following the PSC's determination not to immediately suspend operation of
Plaintiff's use of the FAC. The Law, approved by both the Assembly and
the New York State Senate and signed by Governor Pataki, nullified the
already commenced PSC review process by directly ordering it to prohibit
Plaintiff from recovering from its ratepayers any costs associated with
replacing power from the February 15, 2000 outage at the Indian Point
Plant. The basis for this law is the legislative finding that "[b]y
continuing to operate steam generators known to be defective . . . the
Consolidated Edison Company failed to exercise reasonable care on behalf
of the health, safety and economic interests of its customers."
Plaintiff has asked this Court for a preliminary and permanent
injunction enjoining enforcement of the Indian Point Law. Furthermore,
Plaintiff has asked this Court to declare the Indian Point Law violative
of (1) the Equal Protection Clause of the 14th Amendment; (2) the
Procedural Due Process requirements of the 14th Amendment; (3) the
Supremacy Clause; (4) the Contracts Clause contained in Article 1, §
10; and (5) the Prohibition on Bill of Attainder also contained in
Article 1, § 10.
II. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment provides that
"no State shall . . . deny to any person within its jurisdiction the
equal protection of the laws." U.S. Const. amend. XIV, § 15. The
clause "is essentially a direction that all persons similarly situated
should be treated alike." City of Cleburne v. Cleburne Living Center,
473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (citing Plyler
v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)).
Legislation that does not restrict a fundamental right or employ a
suspect classification, like the social and economic legislation at issue
in this case, is presumed valid as long as it is rationally related to a
legitimate government interest. See Cleburne Living Center, 473 U.S. at
440, 105 S.Ct. 3249; Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620,
134 L.Ed.2d 855 (1996).
This presumption of validity is buttressed by the notion that
governments are entitled to wide deference when enacting social and
economic legislation. See Cleburne Living Center, 473 U.S. at 439, 105
S.Ct. 3249. It is not the job of a federal court to ascertain the wisdom
of a challenged statute or the utility of a questioned law. See id.;
Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 469, 101 S.Ct. 715,
66 L.Ed.2d 659 (1981). This does not mean that this Court is stripped of
its power to substantively review the legitimacy of social and economic
legislation. See, e.g., Dep't of Agriculture v. Moreno, 413 U.S. 528,
532, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973) (striking down a state statute
which limited receipt of food stamps to households of related individuals
while excluding households containing unrelated individuals as not
rationally related to the stated purposes of the Food Stamp Act); see
generally Zobel v. Williams, 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672
Rather, this Court must ascertain whether any set of facts exist that
may reasonably justify the challenged law. See McGowan v. Maryland,
366 U.S. 420, 425-426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). If this.
Court determines that a reasonable justification for the law exists, it
is required to uphold it. See, e.g., Vacco v. Quill, 521 U.S. 793, 807,
117 S.Ct. 2293, 138 L.Ed.2d 834 (1997) (finding a reasonable
justification to warrant classifying terminally ill patients who refuse
medical treatment differently from patients who wish to engage in
physician assisted suicide). Conversely, if this Court determines that the
legislature acted arbitrarily or classified Plaintiff upon some ground
not having a fair and substantial relation to the object of the act, such
that similarly situated persons are treated differently, it
must strike down the statute. See Reed v. Reed, 404 U.S. 71, 76, 92
S.Ct. 251, 30 L.Ed.2d 225 (1971); see also, F.S. Royster Guano Co. v.
Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920).
Defendants' lawyers contend that the legislature's determination to
create a statute directed at Plaintiff is simply a response to its
continued use of Westinghouse Model 44 steam generators. According to
them, because Plaintiff is the only nuclear operator in New York using
such generators, it is impossible for any other utility to pass similar
costs to its ratepayers. Therefore, the legislature rationally determined
that Plaintiff is a legitimate class of one.
Although this Court recognizes that after-the-fact rationalizations of
statutory classifications by lawyers and judges may serve to uphold the
validity of a challenged statute, see McDonald v. Board of Election,
394 U.S. 802, 809, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969), this
rationalization makes little sense when examined in light of the express
legislative findings accompanying the statute. According to these
findings, "the Con-Edison Company failed to exercise reasonable care on
behalf of the health, safety and economic interests of its customers."
Therefore, the legislature concluded, "it would not be in the public
interest for the company to recover from ratepayers any costs resulting
from the" Indian Point outage.
