New Jersey, Department of Environmental Protection & Energy v. Long Island Power Authority

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
7-19-1994
State of NJ v. Long Island Power Co.
Precedential or Non-Precedential:
Docket 93-5613
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 93-5613
___________
STATE OF NEW JERSEY,
DEPARTMENT OF ENVIRONMENTAL PROTECTION AND ENERGY;
JEANNE M. FOX, in her official capacity as Acting Commissioner
of the Department of Environmental Protection and Energy
v.
LONG ISLAND POWER AUTHORITY;
THOMAS DE JESU, in his official capacity as
Executive Director of the Long Island Power Authority;
UNITED STATES NUCLEAR REGULATORY COMMISSION;
U.S. COAST GUARD, within the
United States Department of Transportation;
PHILADELPHIA ELECTRIC COMPANY
New Jersey Department of Environmental
Protection and Energy and Jeanne M. Fox,
Commissioner of the New Jersey Department
of Environmental Protection and Energy,
in her official capacity,
Appellants
_______________________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 93-cv-04269)
___________________
Argued December 1, 1993
Before: BECKER and SCIRICA, Circuit Judges
and POLLAK, District Judge*
(Filed July 19, 1994)
1
*The Honorable Louis H. Pollak, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
2
THOMAS A. KOWALCZYK, ESQUIRE (Argued)
JOHN M. VAN DALEN, ESQUIRE
Office of Attorney General of New Jersey
Department of Law & Public Safety
Richard J. Hughes Justice Complex
Trenton, New Jersey 08625
Attorneys for Appellants
BARRY M. HARTMAN, ESQUIRE (Argued)
LAWRENCE C. LANPHER, ESQUIRE
Kirkpatrick & Lockhart
1800 M Street, N.W., South Lobby
Washington, D.C. 20036-5891
PAUL G. SHAPIRO, ESQUIRE
Cohen, Shapiro, Polisher, Shiekman & Cohen
1009 Lenox Drive
Princeton Pike Corporate Center, Building Four
Lawrenceville, New Jersey 08648
RICHARD P. BONNIFIELD, ESQUIRE
Long Island Power Authority
200 Garden City Plaza, Suite 201
Garden City, New York 11530
Attorneys for Appellees, Long Island Power Authority
and Thomas De Jesu, in his official capacity as
Executive Director of the Long Island Power Authority
KATHERINE W. HAZARD, ESQUIRE (Argued)
United States Department of Justice
P.O. Box 23985
L'Enfant Plaza Station
Washington, D.C. 20026
Attorney for Appellees, United States Nuclear Regulatory
Commission and U.S. Coast Guard, within the United States
Department of Transportation
ROBERT M. RADER, ESQUIRE (Argued)
Winston & Strawn
1400 L Street, N.W.
Washington, D.C. 20005
Attorney for Appellee, Philadelphia Electric Company
3
4
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.
The New Jersey Department of Environmental Protection
and Energy (NJDEPE) appeals the denial of its application to
enjoin shipment of partially irradiated reactor fuel by barge
through New Jersey coastal waters. NJDEPE claims the shipment
violates the National Environmental Policy Act (NEPA), 42 U.S.C.
§§ 4321-4347 (1988), because neither the Nuclear Regulatory
Commission (NRC) nor the United States Coast Guard conducted an
environmental assessment of the method and route of
transportation. NJDEPE also claims certain licenses were
improperly granted to the Philadelphia Electric Company (PECo)
and the Long Island Power Authority (LIPA) by the NRC and the
Coast Guard in violation of the Coastal Zone Management Act
(CZMA), 16 U.S.C. §§ 1451-1464 (1988 and Supp. IV 1992), because
neither PECo nor LIPA demonstrated its actions would be
consistent with state coastal management laws.
We hold the district court properly dismissed NJDEPE's
NEPA claim against the NRC for want of jurisdiction, and properly
granted summary judgment on NJDEPE's CZMA claim in favor of the
Coast Guard. We also rule on three claims the district court did
not address. We will instruct the district court to grant
summary judgment for the Coast Guard on NJDEPE's NEPA claim
against it, dismiss the CZMA claim against the NRC for want of
5
jurisdiction, and dismiss the CZMA claim against LIPA and PECo
for failure to state a claim.
I.
A. Events leading to fuel shipment
The Shoreham Nuclear Power Station in Wading River, New
York was licensed by the NRC in 1989 for full power operation but
was never put into commercial operation. LIPA, a corporate
municipal instrumentality and political subdivision of New York
State, bought Shoreham from the original owner, the Long Island
Lighting Company, and in 1992 began the process of
decommissioning the plant by dismantling and removing or
decontaminating its various components.
