prior to the filing of any responsive pleading, the taking of any discovery or the establishing of any additional facts of record, and without filing any affidavit except as to a minor issue concerning one of the claims for damages, the defendants filed motions for summary judgment. After receiving briefs and hearing oral argument, the district court granted summary judgment in favor of all defendants against all plaintiffs, thus terminating the actions. In re TMI Litigation Governmental Entities Claims, 544 F. Supp. 853 (M.D. Pa. 1982).
Paragraph 17 of the township plaintiffs' complaint alleged as follows:
17. The activities of defendants as alleged hereinabove render the Three Mile Island facility a public nuisance and have caused plaintiffs and class members irreparable harm.
Township plaintiffs seek an order directing the defendants to abate the nuisance, and an order granting other appropriate relief in addition to claims for damages. The district court dismissed the claim for abatement of a public nuisance and for injunctive relief for failure to state a claim upon which relief can be granted. We find no error in this portion of the district court's order and such portion is affirmed.
Private litigants, including municipalities and political subdivisions may not maintain an action to enforce provisions of the Atomic Energy Act. The statute expressly provides that no action for violation of the Act shall be commenced except by the Attorney general of the United States. 42 U.S.C. § 2271(c); Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 237-239 (3d Cir. 1980), cert, denied, 449 U.S. 1096, 101 S. Ct. 893, 66 L. Ed. 2d 824 (1981).
The township plaintiffs also assert pendent jurisdiction over state causes of action. Plaintiffs therefore argue that, even if they are precluded from enforcing the Atomic Energy Act provisions, they may maintain a common-law equitable action to abate a public nuisance. It is apparent that plaintiffs' public nuisance claim is based on the contention that defendants' activities ...