Hence, the Indian Point Law was not passed simply as a response to
Plaintiff's continued use of Model 44 generators. Instead, it was passed
in response to Plaintiff's failure to exercise reasonable care on behalf
of the health, safety, and economic interests of its customers. As such,
this Court must determine 1) whether any legitimate state interest
underlies this finding and 2) if the classification of Plaintiff is
rationally related to any such legitimate state interest.
B. Legitimate State Interest
To determine the legitimacy of a state interest, this Court should
begin its inquiry by examining the statute itself and its legislative
history. See Johnson v. Robison, 415 U.S. 361, 376, 94 S.Ct. 1160, 39
L.Ed.2d 389 (1974). As long as the purposes of the statute can be easily
ascertained from these sources, this Court should limit its inquiry to
them. See id. If these purposes do not offend specific constitutional
prohibitions, "when the legislature has spoken, the public interest has
been declared in terms well-nigh conclusive." Hawaii Housing Authority
v. Midkiff, 467 U.S. 229, 238, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984)
(quoting Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 99 L.Ed. 27
The stated purposes of the Indian Point Law are found in Section 1 of
the statute and the accompanying memorandum in support of the law.
According to Section 1 of the statute, it is not in the public interest
for the company to recover from ratepayers any costs resulting from
Plaintiff's failure to exercise reasonable care on behalf of its
customers. The memorandum in support of the law declares that the purpose
of the bill is to "protect rate-payers from costs related to imprudence
by Con-Edison Company (Con-Edison) in relation to a recent radiation leak
at the Indian Point 2 Nuclear Facility."
This Court does not dispute the legitimacy of the State's laudable
desire to deter negligence at nuclear power plants, protect rate payers,
and regulate utility rates. See Duquesne Light Co. v. Barasch,
488 U.S. 299, 109 S.Ct. 609, 102 L.Ed.2d 646 (1989). What this Court does
view as problematic is the completely irrational manner in which the
statute classifies Plaintiff in an effort to further these purposes.
C. Rational Relation of Legislature's Classification
A classification is rationally related to a legitimate government
as long as it does not place persons into "different classes on the basis
of criteria wholly unrelated to the objective of the state." Reed, 404
U.S. at 76, 92 S.Ct. 251. As long as the classification is "reasonable,
not arbitrary, and [rests] upon some ground of difference having a fair
and substantial relation to the object of the legislation, so that all
persons similarly circumstanced shall be treated alike," this Court will
uphold it. Id. (quoting F.S. Royster Guano Co., 253 U.S. at 415, 40 S.Ct.
560.) However, as this Court has stated, if the classification is "so
underinclusive" that it bears no relation to the statute's purpose, the
Court will strike it down. Long Island Lighting Co. v. Cuomo,
666 F. Supp. 370, 423 (N.D.N.Y. 1987).
In the instant case, the Court notes that the Indian Point Law singles
out Plaintiff with unparalleled specificity and forbids it from
recovering any costs associated from the Indian Point 2 shut-down. While
it may be true that Plaintiff should not recover costs associated from
the Indian Point 2 shut down, the Court fails to see how Plaintiff's
allegedly negligent action here justifies the creation of a statutory
class aimed directly at it. In particular, the Court sees absolutely no
difference between the allegedly negligent conduct at issue in this case
and any other case of nuclear power plant negligence normally brought
before the PSC.
For example, had the New York State Electric and Gas Corporation
engaged in negligent operation of its Nine Mile Point 2 nuclear power
plant, it would have been entitled to pass replacement costs onto its
customers until the PSC made a determination that the costs were incurred
because of imprudence. Further, such a determination would be reviewable
pursuant to Article 78 of the CPLR in the state courts. Yet, according to
Defendants, Plaintiff was denied this same exact right because its
negligence involved the use of a specific model of generator. In
essence, Defendants want this Court to accept the premise that because
only Plaintiff could be negligent as to these specific model generators
it did not have to draft a statute that applied to other similarly
situated nuclear power plant operators.
This Court rejected this argument long ago. Writing in Long Island
Lighting Co., Chief Judge Munson stated:
The fact that the terms of a statute, if drafted in
such a way that it applied to all like-situated
individuals, would in the legislature's estimation
actually affect only one of those individuals does not
justify drafting the statute in such a way that it
applies only to that individual and not to the others
who are similarly situated. This is akin to a small
community, believing that one particular individual is
prone to steal automobiles, passing an ordinance
prohibiting that individual from stealing automobiles
but not imposing a similar prohibition on all others
in the community. Clearly, such an ordinance would
offend the "element of neutrality that must always
characterize the performance of the sovereign's duty
to govern impartially."