By February, 1993, the only remaining step in
decommissioning the plant was disposal of its fuel, 560 bundles
of uranium-235, containing an estimated radioactivity of 176,000
Curies.0 On March 1, 1993, LIPA entered into an agreement with
PECo and General Electric Co., under which PECo would accept
delivery of Shoreham's nuclear fuel and General Electric would
manage the project. PECo intended to use the almost new nuclear
fuel in its Limerick Generating Plant near Pottstown,
Pennsylvania. Under the agreement, LIPA was responsible for
transporting the fuel.
0
Uranium becomes irradiated as it is used for fuel. Because the
Shoreham fuel was only used for two days of testing, its level of
radioactivity is relatively low. LIPA states that 176,000 Curies
is one-one hundredth of the radioactivity of fully irradiated
fuel.
6
On March 8, 1993, PECo applied to the NRC for an
amendment to its operating license to allow it to receive the
fuel. On March 31, the NRC published a notice of a proposed
finding that the license amendment involved no significant
environmental hazards under NEPA, 58 Fed. Reg. 16851, 16867-68
(1993), and that transport would be by rail. Id. at 16867. On
May 18, pursuant to its regulations, the NRC published an
Environmental Assessment of the proposed license amendment, along
with a "Finding of No Significant Impact" (FONSI), which
indicated that no Environmental Impact Statement was required. 58
Fed. Reg. 29010-11 (1993); see 10 C.F.R. §§ 51.21, 51.250; 42
U.S.C. § 4332(2)(C) (1988). The FONSI did not discuss the method
or route of transportation of the fuel, but included a finding
that the impact from transporting the nuclear fuel would be
minimal, based on application of Table S-4, 10 C.F.R. § 51.52.
The NRC issued the amendment June 23, 1993.
The parties disagree about when NJDEPE learned of
LIPA's plans to ship by barge. NJDEPE states that at about the
time the amendment was issued, LIPA informed NJDEPE that it was
considering shipping the fuel by barge along New Jersey's coast.
LIPA and PECo claim they had discussed barge shipment with NJDEPE
at a number of meetings in May and June. In any event, NJDEPE
asserts that in July it expressed objections to barge transport
but after receiving no response from PECo or LIPA assumed that
the barge shipment plan had been delayed or abandoned, until an
0
All C.F.R. references are to the 1993 edition of the Code of
Federal Regulations unless otherwise indicated.
7
Assistant Commissioner of NJDEPE read in a newspaper in mid-
August that LIPA and PECo still intended to pursue the plan.
NJDEPE also acknowledges receipt on August 9 from LIPA of an
application for a state permit, a "Certificate of Handling," that
indicated the plan to transport the fuel by barge.0
On July 7, LIPA submitted a proposed "Operations Plan"
to the Coast Guard's Captain of the Port of Long Island Sound
describing the route, equipment, safety and emergency procedures
of the barge shipment.0 In a July 27 letter, the Captain of the
Port stated that final approval was contingent on structural
inspections of the barges, and gave directions for reporting
positions and emergencies en route. NJDEPE states it did not see
a copy of LIPA's plan until September 3.
LIPA planned shipment in specialized casks approved by
the NRC for shipment of radioactive materials. Each cask weighs
130,000 pounds, and holds up to 17 fuel assemblies. The casks'
manufacturer, non-party Pacific Nuclear Systems, Inc., asked the
NRC to approve modifications in the support structure and packing
of the casks to fit the Shoreham fuel assemblies. On May 11 and
August 19, the NRC issued "Certificate[s] of Compliance for
0
The Certificate of Handling, required by New Jersey regulation
before transport of radioactive materials, 7 N.J.A.C. § 28-12, is
a separate requirement from federal "Consistency Certification"
under the CZMA. Although LIPA was never granted the Certificate
of Handling, NJDEPE stated at oral argument that LIPA had filed
an action in federal district court that resulted in its being
freed from the requirement.
0
Captains of the Port are Coast Guard officers charged with
enforcing safety, security, and environmental regulations in
their respective areas. 33 C.F.R. § 1.01-30(a).
8
Radioactive Materials Packages" to Pacific Nuclear Systems,
approving the alterations. The cask is designed to contain fully
irradiated fuel, which would be more than 100 times as
radioactive as the Shoreham fuel.0
On September 8, NJDEPE notified the Coast Guard by
letter, with a copy to LIPA, that the CZMA, 16 U.S.C.
§1456(c)(3)(A), required LIPA to submit a "Consistency
Certification" showing compliance with state coastal management
law. On September 15, NJDEPE sent a similar letter to the
National Oceanic and Atmospheric Administration (NOAA).0 On
October 1, NOAA replied that no such submission was required.
