United States District Court, Northern District of Illinois, E.D
November 27, 1972
LAURENCE GAGE ET AL., PLAINTIFFS,
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
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
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
"(ii) any adverse environmental effects which
cannot be avoided should the proposal be
"(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.
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 (1970).
Pursuant to 42 U.S.C. § 2231, actions of the AEC are governed by
that Act; hence, allegations of improper action by the AEC render
sovereign immunity is inapplicable in this case.
Appellate Court Jurisdiction
One basis for the AEC's contention that the Court of Appeals
has exclusive jurisdiction over this action is
28 U.S.C. § 2342(4), which provides for appellate determination of the
validity of any final order of the AEC made reviewable by
42 U.S.C. § 2239. This Court, however, cannot accept the argument
that the AEC's failure to perform an alleged duty required by
NEPA constitutes a "final agency order" within the meaning of the
statute. The Administrative Procedure Act defines an agency order
". . . the whole or a part of a final
disposition . . . in a matter other than rule making
but including licensing."
5 U.S.C. § 551(6) (emphasis added)
Since the AEC's failure to act cannot become a final disposition
unless or until it grants Edison a construction license without
having prepared the requisite environmental analysis, such
failure to act cannot constitute a final agency order conferring
appellate court jurisdiction.
The AEC contends further that the Complaint challenges the
rule-making procedures of that agency. Jurisdiction for such a
challenge lies exclusively in the Court of Appeals pursuant to
28 U.S.C. § 2342. However, plaintiffs argue persuasively that in the
instant action they are contesting not the AEC's rule-making but
rather its failure to conform to NEPA requirements of its
licensing procedures and that their challenge of AEC rule-making
is pending in the District of Columbia Circuit Court of Appeals.
In further response to the AEC's contention that this action is
appropriate only in the appellate court, plaintiffs have asserted
that they are unable to seek appellate review of the agency's
licensing procedures pursuant to 28 U.S.C. § 2344,
since only parties to licensing proceedings can bring
such an action. Consequently, their principal position has been
that this Court must take jurisdiction in order to prevent
irreparable harm to them. Although this appellate remedy was not
available to plaintiffs at the time they filed their Complaint,
the Court is informed that the AEC has published the notice of
hearing in the licensing proceedings. Since this notice affords
plaintiffs the opportunity to become parties to those
proceedings, pursuant to 28 U.S.C. § 2344, they can now avail
themselves of appellate review of the AEC's licensing procedures.
A Federal District Court has jurisdiction to compel performance
by an agency of its clear, non-discretionary legal duty, if
statutory judicial review is unavailable or inadequate to protect
plaintiffs' rights. Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180,
3 L.Ed.2d 210 (1958); Jewel Companies, Inc. v. F.T.C.,
432 F.2d 1155 (7th Cir. 1970). Although the duties set forth in NEPA § 102
are clear and non-discretionary, Calvert Cliffs' Coordinating
Committee v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1114-1115
(1971), this Court is convinced that the available appellate
remedy is sufficient to grant the relief which plaintiffs
request, upon proof of their claims. Should the Court of Appeals
find that the existing licensing procedures of the AEC are
invalid in the light of NEPA § 102, it can enjoin, set aside, or
suspend those procedures pursuant to 28 U.S.C. § 2349 in order to
effect compliance with NEPA. Accordingly, this Court need not
take jurisdiction of this action in order to prevent irreparable
harm to plaintiffs.
As to plaintiffs' claim that this Court has jurisdiction,
pursuant to 5 U.S.C. § 704, to review final agency action, the
Court will consider first the definition of "agency action" in
the Administrative Procedure Act, 5 U.S.C. § 551(13):
"(13) "agency action" includes the whole or a part of
an agency rule, order, license, sanction, relief, or
the equivalent or denial thereof, or failure to
Although the Court agrees with plaintiffs that the AEC's alleged
failure to prepare an environmental analysis prior to Edison's
land acquisition constitutes "agency action" within the meaning
of the Administrative Procedure Act, the question remaining is
whether such action is final in nature so as to come within the
purview of 5 U.S.C. § 704.
The Court is of the opinion that the AEC's alleged failure to
act can constitute "final agency action" only if it can be
established that the AEC has a clear legal duty under NEPA so to
act. Absent such a duty, the AEC's inaction cannot be construed
as final, for "final" necessarily implies that nothing is
forthcoming in a certain course of action. The AEC, pursuant to
the recently promulgated amendment to its licensing regulations,
10 C.F.R. § 50.10, can be expected eventually to prepare an
environmental analysis and to report thereon prior to the
issuance of a construction permit. The failure to do so at any
given time in advance of such issuance in itself cannot imply
that it will fail utterly to prepare the analysis prior to
issuing a permit; such failure would become final only upon the
issuance of a permit without having prepared the analysis.
Correspondingly, the AEC's alleged present failure to prepare an
environmental analysis prior to Edison's land acquisition cannot
be considered final unless (1) the AEC has a clear statutory duty
to prepare it prior to that time and (2) the land acquisition has
occurred without the AEC's preparation of the analysis. The
question of whether NEPA enunciates such a clear legal duty will
be discussed infra under that heading.
