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CITIZENS FOR AN ORDERLY ENERGY POLICY, INC. v. COU

March 18, 1985

CITIZENS FOR AN ORDERLY ENERGY POLICY, INC., et al., Plaintiffs against THE COUNTY OF SUFFOLK and PETER F. COHALAN, Defendants, LONG ISLAND LIGHTING COMPANY and THE SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, Intervenor - Plaintiffs


The opinion of the court was delivered by: ALTIMARI

ALTIMARI, D.J.

MEMORANDUM AND ORDER

 The present controversy centers around the County of Suffolk's lack of participation in off-site radiological emergency evacuation planning for the Long Island Lighting Company's ("LILCO") Shoreham Nuclear Power Facility ("Shoreham"), an 809 megawatt nuclear powered electric generating facility located on Long Island's north shore in the County of Suffolk (the "County"). LILCO and its supporters contend that the County's actions may result in the denial of an operating license for Shoreham and spell financial doom and bankruptcy for the company. The County and its supporters, including the Governor of the State of New York, see Cuomo v. Long Island Lighting Co., 589 F. Supp. 1387 (1984), contend that in the event of a nuclear accident a Shoreham, safe and speedy evacuation is a geographical impossibility, and that the County may rightly refuse to participate in any emergency planning.

 FACTS

 Plaintiffs, Citizens for an Orderly Energy Policy, Inc., a not-for-profit corporation, and five of its members (hereinafter collectively referred to as "Citizens" or "Plaintiffs") commenced this action on or about November 10, 1983. Thereafter on April 11, 1984, the Court granted LILCO and the Shoreham-Wading River Central School District (the "District") leave to intervene as plaintiffs. See 101 F.R.D. 497 (1984).

 Citizens' complaint alleges the following. In early 1975, the County started to assist LILCO in the development of an emergency plan for Shoreham. This spirit of cooperation is said to have lasted until early 1982 when the Suffolk County Legislature adopted the first of three resolutions.

 On March 23, 1982, the legislature adopted resolution No. 262-1982. That resolution, in relevant part, directs the Suffolk County Planning Department to prepare "a County Radiological Emergency Response Plan to serve the interest of safety, health and welfare of the residents of Suffolk County. . . ." The resolution further stated that the plan was not to be submitted to the Federal Emergency Management Agency ("FEMA") and the Nuclear Regulatory Commission ("NRC") until approved by the County Legislature.

 Resolution No. 456-1982, adopted on May 18, 1982, provides that the County has the primary responsibility for the protection of its residents in the event of a nuclear accident at Shoreham; that the County "intends through good faith and sound planning efforts to assure that the best possible emergency plan and preparedness are developed"; and that LILCO has "gone beyond its powers as a private corporation in an attempt to usurp the rightful powers of Suffolk County." In addition the resolution provided that

 
Suffolk County shall not assign funds or personnel to test or implement any radiological emergency response plan for the Shoreham Nuclear Plant unless that plan has been fully developed to the best of the County's ability.
 
Suffolk County shall not assign funds or personnel to test or implement any radiological emergency response plan for the Shoreham Nuclear Plant unless that plan has been the subject of at least two public hearings, one to be held in Riverhead, and one to be held in Hauppauge.
 
Suffolk County shall not assign funds or personnel to test or implement any radiological emergency response plan for the Shoreham Nuclear Plant unless that plan has been approved, after public hearings, by the Suffolk County Legislature and the County Executive.

 The third and central resolution, No. 111-1983, was adopted on February 17, 1983. In sum, the six page resolution states that after extensive study the legislature determined that no emergency plan could adequately protect the health and safety of the County's residents and, therefore, no local plan was to be adopted or implemented. Accordingly, the County's radiological emergency planning process was terminated and the County Executive was "directed to take all actions necessary to assure that actions taken by any other governmental agency, be it state or federal, are consistent with the decisions mandated by this Resolution."