LIPA refused to refrain from shipping until it had submitted the
requested certification.
Barge shipments commenced on September 24, 1993, with
each barge carrying a single cask. A total of 33 shipments was
planned. The barges left Long Island, travelled south through
the Atlantic Ocean, at points within 15 miles of the New Jersey
Coast, went around Cape May through New Jersey waters and up the
0
The cask, called the "IF-300," is authorized to contain fuel
that has experienced reactor burnup of 35,000 megawatt days per
metric ton of uranium, while the Shoreham fuel has experienced
reactor burnup of only 87 megawatt days per ton. Similarly, each
cask is authorized for fuel with a total decay heat of 11,720
watts, while the fuel in each shipment will have a decay heat of
only 34 watts.
0
The National Oceanic and Atmospheric Administration (an
administration under the Commerce Department) promulgates
regulations implementing the consistency provisions of the CZMA.
See 15 C.F.R. Part 930. The Assistant Administrator for Coastal
Zone Management of NOAA rules on requests such as NJDEPE's. Id.§ 930.54.
9
Delaware River to dock at Eddystone, Pennsylvania. The fuel was
then moved by rail to PECo's Limerick plant.
B. Litigation
On September 21, 1993, NJDEPE filed suit against the
NRC, the Coast Guard, LIPA, and PECo, raising three counts.
Count I complained the NRC and the Coast Guard had
violated NEPA by not preparing adequate "Environmental
Assessments" when they approved the fuel shipment from LIPA to
PECo because NEPA, 42 U.S.C. § 4332(2)(C), and an NRC regulation,
10 C.F.R. § 51.30, required assessment of the risks of and
alternatives to the proposed method and route of transportation.
Lacking this analysis, the Environmental Assessment of PECo's
license amendment was "fatally flawed." Verified Complaint at
19, Joint Appendix (J.A.) at 24.
Count II claimed the Atomic Energy Act of 1954, 42
U.S.C. §§ 2011-2282 (1988 & Supp. IV 1992), and an NRC
regulation, 10 C.F.R. § 70.3, required LIPA to obtain an
amendment to its license for its nuclear fuel or to its
Decommissioning Plan before shipping the fuel.
Count III referred to the CZMA's requirement that
applicants for certain federal licenses whose activity would
affect a state's coastal zone submit certifications of
consistency with the state's approved Coastal Zone Management
program. 16 U.S.C. § 1456(c)(3)(A). NJDEPE claimed that Coast
Guard approval of LIPA's transport plan and NRC approval of
PECo's license amendment and of LIPA's transfer plans constituted
10
such licenses, but lacked the required consistency
certifications.
NJDEPE requested a temporary restraining order and a
preliminary injunction against shipment until an adequate
Environmental Assessment was done. LIPA claimed delay in
decommissioning would cost $2-3 million per month in carrying
costs and additional expenses for disruption of contractors'
schedules. On September 22 the district court denied the motion
for a temporary restraining order. On September 24 we denied a
motion for an injunction pending appeal, and the same day Circuit
Justice Souter denied a motion to stay our order.
On October 12, 1993, the district court ruled on
NJDEPE's claims. Reading Count I as essentially a challenge to
two final orders of the NRC -- the PECo license amendment and
Pacific Nuclear System's Certificate of Compliance for its
containers for radioactive materials -- the court dismissed the
claim for want of jurisdiction, holding that under the Hobbs Act,
28 U.S.C. § 2342 (1988 & Supp. IV 1992), the court of appeals has
exclusive jurisdiction of challenges to final orders of the NRC.
Count II was withdrawn by consent of the parties.
With respect to Count III, the court observed that the
CZMA required a consistency certification only from an applicant
for "a required Federal license or permit." 16 U.S.C.
§1456(c)(3)(A). Citing a finding by the National Oceanic and
Atmospheric Administration that LIPA's submission of its
transport plan was not an application for a required federal
license or permit, and that the Coast Guard had not in fact
11
issued a federal license or permit, the court found the CZMA
requirements inapplicable.
NJDEPE appealed the orders on Counts I and III.0 We
accelerated the appeal and on December 1 heard oral argument.
Because the parties expressed an urgent need for a quick
resolution we issued an oral opinion from the bench, noting that
a written opinion would follow. We held that all of NJDEPE's
claims failed, and briefly set forth our reasons. We now write
to explain our holding.0
II.
NJDEPE invoked the subject matter jurisdiction of the
district court under 28 U.S.C. §§ 1331 (1988) (federal question),
1361 (1988) (mandamus), 1337 (1988) (actions arising under acts
of Congress regulating commerce), and 5 U.S.C. § 701-06 (1988)
(Administrative Procedure Act). We have jurisdiction of the
district court's dismissal and grant of summary judgment under 28
U.S.C. § 1291 (1988).
