Pacific Legal Foundation v. State Energy Resources Conservation & Development Commission

These are consolidated appeals from two district court decisions, 489 F.Supp. 699 , 472 F.Supp. 191 , invalidating portions of California’s Warren-Alquist Act. The WarrenAlquist Act regulates all electric plants in California and imposes a moratorium on the construction of new nuclear plants. The courts below held that insofar as the challenged provisions regulate nuclear plants, they are preempted by the federal Atomic Energy Act, 42 U.S.C. §§ 2011-2282 (1976 & Supp. III 1979).

*907 We find that on the records before us, only two of the challenged provisions are ripe for review: the moratorium provision and the requirement that utilities submit three alternate sites for their proposed plants. On the merits, we hold that the Atomic Energy Act does not preempt state laws enacted for purposes other than protection against radiation hazards. Because the moratorium provision and the three-site requirement were enacted for purposes other than protection against radiation hazards, we conclude that they are not preempted.

I

BACKGROUND

A. The Warren-Alquist Act and the Nuclear Laws

The Warren-Alquist State Energy Resources Conservation and Development Act, Cal.Pub.Res.Code §§…

concurring:

While I concur in the disposition reached in regard to the merits of the plaintiffs’ preemption claims, I write separately because Congress has not granted a private cause of action to the plaintiffs.

The majority opinion correctly analyzes the standing of each of the plaintiffs to prosecute these lawsuits in terms of the familiar indicia of particularized injury, causation, and the court’s capacity to provide redress. It does not, however, address the related question of whether Congress, in enacting the Atomic Energy Act, intended that private entities such as these plaintiffs be empowered to bring lawsuits seeking to impose on the states their own interpretations of the Act. It is my opinion that none of the plaintiffs have any enforcement rights pertaining to the provisions of the Atomic Energy Act. 1

The plaintiffs in the two cases involved in these appeals seek a judicial determination that various California statutes are unconstitutional, as violations of the Supremacy *929 Clause. The Supremacy Clause itself, of course, grants no substantive rights, and a litigant who claims its protection must be able to point to another source for the substantive right —…