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 ...