Id. at 424 (citations omitted). Consequently, this Court concludes that
the classification of Plaintiff based upon its use of Model 44 generator
is arbitrary, does not rest upon some ground of difference fairly and
substantially related to the object of the statute, and treats similarly
situated nuclear power plant operators differently.
Moreover, this Court notes that there is some evidence to indicate that
the articulated purpose underlying this arbitrary classification is a
mere pretext for an impermissible purpose offending other constitutional
provisions. In particular, this Court notes that the legislative record is
replete with references that the Indian Point Law was passed to punish
Plaintiff for its negligence and existing high rates.*fn2 If this
legislative classification was upheld on the ground that punishing
Plaintiff was rationally related to the statute's purposes,
it would violate the most basic tenet of the Equal Protection Clause.
As the Supreme Court has emphatically stated, "if the constitutional
conception of `equal protection of the laws' means anything, it must at
the very least mean that a bare congressional desire to harm a
politically unpopular group cannot constitute a legitimate government
interest." United States Department of Agriculture v. Moreno, 413 U.S. at
534, 93 S.Ct. 2821. New York State's legislature is not free to "pick and
choose only a few to whom they will apply legislation and thus [ ] escape
the political retribution that might be visited upon them if larger
numbers were affected." Laurence Tribe, American Constitutional Law 998
(1978) (quoting Railway Express Agency, Inc. v. New York, 336 U.S. 106,
116, 69 S.Ct. 463, 93 L.Ed. 533 (1949)). For these reasons, the Indian
Point Law violates the Equal Protection Clause of the Fourteenth
Amendment of the Constitution.
This Court has no doubt that if the New York State Legislature passes a
law creating a higher standard of care for operators of nuclear plants in
comparison to other types of energy plants that applies to all similarly
situated nuclear plant operators, it would pass constitutional muster.
Moreover, this Court has no doubt that if the PSC ultimately determines
that Plaintiff acted negligently in failing to replace the generators at
Indian Point 2 and orders Plaintiff to refund all replacement costs to
its customers, that too would pass constitutional muster. Unfortunately,
neither of these two avenues were taken, leaving this Court no choice but
to strike down the Indian Point law as violative of the Equal Protection
III. Bill of Attainder
Plaintiff also argues that the Indian Point Law violates the
Constitutional Prohibition against passing any bill of attainder. Article
I, Section 10 of the Constitution provides that "[n]o State shall . . .
pass any bill of attainder."*fn3 An unlawful bill of attainder is any law
"that legislatively determines guilt and inflicts punishment upon an
identifiable individual without provision of the protections of a
judicial trial." Nixon v. Administrator of Gen. Servs., 433 U.S. 425,
468, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977).
Historically, the bill of attainder was a parliamentary device used in
sixteenth, seventeenth and eighteenth century England to sentence to
death one or more specified persons for attempting or threatening to
attempt to overthrow the government. See United States v. Brown,
381 U.S. 437, 441, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965). However, the
Supreme Court has held that:
the Bill of Attainder Clause was intended not as a
narrow, technical (and therefore soon to be outmoded)
prohibition, but rather as an implementation of the
separation of powers, a general safeguard against
legislative exercise of the judicial function, or more
simply — trial by legislature.
United States v. Brown, 381 U.S. at 442, 85 S.Ct. 1707. The Brown Court
went on to hold that "[t]he Bill of Attainder Clause not only was
intended as one implementation of the general principle of fractionalized
power, but also reflected the Framers' belief that the Legislative Branch
is not so well suited as politically independent judges and juries to the
task of ruling upon the blameworthiness of, and levying appropriate
punishment upon, specific persons."*fn4 Brown, 381 U.S. at 445, 85 S.Ct.
1707; see also McMullen v. United States, 989 F.2d 603, 607 (2d Cir.
The Court's opinion and the Clause's important purpose are borne out in
the writings of the Framers themselves. James Madison wrote:
The accumulation of all powers, legislative,
executive, and judiciary, in the same hands, whether
of one, a few, or many, and whether hereditary,
self-appointed, or elective, may justly be pronounced
the very definition of tyranny.
The Federalist, No. 47, at 373-74 (Hamilton ed. 1880). The Brown court
also cited the writings of Madison and Alexander Hamilton in finding