Whether this action is "ripe" for disposition appears to depend
the AEC's alleged failure to act in preparing the environmental
analysis constitutes federal action. The AEC submits that no
federal action is involved since Edison's land acquisition prior
to the AEC's environmental impact report is private action rather
than federal action; further, it suggests that the only
conceivable claim of federal action lies in the anticipated
agency action of granting Edison a construction permit for the
Asserting that federal action clearly is involved, plaintiffs
claim that NEPA applies as soon as federal participation becomes
possible, citing, inter alia, La Raza Unida v. Volpe, 337 F. Supp. 221
(N.D.Cal. 1971). They declare that eventual federal
participation became certain in the instant case at least as soon
as Edison applied for a construction permit for a nuclear
generating facility, since such a project could not be undertaken
without federal approval. Emphasizing the importance of action
prior to the occurrence of environmentally-damaging activities,
plaintiffs urge that the AEC's alleged failure to prepare an
environmental impact statement heretofore constitutes a failure
to act in compliance with NEPA, which failure continues to result
in impairment of environmentally desirable land use.
Plaintiffs' argument that federal participation in Edison's
proposed plant is certain since Edison has applied for a
construction permit is in error. The conflict between the parties
on this issue arises from various interpretations of
"participation". Whereas the AEC assumes that it does not
participate in a project until it has given at least location
approval to that project, plaintiffs define the agency's
participation in a project as the AEC's consideration of that
project for approval.
The Court notes that in La Raza, supra, the case upon which
plaintiffs principally rely, and in the other cases considered
which have found federal action present, the common denominator
was the factor of location approval by an agency of the federal
government. Thus, it appears that the AEC's alleged failure to
prepare an environmental impact statement prior to an applicant's
land acquisition cannot constitute federal action absent either
prior federal action (amounting to location approval) or a clear
statutory duty so to act. Since the AEC has not given location
approval (much less approval of another sort) to Edison's
proposed nuclear facility, this Court is unable to adjudicate the
claim against the AEC unless a clear statutory duty of the agency
under NEPA is evinced.
Clear Legal Duty
Although the court in Calvert Cliffs' Coordinating Committee,
Inc. v. AEC, supra, concerned with applying NEPA obligations to
the AEC's pre-licensing activities, extended the agency's
obligations under NEPA to include the preparation of an
environmental impact analysis prior to the granting of a
construction permit, it did not explore the applicability of NEPA
§ 102 directives to the period prior to land acquisition. In
considering the possibility of ordering such a pre-acquisition
analysis in the instant case, this Court recognizes the
undesirability, as well as the impracticality, of holding that a
pre-acquisition study is required by NEPA in all AEC construction
licensing procedures.*fn1 Indeed, the
prospective consequences of such a NEPA directive to a federal
agency are ominous at best.
The Court realizes that the present AEC procedures can result
in precluding some environmental factors (e.g., present land use)
from consideration in the impact analysis, thereby giving an
advantage to the applicant who already has completed the site
acquisition.*fn2 However, until the AEC receives notice by an
application for a permit it cannot begin its environmental
Accordingly, this Court finds that NEPA § 102 imposes no clear
legal duty upon the AEC to prepare an environmental impact
statement prior to an applicant's acquisition of land for a
proposed site. Neither can NEPA § 102 impose a clear legal duty
upon the defendant members of the AEC, for the same reasons
COMMONWEALTH EDISON COMPANY'S MOTION TO DISMISS
Plaintiffs have brought the action against Edison as a
violation of 42 U.S.C. § 1983, alleging that Edison, under color
of state law by reason of its eminent domain power, is depriving
plaintiffs of their rights under NEPA. The jurisdictional
counterpart of § 1983, 28 U.S.C. § 1343(3), has been alleged as a
jurisdictional basis for the action, along with 28 U.S.C. § 1331
and 28 U.S.C. § 1361.
Edison has moved to dismiss, asserting (1) that the claim
against Edison lacks jurisdictional basis and (2) that plaintiffs
have failed to state a claim upon which relief can be granted.
Basis for Jurisdiction
Edison correctly contends that this Court does not have
jurisdiction pursuant to 28 U.S.C. § 1343, which provides in
relevant part that
"[t]he district courts shall have original
jurisdiction of any civil action authorized by law to
be commenced by any person:
"(3) to redress the deprivation, under color of any
State law, statute, ordinance, regulation, custom or
usage, of any right, privilege or immunity secured by
the Constitution of the United States or by any Act
of Congress providing for equal rights of citizens or
of all persons within the jurisdiction of the United
States. . . ."