 Plaintiffs allege that the County's resolutions "were enacted solely on the basis of a perceived need to protect the public from the dangers of nuclear power." Complaint at par. 21. They assert that the County's resolutions express an intent to refuse to develop or consider any emergency plan and to determine the adequacy of all radiological response plans in an attempt to regulate the operation o Shoreham on the basis of radiological hazards and safety, a field preempted by federal law. In addition, they contend that the County's decision that no emergency plan could adequately protect the public health and safety is in conflict with the NRC's responsibility to determine such issues and frustrates the federal policy of encouraging the development of nuclear power. Accordingly, plaintiffs seek a judgment declaring the above resolutions void and illegal as preempted by the Atomic Energy Act (the "AEA"). 42 U.S.C. § 2011, et. seq.

 For their state law cause of action, plaintiffs contend that the County has a state constitutional duty to protect the health, safety and welfare of its residents, see N.Y. Const. art. 9, § 2(c)(10), and a statutory duty to prepare a local disaster preparedness plan and to provide assistance and relief in the event of a radiological emergency. See N.Y. Exec. Law §§ 20, 23, 25 (McKinney 1982). Plaintiffs maintain that the County's refusal to participate in emergency planning and its intended refusal to act should an accident occur are contrary to the County's duty. For their relief, plaintiffs seek an injunction requiring the Suffolk County Planning Department to develop or assist in the development of a radiological emergency response plan for Shoreham and requiring the County to make available all necessary resources in order to protect the health and safety of its residents.

 LILCO's intervenor complaint makes two claims for relief. First, it endorses plaintiffs' argument that the County's resolutions and acts "constitute an impermissible attempt by a local government to regulate and prevent the operation of a commercial nuclear power station on grounds . . . regarding radiological safety" and are, therefore, preempted by the AEA. LILCO Complaint at par. 57. Second, LILCO alleges that "defendants' about-face regarding emergency planning for Shoreham, predicated as it was on an impermissible usurpation of the NRC's exclusive regulatory authority, constitutes an arbitrary, capricious, and malicious deprivation of LILCO's property without due process of law." Id. at par. 58; see LILCO complaint par. 56. By way of relief, LILCO seeks a judgment declaring the resolutions in question void and illegal. In addition, unlike Citizens, LILCO seeks an injunction under 42 U.S.C. § 1983 and the due process clause of the United States Constitution "requiring Suffolk County and [Peter Cohalan to fulfill their duty to exercise their governmental functions fairly by taking all reasonable steps necessary to assist LILCO in emergency planning for Shoreham."

 Lastly, the district's intervenor complaint is essentially identical to Citizens but adds that defendants' acts have specifically violated the AEA and give rise to jurisdiction under the AEA itself.

 Defendants move to dismiss the original and intervenor complaints pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). While defendants challenge Citizens' standing to maintain the action and have raised other jurisdictional questions, and while "[i]ntervention cannot cure any jurisdictional defect that would have barred the . . . court from hearing the original action," 7A C. Wright & A. Miller, Federal Practice and Procedure, § 1917, at 584 (1972), the court has decided to address the three motions to dismiss in one opinion regardless of the determination on Citizens' standing. The court follows this procedure because if Citizens is without standing, LILCO's pleading would be considered as a separate action with an independent basis for jurisdiction over defendants. Failure to adjudicate LILCO's claim would merely require LILCO to file a new suit and bring the parties to the point where they now stand after an unnecessary delay. See Miller & Miller Auctioneers, Inc. v. G.W. Murphy Industries, Inc., 472 F.2d 893, 895-96 (10th Cir. 1973); Hackner v. Guaranty Trust Co., 117 F.2d 95 (2d Cir.), cert. denied, 313 U.S. 559, 85 L. Ed. 1520, 61 S. Ct. 835 (1941); Corporation Venezola de Fomento v. Vintero Sales Corp., 477 F. Supp. 615, 622 (S.D.N.Y. 1979). Moreover, while it is sometimes said that an intervenor accepts the pleadings as he finds them and may not add a claim, for much the same practical reason of avoiding unnecessary delay, and because defendants have not objected and have addressed the issue, it is proper for LILCO to prosecute its additional claim under the Civil Rights Act.

