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GAGE v. COMMONWEALTH EDISON COMPANY

November 27, 1972

LAURENCE GAGE ET AL., PLAINTIFFS,
v.
COMMONWEALTH EDISON COMPANY ET AL., DEFENDANTS.



The opinion of the court was delivered by: Bauer, District Judge.

  MEMORANDUM OPINION AND ORDER

This cause comes on the motions of defendants Atomic Energy Commission ("AEC") and Commonwealth Edison Company ("Edison") to dismiss for lack of jurisdiction and for failure to state a claim upon which relief can be granted.

This is an action to prevent defendants' alleged deprivation of plaintiffs' rights under the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321. Jurisdiction is alleged to be founded upon 28 U.S.C. § 1331, 1343, and 1361 and upon 42 U.S.C. § 1983 and 5 U.S.C. § 702.

Plaintiffs are farmers (both landowners and tenants) and civic, trade, and religious groups in the community of Brookfield, La Salle County, Illinois. Defendant Edison, a public utility company, plans to construct a nuclear power plant in the area. The proposed plant would cover almost 7,000 acres of land, 4,500 of which would be used for a cooling lake for hot water discharges.

In the process of acquiring land for the installation, Edison has threatened to use its State of Illinois eminent domain power to condemn the property of those landowners who are unwilling to sell. Plaintiffs seek to enjoin Edison from further acquisition of this land prior to the AEC environmental analysis.

Pursuant to the Atomic Energy Act, 42 U.S.C. § 2131 and 2133, Edison must obtain the AEC's approval of its project. Edison's application for a construction permit is currently pending before the AEC. Plaintiffs ask the Court to compel AEC officials to perform their alleged "clear legal duty" — to adopt construction licensing procedures requiring the AEC's consideration of land use prior to (1) issuance of a construction license, (2) commitment of major financial resources by Edison, and (3) damage to the environment resulting from improper land use.

The first of these steps alleged by plaintiffs to constitute AEC "duties" has been recognized by the AEC in the promulgation of an amendment to its regulations, 10 C.F.R. § 50.10 (March, 1972). Thus, since the AEC will consider environmental factors prior to granting Edison a construction license, the focal point of the relief requested is narrowed to consideration of land use prior to steps (2) and (3) listed above.

The applicable portions of NEPA include 42 U.S.C. § 4331(a), which enunciates a federal governmental policy that

  ". . . all practicable means and measures, including
  financial and technical assistance, [shall be used]
  in a manner calculated to foster and promote the
  general welfare, to create and maintain conditions
  under which man and nature can exist in productive
  harmony, and fulfill the social, economic, and other
  requirements of present and future generations of
  Americans."

Further, the Act directs at § 4332 that

  ". . . to the fullest extent possible: . . . (2) all
  agencies of the Federal Government shall — . . .
    "(C) include in every recommendation or report on
  proposals for . . . major Federal actions
  significantly affecting the quality of human
  environment, a detailed statement by the responsible
  official on —
    "(i) the environmental impact of the proposed
    action,
    "(ii) any adverse environmental effects which
    cannot be avoided should the proposal be
    implemented,

"(iii) alternatives to the proposed action. . . ."

Plaintiffs allege, inter alia, that this prime farm land should not be used for the facility since farming would constitute the best use of the land from the standpoint of environmental values. They further submit that, if the land must be used for a nuclear power plant, Edison need condemn only 2,500 acres, for alternative cooling methods would require less than one percent of the area planned for the cooling pond.

ATOMIC ENERGY COMMISSION'S MOTION TO DISMISS

The AEC submits (1) that this action is barred by the doctrine of sovereign immunity; (2) that exclusive jurisdiction over this action rests in the United States Court of Appeals; (3) that this case is not "ripe" for adjudication since federal action is not yet involved; and (4) that NEPA establishes no clear legal duty of the AEC to conduct an environmental analysis prior to Edison's acquisition of land for the proposed facility.

Sovereign Immunity

The Court notes first that this doctrine has been held not to apply to suits to compel performance of a specific statutory duty. See Deering Milliken, Inc. v. Johnston, 295 F.2d 856 (4th Cir. 1961). Section 102 of NEPA (42 U.S.C. § 4332) clearly enumerates specific duties of all federal agencies. Thus, since this is an action to compel the performance of an alleged duty under that section, it is not barred by sovereign immunity. La Raza Unida v. Volpe, 337 F. Supp. 221 (N.D.Cal. 1971). Further, this doctrine has been held to be waived when the agency action complained of is governed by the Administrative Procedure Act, 5 U.S.C. § 500 et seq. See, e.g., Scanwell Laboratories, Inc. v. Schaffer, 137 U.S.App.D.C. 371, 424 F.2d 859, 873 ...


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