We have plenary review over whether the district court
had subject matter jurisdiction. "``[W]e accept as true the facts
alleged in the complaint and all reasonable inferences that can
0
NJDEPE states in its brief that it agreed to dismissal of Count
II's Atomic Energy Act claims only with respect to LIPA, but not
to other parties. Because NJDEPE did not press any of those
claims in its brief or oral argument, we regard Count II as
properly dismissed and not before us on appeal.
0
In our oral opinion, we stated alternative grounds for several
holdings. Seeking to rule on grounds as narrow as possible, we
have determined we need not reach some of the issues discussed in
the oral opinion. Particularly, we do not decide whether
consistency review of the Coast Guard action would conform to the
overarching mandate of the CZMA, nor against what kinds of
impacts or harms NEPA or the CZMA is supposed to protect.
12
be drawn from them.'" Boarhead Corp. v. Erickson, 923 F.2d 1011,
1016 (3d Cir. 1991) (citation omitted).
We have plenary review over the district court's grant
of summary judgment. Public Interest Research Group, Inc. v.
Powell Duffryn Terminals, Inc., 913 F.2d 64, 76 (3d Cir. 1990),
cert. denied, 498 U.S. 1109 (1991). "[T]he appellate court is
required to apply the same test the district court should have
utilized initially. Inferences to be drawn from the underlying
facts contained in the evidential sources submitted to the trial
court must be viewed in the light most favorable to the party
opposing the motion." Goodman v. Mead Johnson & Co., 534 F.2d
566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977).
III.
In its NEPA claims, NJDEPE contends that the NRC and
the Coast Guard, through granting various licenses and permits,
allowed transport of radioactive material without adequate
environmental impact assessment.
A. The National Environmental Policy Act
NEPA aims to encourage "harmony between man and his
environment," to "prevent or eliminate damage to the
environment" and to "stimulate [human] health and welfare." 42
U.S.C. § 4321. To this end, it structures governmental
decisionmaking in two respects:
"First, it places upon an agency the obligation to
consider every significant aspect of the environmental
impact of a proposed action. Second, it ensures that
the agency will inform the public that it has indeed
considered environmental concerns in its decisionmaking
process."
13
Limerick Ecology Action v. NRC, 869 F.2d 719, 725 (3d Cir. 1989)
(quoting Baltimore Gas & Elec. Co v. Natural Resources Defense
Council, 462 U.S. 87, 97 (1983)) (internal quotation and citation
omitted). At issue here is NEPA's provision requiring that all
federal agencies:
include in every recommendation or report on proposals
for legislation and other major Federal actions
significantly affecting the quality of the 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,
(iv) the relationship between local short-term
uses of man's environment and the maintenance and
enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments
of resources which would be involved in the
proposed action should it be implemented.
42 U.S.C. § 4332(2)(C).
The Council on Environmental Quality (CEQ), established
under NEPA, 42 U.S.C. § 4342, has promulgated regulations to
guide agencies in addressing the threshold question of whether a
particular action must be accompanied by the "detailed statement"
described in § 4332(2)(C), called an Environmental Impact
Statement (EIS).0 See generally 40 C.F.R. Parts 1507, 1508. When
considering a major action, the regulations require that "an
agency must undertake a comprehensive assessment of the expected
0
These regulations were made binding on all agencies by Executive
Order No. 11991, 3 C.F.R. 123 (1978), and are entitled to
substantial deference even if they conflict with another agency's
interpretation of NEPA, Andrus v. Sierra Club, 442 U.S. 347, 358
(1978). See also Morris County Trust for Historic Preservation
v. Pierce, 714 F.2d 271, 276 (3d Cir. 1983).
14
effects of [the] proposed action before it can determine whether
that action is ``significant' for NEPA purposes." Township of
Lower Alloways Creek v. Public Serv. Elec. & Gas. Co., 687 F.2d
732, 740 (1982). Agencies are directed to designate which
classes of actions normally require EIS's, which classes normally
require no environmental evaluation and may be regarded as
categorical exclusions, and which classes fall in the middle and
require Environmental Assessments (EA's) to determine whether
they will have a significant impact and thus require EIS's. 40
C.F.R. § 1507.3(b)(2). An EA provides either a determination
that the action will have a significant environmental impact and
hence requires an EIS, or a "finding of no significant impact"
(FONSI) indicating that no EIS is needed. Id. § 1508.9(a)(1);
Lower Alloways Creek, 687 F.2d at 740. "Thus, as a screening
device, the environmental assessment allows agencies with limited
resources to focus on truly important federal actions." Lower
Alloways Creek, 687 F.2d at 740 n.17 (internal quotations,
alteration, and citation omitted).
