US SUPREME COURT DECISIONS

Section 25524.1(b) of the California Public Resources Code provides that before a nuclear powerplant may be built, the State Energy Resources Conservation and Development Commission must determine on a case-by-case basis that there will be "adequate capacity" for interim storage of the plant's spent fuel at the time the plant requires such storage. Section 25524.2 imposes a moratorium on the certification of new nuclear plants until the State Commission finds that there has been developed, and that the United States through its authorized agency has approved, a demonstrated technology or means for the permanent and terminal disposal of high-level nuclear wastes. Petitioner electric utilities filed an action in Federal District Court seeking a declaration that these provisions, inter alia, are invalid under the Supremacy Clause because they were preempted by the Atomic Energy Act of 1954. The District Court, after finding that the issues presented by the two provisions were ripe for adjudication, held that they were preempted by and in conflict with the Atomic Energy Act. The Court of Appeals agreed that the challenge to § 25524.2 was ripe for review, but found that the challenge to § 25524. 1(b) v. as not, because it could not be known whether the State Commission will ever find a nuclear plant's storage capacity to be inadequate. The court went on to hold that § 25524.2 was not designed to provide protection against radiation hazards but was adopted because uncertainties in the nuclear fuel cycle make nuclear power an uneconomical and uncertain source of energy, and therefore that the section was not preempted because §§ 271 and 274(k) of the Atomic Energy Act constituted authorization for States to regulate nuclear powerplants for purposes other than protection against radiation hazards. The court further held that § 25524.2 was not invalid as a barrier to fulfillment of the federal goal of encouraging the development of atomic energy.

Held:

1. The challenge to § 25524.2 is ripe for judicial review, but the questions concerning § 25524.1(b) are not. Pp. 200-203.

(a) The question of ripeness turns "on the fitness of the issues for judicial decision" and "the hardship to the parties of withholding court chanrobles.com-red

Page 461 U. S. 191

consideration." Abbott Laboratories v. Gardner, 387 U. S. 136, 387 U. S. 149. Both of these factors counsel in favor of finding the challenge to § 25524.2 ripe for adjudication. The question of preemption is predominantly legal, and to require the industry to proceed without knowing whether the moratorium imposed by § 25524.2 is valid would impose a palpable and considerable hardship on the utilities, and may ultimately work harm on the citizens of California. Moreover, if § 25524.2 is void as hindering commercial development of atomic energy, delayed resolution would frustrate one of the key purposes of the Atomic Energy Act. Pp. 461 U. S. 200-202.

(b) Under circumstances where it is uncertain whether the State Commission will ever find a nuclear plant's interim storage capacity to be inadequate, and where, because of this Court's holding infra that § 25524.2 is not preempted by federal law, it is unlikely that industry behavior would be uniquely affected by such uncertainty surrounding the interim storage provision, a court should not stretch to reach an early, and perhaps a premature, decision respecting § 25524.1(b). P. 461 U. S. 203.

2. Section 25524.2 is not preempted by the Atomic Energy Act. Pp. 461 U. S. 203-223.

(a) From the passage of the Atomic Energy Act in 1954, through several revisions, and to the present day, Congress has preserved the dual regulation of nuclear powered electricity generation: the Federal Government maintains complete control of the safety and "nuclear" aspects of energy generation, whereas the States exercise their traditional authority over economic questions such as the need for additional generating capacity, the type of generating facilities to be licensed, land use, and ratemaking. This Court accepts California's avowed economic, rather than safety, purpose as the rationale for enacting § 25524.2, and accordingly the statute lies outside the federally occupied field of nuclear safety regulation. Pp. 461 U. S. 205-216.

(b) Section 25524.2 does not conflict with federal regulation of nuclear waste disposal, with the decision of the Nuclear Regulatory Commission (NRC) that it is permissible to continue to license reactors, notwithstanding uncertainty surrounding the waste disposal problem, or with Congress' recent passage of the Nuclear Waste Policy Act of 1982 directed at that problem. Because the NRC's decision does not and could not compel a utility to develop a nuclear plant, compliance with both that decision and § 25524.2 is possible. Moreover, because the NRC's regulations are aimed at insuring that plants are safe, not necessarily that they are economical, § 25524.2 does not interfere with the objective of those regulations. And as there is no attempt on California's part to enter the field of developing and licensing nuclear waste disposal technology, a field occupied by the Federal Government, § 25524.2 is not preempted any more by the NRC's obligations in the waste disposal chanrobles.com-red

Page 461 U. S. 192

field than by its licensing power over the plants themselves. Nor does it appear that Congress intended, through the Nuclear Waste Policy Act of 1982, to make the decision for the States as to whether there is now sufficient federal commitment to fuel storage and waste disposal that licensing of nuclear reactors may resume. Moreover, that Act can be interpreted as being directed at solving the nuclear waste disposal problem for existing reactors without necessarily encouraging or requiring that future plant construction be undertaken. Pp. 461 U. S. 217-220.

(c) Section 25524.2 does not frustrate the Atomic Energy Act's purpose to develop the commercial use of nuclear power. Promotion of nuclear power is not to be accomplished "at all costs." Moreover, Congress has given the States authority to determine, as a matter of economics, whether a nuclear plant vis-a-vis a fossil fuel plant should be built. California's decision to exercise that authority does not, in itself, constitute a basis for preemption. Pp. 461 U. S. 220-223.

659 F.2d 903, affirmed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J.,and BRENNAN, MARSHALL, POWELL, REHNQUIST and O'CONNOR, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, in which STEVENS, J., joined, post, p. 461 U. S. 223. chanrobles.com-red

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