 DISCUSSION

 I

 Initially, the County challenges this court's jurisdiction over this action. Citizens contends that this action arises under federal law. See 28 U.S.C § 1331. Specifically, Citizens cites the Constitution's supremacy clause, U.S. Const. art. VI, § 2, which is the basis of the preemption doctrine, and the Atomic Energy Act. 28 U.S.C. § 2011 et seq. The intervenors echo Citizens' contentions. The defendants maintain that Citizens' action does not arise under the supremacy clause because plaintiffs are incorrect in their assertion that the County's actions are preempted by the AEA. The defendants also argue that a cause of action may not arise solely under the supremacy clause, because that clause is not a source of federal rights. Additionally, the defendants contend that Citizens' action may not be said to arise under the AEA because the AEA expressly precludes private actions to enforce its terms and the plaintiffs have alleged no substantive violation of the AEA.

 An action may be said to arise under an Act of Congress if it presents an issue requiring construction or interpretation of the Act. Ivy Broadcasting Co. v. American Telephone and Telegraph Co., 391 F.2d 486, 493 (2d Cir. 1968); T. B. Harms Co. v. Eliscu, 339 F.2d 823, 828 (2d Cir. 1964), cert. denied, 381 U.S. 915, 14 L. Ed. 2d 435, 85 S. Ct. 1534 (1965). Note, The Outer Limits of "Arising Under," 54 N.Y.U. L. Rev. 978, 1004, (1979).

 In the instant case, the critical issue, at least with regard to Citizens' federal cause of action, is whether the AEA preempts the County's resolutions. This issue turns squarely on the construction and interpretation of the AEA. Plaintiff's first claim for relief, along with the identical claims of the intervenors, must necessarily arise under the AEA, notwithstanding that the AEA does not provide for private enforcement of its terms. See Susquehanna Valley Alliance v. Three Mile Island, 619 F.2d 231, 238 (3d Cir. 1980), ("'no action' language in 42 U.S.C. § 2271(c) is not couched in jurisdictional terms"), cert. denied, sub nom, General Public Utilities Corp. v. Susquehanna Valley Alliance, 449 U.S. 1096, 66 L. Ed. 2d 824, 101 S. Ct. 893 (1981).

 As this court recently stated in a related case involving most of the parties now before the court:

 
the fact that plaintiffs could not have originally commenced this action in this Court under the AEA [does not necessarily bar] removal of their actions to the federal court. So long as a federal questionappears on the face of plaintiffs' complaint . . . removal would be proper.

 Cuomo v. Long Island Lighting Co., 589 F. Supp. at 1395. Moreover, as another judge of this court has stated, "[t]he availability of a federal remedy is unnecessary to create 'arising under' jurisdiction as long as plaintiffs' right to relief depends upon the construction or application of federal law." County of Suffolk v. Long Island Lighting Co., 1250, 1257 (E.D.N.Y. 1982). In fact, plaintiffs do not allege a violation of the terms of the AEA or seek relief thereunder. Instead they seek relief under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, by way of a judgment declaring defendants' acts illegal and void as preempted by federal law.

 Accordingly, in cases most analogous to the one at bar, courts have exercised jurisdiction and reached the merits of the controversy before them. For example, in United States v. City of New York, 463 F. Supp. 604 (S.D.N.Y. 1976), plaintiff sought a judgment declaring section 175.107(c) of the New York City Health Code unconstitutional insofar as it had been preempted by the AEA. The Court concluded that it had jurisdiction over plaintiff's claim since it arose under the AEA. Id. at 607. Other cases are not to the contrary. ...


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