15
B. Claim against the NRC
1. Application of the Hobbs Act
The gravamen of NJDEPE's NEPA claims is that the
federal agencies involved in approving LIPA's fuel shipment did
not analyze the environmental impact of the method and route of
transportation or weigh transportation alternatives, as required
by 42 U.S.C. § 4332(2)(C). The district court held it lacked
subject matter jurisdiction. We agree. The Hobbs Act provides:
The court of appeals . . . has exclusive
jurisdiction to enjoin, set aside, suspend (in whole or
in part), or to determine the validity of --
. . .
(4) all final orders of the [NRC]0
made reviewable by section 2239 of
title 42 . . . .
28 U.S.C. § 2342. Section 2239 provides for review of NRC final
orders granting, suspending, revoking or amending licenses, or
issuing or modifying rules dealing with the activities of
licensees. Thus, the Hobbs Act requires "initial court of
appeals review of all final orders in licensing proceedings."
Florida Power & Light Co. v. Lorion, 470 U.S. 729, 737 (1985).
The act "should be liberally construed to allow exclusive
jurisdiction in the court of appeals." Conoco, Inc. v. Skinner,
970 F.2d 1206, 1214 (3d Cir. 1992).
The district court treated NJDEPE's claim of inadequate
environmental assessment as essentially a challenge to the
0
The act here refers to the Atomic Energy Commission. Congress
abolished the Atomic Energy Commission and transferred its
licensing and regulatory functions to the Nuclear Regulatory
Commission in 1974, 42 U.S.C. §§ 5801, 5841 (1988), so this
provision now applies to the NRC. See Baltimore Gas & Elec. Co.,
462 U.S. at 90 n.2.
16
validity of two final NRC orders: the approval of PECo's license
amendment and the issuance of a Certificate of Compliance to
Pacific Nuclear Systems for its radioactive material containers.
The court held those orders, and their accompanying environmental
assessments, could only be challenged by petition to the court of
appeals.
NJDEPE contends that because the NRC tried to avoid
issuing a reviewable final order by fragmenting its
decisionmaking, its action falls within an exception to the Hobbs
Act and is reviewable in the district court. In the alternative,
it argues that even if the district court lacked jurisdiction, we
should view its appeal as a petition for review under the Hobbs
Act, and hear its claims. Finally, NJDEPE maintains that its
original claim asserted a NEPA violation by the Coast Guard over
which the district court had jurisdiction.
2. Fragmented decisionmaking
NJDEPE bases its fragmented decisionmaking claim on
Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor,
619 F.2d 231 (3d Cir. 1980), cert. denied, 449 U.S. 1096 (1981).
There, a residents' association challenged an attempt to build
and operate a water decontamination system to process radioactive
water that accumulated after the Three Mile Island accident. The
Alliance feared that partially decontaminated water would be
released into the environment. Among its claims was that the NRC
was violating NEPA by authorizing construction of the system to
begin before preparation of an environmental evaluation of its
disposal plan. The Alliance argued that the NRC was fragmenting
17
its decisionmaking -- it was delaying a final decision on how it
would resolve the disposal problem, thereby eluding the scrutiny
of an EIS, but nevertheless it had tacitly elected a partial
solution through allowing construction of the decontamination
system. Postponing preparation of an EIS until private parties
had been permitted to expend large sums on construction, the
Alliance said, would distort the final evaluation and choice of
solution by the NRC and any reviewing court. Id. at 239-40. Yet
because the case was still under consideration, there was no
final order the Alliance could challenge under the Hobbs Act. Id.
at 236.
We stated, "Segmentation of a large or cumulative
project into smaller components in order to avoid designating the
project a major federal action has been held to be unlawful," and
then considered whether the district court had jurisdiction to
compel NRC compliance with NEPA by prohibiting segmentation and
forcing the preparation of an EIS. Id. at 240. We held that the
NRC's discretion on the timing of its EIS was not unfettered, and
that the district court was the proper forum for development of
the record needed to determine when, under NEPA, the EIS was
required. We concluded that "a claim that NRC is not complying
with the National Environmental Policy Act states a cause of
action over which the district courts have subject matter
jurisdiction." Id. at 241.
NJDEPE contends similar fragmented decisionmaking in
this case confers district court jurisdiction. NJDEPE argues it
was left without a final order to challenge because no agency was
18
willing to acknowledge approving the barge shipments along the
New Jersey coast or reviewed the environmental impact of these
shipments and alternatives, and that therefore it may ask the
district court to compel compliance with NEPA.
The record demonstrates otherwise. The NRC has not
avoided its NEPA obligations by refusing to issue final orders.
