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State of N.J., Dept. of Environmental Protection and Energy v. Long Island Power Authority

filed: July 19, 1994.

STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION AND ENERGY; JEANNE M. FOX, IN HER OFFICIAL CAPACITY AS ACTING COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION AND ENERGY
v.
LONG ISLAND POWER AUTHORITY; THOMAS DE JESU, IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE LONG ISLAND POWER AUTHORITY; UNITED STATES NUCLEAR REGULATORY COMMISSION; U.S. COAST GUARD, WITHIN THE UNITED STATES DEPARTMENT OF TRANSPORTATION; PHILADELPHIA ELECTRIC COMPANY, NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION AND ENERGY AND JEANNE M. FOX, COMMISSIONER OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION AND ENERGY, IN HER OFFICIAL CAPACITY, APPELLANTS



On Appeal from the United States District Court for the District of New Jersey. (D.C. Civil Action No. 93-cv-04269).

Before: Becker and Scirica, Circuit Judges and Pollak, District Judge*fn*

Author: Scirica

Opinion OF THE COURT

SCIRICA, Circuit Judge.

The New Jersey Department of Environmental Protection and Energy (NJDEPE) appeals the denial of its application to enjoin shipment of partially irradiated reactor fuel by barge through New Jersey coastal waters. NJDEPE claims the shipment violates the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347 (1988), because neither the Nuclear Regulatory Commission (NRC) nor the United States Coast Guard conducted an environmental assessment of the method and route of transportation. NJDEPE also claims certain licenses were improperly granted to the Philadelphia Electric Company (PECo) and the Long Island Power Authority (LIPA) by the NRC and the Coast Guard in violation of the Coastal Zone Management Act (CZMA), 16 U.S.C. §§ 1451-1464 (1988 and Supp. IV 1992), because neither PECo nor LIPA demonstrated its actions would be consistent with state coastal management laws.

We hold the district court properly dismissed NJDEPE's NEPA claim against the NRC for want of jurisdiction, and properly granted summary judgment on NJDEPE's CZMA claim in favor of the Coast Guard. We also rule on three claims the district court did not address. We will instruct the district court to grant summary judgment for the Coast Guard on NJDEPE's NEPA claim against it, dismiss the CZMA claim against the NRC for want of jurisdiction, and dismiss the CZMA claim against LIPA and PECo for failure to state a claim.

I.

A. Events leading to fuel shipment

The Shoreham Nuclear Power Station in Wading River, New York was licensed by the NRC in 1989 for full power operation but was never put into commercial operation. LIPA, a corporate municipal instrumentality and political subdivision of New York State, bought Shoreham from the original owner, the Long Island Lighting Company, and in 1992 began the process of decommissioning the plant by dismantling and removing or decontaminating its various components.

By February, 1993, the only remaining step in decommissioning the plant was disposal of its fuel, 560 bundles of uranium-235, containing an estimated radioactivity of 176,000 Curies.*fn1 On March 1, 1993, LIPA entered into an agreement with PECo and General Electric Co., under which PECo would accept delivery of Shoreham's nuclear fuel and General Electric would manage the project. PECo intended to use the almost new nuclear fuel in its Limerick Generating Plant near Pottstown, Pennsylvania. Under the agreement, LIPA was responsible for transporting the fuel.

On March 8, 1993, PECo applied to the NRC for an amendment to its operating license to allow it to receive the fuel. On March 31, the NRC published a notice of a proposed finding that the license amendment involved no significant environmental hazards under NEPA, 58 Fed. Reg. 16851, 16867-68 (1993), and that transport would be by rail. Id. at 16867. On May 18, pursuant to its regulations, the NRC published an Environmental Assessment of the proposed license amendment, along with a "Finding of No Significant Impact" (FONSI), which indicated that no Environmental Impact Statement was required. 58 Fed. Reg. 29010-11 (1993); see 10 C.F.R. §§ 51.21, 51.25*fn2 ; 42 U.S.C. § 4332(2)(C) (1988). The FONSI did not discuss the method or route of transportation of the fuel, but included a finding that the impact from transporting the nuclear fuel would be minimal, based on application of Table S-4, 10 C.F.R. § 51.52. The NRC issued the amendment June 23, 1993.