Even though plaintiffs' claims may be brought under 42 U.S.C. § 1983
(see discussion infra), the NEPA rights alleged to be
violated are secured neither by the Constitution nor by an Act of
Congress providing for equal rights; thus, these rights do not
fall within the purview of 28 U.S.C. § 1343.*fn3 Neither is
there jurisdiction solely on a federal question basis since
plaintiffs failed to allege the jurisdictional amount required by
28 U.S.C. § 1331.
Plaintiffs urge that this Court can sustain a type of "pendent"
jurisdiction over the claim against Edison, based on the
28 U.S.C. § 1361 jurisdiction over the claim against the defendant
members of the AEC. However, the Court need not reach this
question since jurisdiction over that claim cannot be sustained,
pursuant to the discussion of the merits of that claim, supra.
Accordingly, this Court holds that it is without jurisdiction
over the subject matter of the claim against Edison.
Claim under 42 U.S.C. § 1983 and NEPA
The action against Edison presents an apparently valid claim
under 42 U.S.C. § 1983, which provides that
"[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory, subjects, or causes to be subjected,
any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress."
Although Edison argues that only actions involving deprivation of
Constitutional rights are cognizable under § 1983, the provision
"Constitution and laws" clearly embraces any action involving the
deprivation under color of state law of rights secured by a law
of the United States. Gomez v. Florida State Employment Service,
417 F.2d 569, 579 (5th Cir. 1969); Bomar v. Keyes, 162 F.2d 136,
139 (2d Cir. 1947). See also the discussion in Lynch v. Household
Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 1117 at footnote 7,
31 L.Ed.2d 424 (March 23, 1972). In the instant case, the "law"
is NEPA, 42 U.S.C. § 4332.
Assuming that plaintiffs have stated the basis for a valid
claim under § 1983, the Court must next consider what rights of
plaintiffs under NEPA § 102 are being infringed by Edison's
acquisition of land for its proposed nuclear facility. Plaintiffs
allege deprivation from Edison's land acquisition prior to its
receipt of a construction permit from the AEC; they charge that,
if the AEC's environmental impact statement indicates that the
optimum land use for the subject area is farming and the
construction permit is denied, they will have been deprived of
their farms needlessly.
However, the Court notes that most of the plaintiffs are not
owners of the property in question; many are tenant farmers;
others are various civic groups and residents of the general area
whose standing in this action is highly questionable, though not
The owners, who may be subject to condemnation proceedings in
the future, have a legitimate concern about the involuntary
deprivation of their property; however, even these plaintiffs
have not yet suffered any harm nor have been deprived of any
rights, for Edison has not yet commenced any eminent domain
proceedings. Furthermore, Edison has agreed that it will give
plaintiffs at least 60 days notice prior to issuing any
condemnation proceedings against their property, thereby
affording those plaintiffs opportunity to seek judicial redress
when and if the threat of condemnation becomes imminent. At this
time, however, the Court concludes that their action herein is
premature, for the Court will not restrain a party in the absence
of a real and imminent threat to the plaintiffs in suit.
With respect to tenants and others having lesser estates in the
subject property, the Court must recognize the right of a
landowner freely to alienate his property; a tenant is always
subject to termination by his landlord. Edison's sole activity in
acquiring the property to date has been confined to voluntary
acquisition; there is no basis for enjoining such present action
since plaintiffs are not suffering irreparable harm therefrom.
Accordingly, the Court will not interfere with the right of
individuals and corporations to do business or to purchase and
sell real estate for any of a multitude of uses. Moreover, even
if Edison is denied a construction permit for the site in
question, such denial would not of itself prevent Edison from
utilizing the property to best advantage from an environmental
Edison further submits that NEPA § 102 operates only upon
federal agencies and not upon individuals or corporations.
The Seventh Circuit upheld this view in Bradford Township v.
Illinois State Toll Highway Authority, 463 F.2d 537, 540 (7 Cir.
1972), wherein that court stated that
". . . the procedural requirements of the National
Environmental Policy Act are applicable only to
"[t]he declarations of a national environmental
policy and a statement of purpose . . . are not
sufficient to establish substantive rights."
Moreover, in Boston v. Volpe, 464 F.2d 254
(1st Cir. July 17,
1972), the court refused to issue an injunction against a Port
Authority on the basis that, since the project in suit had not
yet received location approval, it was not yet a federal action
subject to NEPA. These actions are closely analogous to the
instant case; accordingly, this Court must deny any relief to
plaintiffs at least until such time as the action complained of
is federal in nature and gives rise to reasonable apprehension of
harm to plaintiffs.
While recognizing the importance of environmental goals and
values, this Court is compelled to hold that it does not have
jurisdiction over the instant action, either in Count I or in
Count II. Further, even if the Court did have jurisdiction,
plaintiffs have failed to state any claim upon which relief can
be granted at this time.
Accordingly, it is hereby ordered, adjudged and decreed that
the motion of defendants Atomic Energy Commission, James
Schlesinger, James T. Ramey, Wilfrid E. Johnson and Clarence E.
Larson to dismiss and the motion of defendant Commonwealth Edison
Company to dismiss are granted and that this cause is dismissed
without prejudice to any future cause of action in this matter
over which this Court has jurisdiction.