Rather, the NRC has issued several final orders connected with
the Shoreham decommissioning; and one of these, PECo's license
amendment, conveyed permission to transport the fuel, and
included an appropriate EA.0 What NJDEPE is really challenging
is not the lack of NRC assessment but the way the NRC has
evaluated the method and route of transport.
Under NRC regulations, the June 23, 1993 PECo license
amendment to receive the Shoreham fuel also constituted a license
to transport it. Any holder of an NRC license to receive and
possess nuclear fuel is the beneficiary of a general NRC license
"to transport, or to deliver to a carrier for transport," the
material, using proper procedures and equipment. 10 C.F.R.
§71.12(a) & (b).
Appropriately, then, the NRC's Environmental Assessment
of the proposed amendment allowing receipt of the fuel analyzed
the environmental impact. The analysis applied 10 C.F.R. §51.52,
"Environmental effects of transportation of fuel and waste --
Table S-4." Table S-4 provides a generic analysis of the
0
In evaluating the impact of its actions under NEPA the NRC
follows the CEQ guidelines. 10 C.F.R. § 51.10(a). Amendments to
licenses granted here require EA's. Id. § 51.20-51.22.
19
environmental impact of such transport. If a transportation plan
meets the standards set out in Table S-4, the transportation of
the materials is deemed to have no significant impact. The
Environmental Assessment detailed how "[t]he proposed shipments
meet the conditions specified in 10 C.F.R. 51.52(a)," and
concluded the environmental impact of the transportation would be
as set forth in the table, and that this impact would be
"minimal." 58 Fed. Reg. 29010, 29011 (1993).
The fragmented decisionmaking argument relies on a
claim that the agency avoided environmental analysis of an action
by not making a final decision, so the argument is foreclosed if
a final decision authorizing the action is identified. Because
the NRC, through the PECo amendment, made a final decision to
license transportation of the irradiated fuel after analyzing the
impact of transportation in the EA, Susquehanna cannot apply.0
NJDEPE argues that Table S-4's generic approach is
inadequate under NEPA, which instead requires case by case
analysis of transportation methods and routes; and that Table S-
4, by its own terms, is inapplicable here. We do not reach the
merits of these arguments because, even if true, neither
justifies the invocation of Susquehanna to lift the Hobbs Act's
0
NJDEPE shows it is aware of this logic by its efforts to deny
that it is challenging any order in particular. For example, it
states it "has no quarrel with and therefore has no interest in
challenging PECo's license amendment which does not appear to
approve a transportation route through New Jersey's waters; it
instead appears merely to allow PECo to receive and possess the
subject fuel." Brief for NJDEPE at 23.
20
jurisdictional bar, for both constitute a challenge to a final
NRC order.
NJDEPE's contention that generic evaluation of the
impact of radioactive materials transport does not satisfy NEPA
is at the center of its NEPA claims. The NRC maintains the S-4
Table correctly concludes, based on extensive study, that any
transport by barge, rail, or truck meeting certain requirements0
will have no significant environmental impact, so that there is
no need to consider various possible routes and methods of
transportation.0 In support, the NRC cites to Baltimore Gas &
0
Radioactive materials shipments must meet NRC standards for
radiation emission levels, 10 C.F.R. § 51.52, packaging, see
generally Id. Part 71, including standards for lifting and
tieing-down packages and for external radiation levels, id. Part
71 Subpart E. The regulations also require specific tests of
packages under "normal conditions" and "hypothetical accident
conditions." Id. Part 71 Subpart F.
0
Among the studies supporting Table S-4 is "Environmental Survey
of Transportation of Radioactive Materials to and from Nuclear
Power Plants," WASH-1238 (1972), J.A. at 328. It estimates
radiation dosages to transportation workers and the general
public from transport by truck, rail, and barge, and considers
the odds and effects of different kinds of accidents by each mode
of transport. Calculations are based on transportation in
approved packaging. The conclusion is that the risk of accident
for any form of transportation is about 1 in a million per
vehicle mile, and that only 1% of these accidents would involve a
severe impact or fire. Id. at 9, J.A. at 330. While the study
notes that effects of an accident would depend on, among other
things, the population density where the accident occurred, and
that requirements for special routing were considered, it states
that the advantages of requiring special routing of shipments
were determined to be too small to merit implementation. Id. at
10, J.A. at 331.