The parties disagree about when NJDEPE learned of LIPA's plans to ship by barge. NJDEPE states that at about the time the amendment was issued, LIPA informed NJDEPE that it was considering shipping the fuel by barge along New Jersey's coast. LIPA and PECo claim they had discussed barge shipment with NJDEPE at a number of meetings in May and June. In any event, NJDEPE asserts that in July it expressed objections to barge transport but after receiving no response from PECo or LIPA assumed that the barge shipment plan had been delayed or abandoned, until an Assistant Commissioner of NJDEPE read in a newspaper in mid-August that LIPA and PECo still intended to pursue the plan. NJDEPE also acknowledges receipt on August 9 from LIPA of an application for a state permit, a "Certificate of Handling," that indicated the plan to transport the fuel by barge.*fn3

On July 7, LIPA submitted a proposed "Operations Plan" to the Coast Guard's Captain of the Port of Long Island Sound describing the route, equipment, safety and emergency procedures of the barge shipment.*fn4 In a July 27 letter, the Captain of the Port stated that final approval was contingent on structural inspections of the barges, and gave directions for reporting positions and emergencies en route. NJDEPE states it did not see a copy of LIPA's plan until September 3.

LIPA planned shipment in specialized casks approved by the NRC for shipment of radioactive materials. Each cask weighs 130,000 pounds, and holds up to 17 fuel assemblies. The casks' manufacturer, non-party Pacific Nuclear Systems, Inc., asked the NRC to approve modifications in the support structure and packing of the casks to fit the Shoreham fuel assemblies. On May 11 and August 19, the NRC issued "Certificates of Compliance for Radioactive Materials Packages" to Pacific Nuclear Systems, approving the alterations. The cask is designed to contain fully irradiated fuel, which would be more than 100 times as radioactive as the Shoreham fuel.*fn5

On September 8, NJDEPE notified the Coast Guard by letter, with a copy to LIPA, that the CZMA, 16 U.S.C. § 1456(c)(3)(A), required LIPA to submit a "Consistency Certification" showing compliance with state coastal management law. On September 15, NJDEPE sent a similar letter to the National Oceanic and Atmospheric Administration .*fn6 On October 1, NOAA replied that no such submission was required. LIPA refused to refrain from shipping until it had submitted the requested certification.

Barge shipments commenced on September 24, 1993, with each barge carrying a single cask. A total of 33 shipments was planned. The barges left Long Island, travelled south through the Atlantic Ocean, at points within 15 miles of the New Jersey Coast, went around Cape May through New Jersey waters and up the Delaware River to dock at Eddystone, Pennsylvania. The fuel was then moved by rail to PECo's Limerick plant.

B. Litigation

On September 21, 1993, NJDEPE filed suit against the NRC, the Coast Guard, LIPA, and PECo, raising three counts.

Count I complained the NRC and the Coast Guard had violated NEPA by not preparing adequate "Environmental Assessments" when they approved the fuel shipment from LIPA to PECo because NEPA, 42 U.S.C. § 4332(2)(C), and an NRC regulation, 10 C.F.R. § 51.30, required assessment of the risks of and alternatives to the proposed method and route of transportation. Lacking this analysis, the Environmental Assessment of PECo's license amendment was "fatally flawed." Verified Complaint at 19, Joint Appendix (J.A.) at 24.

Count II claimed the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2282 (1988 & Supp. IV 1992), and an NRC regulation, 10 C.F.R. § 70.3, required LIPA to obtain an amendment to its license for its nuclear fuel or to its Decommissioning Plan before shipping the fuel.

