The opinion of the court was delivered by: ALTIMARI
Plaintiffs in two related lawsuits move to remand, pursuant to 28 U.S.C. § 1447(c), the instant actions commenced in the Supreme Court of the State of New York, Albany County, and the Supreme Court of the State of New York, Suffolk County, respectively, back from whence they came.
Defendant removed the actions to this Court under 28 U.S.C. § 1441(a) and (b) on the ground that this Court has original jurisdiction under 28 U.S.C. §§ 1331 and 1337, because the actions arise under the Constitution and laws of the United States, particularly the Supremacy Clause and the Fourteenth Amendment, as well as the Atomic Energy Act, 42 U.S.C. § 2011 et seq. ("AEA") and its implementing regulations as adopted by the Nuclear Regulatory Commission ("NRC"). Defendant cross-moves pursuant to Fed. R. Civ. P. 42(a) to consolidate these actions with one presently pending before the Court, Citizens for an Orderly Energy Policy, Inc. v. County of Suffolk, No.CV-83-4966 (hereinafter the "Citizens' action").
The principal underlying dispute between the parties is whether Long Island Lighting Company's ("LILCO") Shoreham Nuclear Power Facility ("Shoreham") can be operated safely. As Judge Cardamone recently observed, "The uncertainty about whether [Shoreham] can be operated safely has stirred deep public concern. Shoreham's critics contend that as the beauty of the Acropolis symbolizes the Golden Age of ancient Greece, an unsightly, deserted nuclear power plant will symbolize Twentieth Century America. Its defenders claim that a safe-working nuclear plant producing electricity, as in France, Britain, Japan and Germany, will free America from dependence on foreign oil and symbolize the triumph of technology over the loss of natural resources." County of Suffolk v. Long Island Lighting Co., 728 F.2d 52, 55 (2d Cir. 1984). Like Judge Cardamone, however, "we are not called upon to answer these questions involving large benefits and risks. . . ." Id. Neither must we answer the question of whether the actions of the County of Suffolk (hereinafter the "County") in failing to participate in off-site emergency planning for Shoreham are preempted by the AEA. We need only decide whether LILCO and Mario M. Cuomo properly removed these actions to the United States District Court.
The County's complaint
seeks a declaration that LILCO's implementation of its radiological emergency response plan, which is referred to as the "Transition Plan" (hereinafter the "Plan"), is unlawful and in violation of the Constitution and laws of the State of New York.Citing, N.Y. Const. arts. 3, 9; N.Y. Exec. Law, art. 2-B (McKinney 1982 & Supp. 1983); N.Y. Mun. Home Rule Law § 10 (McKinney 1969 & Supp. 1983).
LILCO submitted the Plan to the NRC as part of the licensing proceedings for Shoreham. The County and the Governor of the State of New York, Honorable Mario M. Cuomo, having determined that no safety evacuation plan is feasible, took no part in submitting the Plan to the NRC and state that they will not participate in implementing it. Thus, the Plan was developed and submitted to the NRC by LILCO alone.
Paragraph fifteen of the County's complaint states that LILCO has created the "Local Emergency Response Organization" (hereinafter the "LERO") for the purpose of implementing the Plan. The LERO is staffed by approximately two thousand (2,000) persons, most of whom are LILCO employees and none of whom are officials of the County or the State of New York we are told.
Paragraph seventeen of the County's complaint states in part that:
"In the event of a nuclear accident at Shoreham, LILCO's Transition Plan provides that LILCO, through its alter ego LERO, and without consent or approval by, or participation of, Suffolk County or the State of New York, will arrogate to itself functions purporting to protect the health, welfare and safety of residentsand transients within Suffolk County. The offsite emergency response to the accident for a distance of fifty miles from that plant will, under LILCO's Trnasition Plan, be under the management, direction and control of LILCO. Those public safety functions which are possessed inherently by local and state government officials for exercise through the police power will, according to LILCO's Transition Plan, be possessed and exercised by LILCO employees."
Subparagraphs of paragraph seventeen describe the functions LERO will perform in some detail.
In paragraph nineteen of its complaint, the County states that "LILCO has asserted that it has the necessary legal authority to implement its Transition Plan and "to effectively protect the safety and health of the public." Quoting, LILCO Transition Plan at p. 1.4-1.
Taking issue with LILCO's position, the County claims that under the Constitution and laws of the State of New York, "the police power is inherent in and can be possessed and exercised only by the State of New York itself or by a political subdivision of the State if there has been a proper delegation of authority from the State to such subdivision." Complaint par. 20. Further, the County claims that the State has delegated its police powers within Suffolk County only to the Government of Suffolk County, and has not delegated its police powers to LILCO.
Accordingly, the County states in paragraph twenty-one of the complaint that:
"An actual and justiciable controversy exists between the plaintiff and the defendant concerning the legality, under the Constitution and laws of the State of New York, of LILCO implementing its Transition Plan. A resolution of this dispute is necessary because LILCO is representing that it has authority under the laws of the State of New York to implement the Transition Plan . . . which usurps the police power authority of the State of New York and Suffolk County -- and LILCO is implementing that Plan. LILCO's acts in implementing such [a plan] have violated, are violating and will violate the Constitution and laws of the State of New York."
The County seeks a declaratory judgment, pursuant to N.Y. Civ. Prac. Law § 3001,
that LILCO's implementation of its Plan is unlawful and illegal ...