NJDEPE "does not really quarrel with LIPA's contention
that the study purportedly supporting Table S-4 (the table upon
which the subject environmental assessment allegedly was based)
concludes that the chances of a barge accident resulting in the
release of a significant amount of radiation are relatively
21
Elec., 462 U.S. at 101, where the Supreme Court approved a
generic evaluation by the NRC of the impact of the storage of
solid nuclear waste, commenting, "[t]he generic method chosen by
the agency is clearly an appropriate method of conducting the
``hard look' required by NEPA." In response, NJDEPE cites to
Limerick Ecology Action v. NRC, 869 F.2d 719 (3d Cir. 1989),
where we overturned the NRC's generic policy that an EIS for a
nuclear plant need not consider the plant's "severe accident
mitigation design alternatives." Observing that the impact of
such design alternatives would vary with each plant's design and
the population density of its environs, we stated, "it is
axiomatic that the generic approach of Baltimore Gas will not
suffice where the underlying issues are not generic." Id. at
738. NJDEPE contends that the underlying issues determining the
impact of transportation of radioactive waste are similarly not
generic, because the impact depends on the population levels each
route passes through and the risks of accident for each method of
transportation.
Whether or not this argument has merit, it does not
support a claim of fragmented decisionmaking by which the NRC has
avoided evaluating the impact of the transportation. This
evaluation has taken place, and NJDEPE's complaint challenges the
method of evaluation prescribed by the rule, Table S-4, and the
evaluation's conclusion. Count I of the complaint therefore
challenges a final order of the NRC, over which the court of
slight." Reply Brief for NJDEPE at 17. Rather, it disputes the
use of the table in this situation.
22
appeals, not the district court, has jurisdiction. Furthermore,
while we do not rule on PECo's and the United States' argument
that NJDEPE was required to exhaust all administrative remedies
before petitioning for review in this court, we note that a
number of administrative avenues might also have provided
relief.0 NJDEPE could have petitioned the NRC for a new
rulemaking process under 10 C.F.R. § 2.802(a), which provides
that "[a]ny interested person may petition the Commission to
issue, amend or rescind any regulation." Alternatively, NJDEPE
could have petitioned for a waiver of or exception to application
of Table S-4 in PECo's license proceeding under 10 C.F.R.
§2.758(b). To do so, it would have had to file a petition to
intervene as an interested party in the proceeding under 10
C.F.R. § 2.714.0 Indeed, on October 8, before oral argument,
NJDEPE filed such a petition. See 58 Fed. Reg. 58203 (1993).
Finally, NJDEPE could have petitioned to modify, suspend, or
0
Even if exhaustion of administrative remedies is required, we do
not condemn parties in NJDEPE's position to entanglement in
administrative proceedings until their objections are moot. We
have previously commented that the All Writs Act, 28 U.S.C. §1651(1988), appears to allow the court of appeals to grant pendente
lite relief to preserve the status quo while the NRC considers
petitions such as those suggested below. Susquehanna, 619 F.2d
at 237 (citing FTC v. Dean Foods Co., 384 U.S. 597, 604-05 (1966)
(28 U.S.C. § 1651(a) authorizes courts of appeals to issue
preliminary injunctions preserving status quo pending final
agency action in matters over which they had exclusive review
jurisdiction under Clayton Act, 15 U.S.C. § 21(c) (1976))).
0
NJDEPE did not seek to intervene before the amendment was issued
on June 23, 1993, but claims it did not learn of the plan to ship
by barge until around that date. It could have petitioned to
intervene even after the amendment was issued, under the
provision for late intervention for good cause. 10 C.F.R. §
2.714(a)(1).
23
revoke PECo's amended license under 10 C.F.R. § 2.206, alleging a
license violation or "potentially hazardous conditions or other
facts deemed to be sufficient ground for the proposed action,"
id. § 2.202(a)(1).
Our resolution of NJDEPE's second argument against the
NRC's use of Table S-4, that the rule "on its face is
inapplicable to the issue of how to transfer partially spent fuel
from one reactor for use at another," is similar. NJDEPE
contends that Table S-4 refers to shipment of radioactive waste
from a reactor, not to transfer of partially irradiated fuel
between reactors. The NRC responds that the fuel here is less
radioactive than fully irradiated waste, and cites to its
previous decisions that the table is equally applicable to
shipment of fuel between reactors.0 Regardless of the merits,
this is a challenge to the NRC's application of a rule in its
evaluation of the transportation, demonstrating that there was an
evaluation to challenge, and that the NRC did not fragment its
decisionmaking.
In sum, NJDEPE's real complaint is not that there is no
final order to challenge, but rather that it disagrees with the
NRC's form of analysis and conclusions. These challenges cannot
0
See In re Duke Power Co. (Catawba Nuclear Station, Units 1 & 2),
ALAB-825, 22 N.R.C. 785, 793 (1985) (rejecting contention that
Table S-4 only applies where spent fuel is shipped from reactor
to reprocessing plant, stating, "the [NRC]'s generic
determination of transportation impacts in the regulation is
equally applicable to the transshipment of spent fuel between
reactors as well as to a hypothetical reprocessing facility
because it is the same fuel regardless of destination."); accord
In re Carolina Power & Light Co. (Shearon Harris Nuclear Power
Plant), ALAB-837, 23 N.R.C. 525, 544 (1986).