Count III referred to the CZMA's requirement that applicants for certain federal licenses whose activity would affect a state's coastal zone submit certifications of consistency with the state's approved Coastal Zone Management program. 16 U.S.C. § 1456(c)(3)(A). NJDEPE claimed that Coast Guard approval of LIPA's transport plan and NRC approval of PECo's license amendment and of LIPA's transfer plans constituted such licenses, but lacked the required consistency certifications.

NJDEPE requested a temporary restraining order and a preliminary injunction against shipment until an adequate Environmental Assessment was done. LIPA claimed delay in decommissioning would cost $2-3 million per month in carrying costs and additional expenses for disruption of contractors' schedules. On September 22 the district court denied the motion for a temporary restraining order. On September 24 we denied a motion for an injunction pending appeal, and the same day Circuit Justice Souter denied a motion to stay our order.

On October 12, 1993, the district court ruled on NJDEPE's claims. Reading Count I as essentially a challenge to two final orders of the NRC -- the PECo license amendment and Pacific Nuclear System's Certificate of Compliance for its containers for radioactive materials -- the court dismissed the claim for want of jurisdiction, holding that under the Hobbs Act, 28 U.S.C. § 2342 (1988 & Supp. IV 1992), the court of appeals has exclusive jurisdiction of challenges to final orders of the NRC.

Count II was withdrawn by consent of the parties.

With respect to Count III, the court observed that the CZMA required a consistency certification only from an applicant for "a required Federal license or permit." 16 U.S.C. § 1456(c)(3)(A). Citing a finding by the National Oceanic and Atmospheric Administration that LIPA's submission of its transport plan was not an application for a required federal license or permit, and that the Coast Guard had not in fact issued a federal license or permit, the court found the CZMA requirements inapplicable.

NJDEPE appealed the orders on Counts I and III.*fn7 We accelerated the appeal and on December 1 heard oral argument. Because the parties expressed an urgent need for a quick resolution we issued an oral opinion from the bench, noting that a written opinion would follow. We held that all of NJDEPE's claims failed, and briefly set forth our reasons. We now write to explain our holding.*fn8

II.

NJDEPE invoked the subject matter jurisdiction of the district court under 28 U.S.C. §§ 1331 (1988) (federal question), 1361 (1988) (mandamus), 1337 (1988) (actions arising under acts of Congress regulating commerce), and 5 U.S.C. § 701-06 (1988) (Administrative Procedure Act). We have jurisdiction of the district court's dismissal and grant of summary judgment under 28 U.S.C. § 1291 (1988).

We have plenary review over whether the district court had subject matter jurisdiction. "'We accept as true the facts alleged in the complaint and all reasonable inferences that can be drawn from them.'" Boarhead Corp. v. Erickson, 923 F.2d 1011, 1016 (3d Cir. 1991) (citation omitted).

We have plenary review over the district court's grant of summary judgment. Public Interest Research Group, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 76 (3d Cir. 1990), cert. denied, 498 U.S. 1109, 112 L. Ed. 2d 1100, 111 S. Ct. 1018 (1991). "The appellate court is required to apply the same test the district court should have utilized initially. Inferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion." Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977).

III.

In its NEPA claims, NJDEPE contends that the NRC and the Coast Guard, through granting various licenses and permits, allowed transport of radioactive material without adequate environmental impact assessment.

A. The National Environmental Policy Act

NEPA aims to encourage "harmony between man and his environment," to "prevent or eliminate damage to the environment" and to "stimulate [human] health and welfare." 42 U.S.C. § 4321. To this end, it structures governmental decisionmaking in two respects:

"First, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process."

Limerick Ecology Action v. NRC, 869 F.2d 719, 725 (3d Cir. 1989) (quoting Baltimore Gas & Elec. Co v. Natural Resources Defense Council, 462 U.S. 87, 97, 76 L. Ed. 2d 437, 103 S. Ct. 2246 (1983)) (internal quotation and citation omitted). At issue here is NEPA's provision requiring that all federal agencies:

include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a ...


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