24
be maintained in the district court, because the Hobbs Act
mandates "initial court of appeals review of all final orders in
licensing proceedings." Florida Power & Light Co., 470 U.S. at
737.
3. The appeal as a Hobbs Act petition
to the Court of Appeals
NJDEPE contends that even if the district court
correctly dismissed its claims against the NRC for lack of
jurisdiction, its appeal may be taken as a petition for review of
the NRC's final orders, invoking the exclusive appellate
jurisdiction of the court of appeals. The Hobbs Act provides,
"Jurisdiction [in the court of appeals] is invoked by filing a
petition as provided by [28 U.S.C. §] 2344." 28 U.S.C. § 2342.
Section 2344 requires a petition for review of an order to be
filed with the appellate court within 60 days after the order's
entry, and to specify the nature of the proceeding for which
review is sought. Id. § 2344 (1988). Federal Rule of Appellate
Procedure 15(a), "Petition for Review of Order; Joint Petition,"
which according to the Advisory Committee note supersedes 28
U.S.C. § 2344, also requires specification of the order for which
review is sought.0 NJDEPE has not complied with these
procedures.
By itself, NJDEPE's appeal allows us to consider
whether the district court's dismissal of the claim against the
0
Rule 15(a) does not specify the time limit for bringing
petitions for review, but we apply the 60-day limit from § 2344.
See Conoco, 970 F.2d at 1213 n.8 (applying § 2344's 60-day limit
after adoption of Rule 15(a)).
25
NRC was proper, not to consider the merits of the claim. Just as
when the lower federal court improperly asserts jurisdiction,
"``we have jurisdiction on appeal, not of the merits but merely
for the purpose of correcting the error of the lower court in
entertaining the suit,'" Bender v. Williamsport Area Sch. Dist.,
475 U.S. 534, 541 (1986) (quoting United States v. Corrick, 298
U.S. 435, 440 (1936)), when the lower court has properly found it
lacked jurisdiction, we have appellate jurisdiction not of the
merits but merely for the purpose of affirming the court's
dismissal.
Nor can NJDEPE's appeal serve as a stand-in for a Hobbs
Act petition for review. NJDEPE's notice of appeal was filed
October 13, 1993, well beyond 60 days from the June 23, 1993
order, and more than 60 days from August 9, when NJDEPE
indisputably learned from LIPA's application for a New Jersey
Certificate of Handling that shipments would be by barge. Even
in a proper petition, this delay would be fatal, for "[t]he 60
day period for seeking judicial review set forth in the Hobbs Act
is jurisdictional in nature, and may not be enlarged or altered
by the courts." Natural Resources Defense Council v. NRC, 666
F.2d 595, 602 (D.C. Cir. 1981). Furthermore, the notice of
appeal would be substantively deficient as a petition for review,
for it challenges the district court's ruling, rather than
"designat[ing] . . . the [agency] order or part thereof to be
reviewed." Fed. R. App. P. 15(a). For these reasons, we will
affirm the district court's dismissal for want of jurisdiction,
and will not review the merits of the claim. See Conoco, 970
26
F.2d at 1213, 1216 (affirming Hobbs Act dismissal of claims
against Maritime Administration and Coast Guard, and taking
jurisdiction only of claim against Maritime Administration which
had also been raised in protective petition for review), and at
1213 n.8 (noting that appeal came more than 60 days after the
Coast Guard order being challenged, thus exceeding 28 U.S.C.
§2342's time limit for petitions for review); Bucks County Cable
TV, Inc. v. United States, 427 F.2d 438, 442 (3d Cir.), cert.
denied, 400 U.S. 831 (1970) (declining to review under Hobbs Act
district court's exercise of jurisdiction of claim against
Federal Communications Commission because plaintiff-appellant had
also filed timely petitions for review with court of appeals);
Green v. Brantley, 981 F.2d 514, 521 n.2 (11th Cir. 1993)
(holding district court lacked jurisdiction of appellee's claim
against Federal Aviation Administration because 49 U.S.C. § 1486gave appellate court exclusive jurisdiction; declining to accept
appeal as a petition for review); see also California Save Our
Streams Council, Inc. v. Yeutter, 887 F.2d 908 (9th Cir. 1989)
(upholding district court finding of lack of jurisdiction over
claims against Federal Energy Regulatory Commission because 16
U.S.C. § 825l(b) confers exclusive jurisdiction on circuit
courts; remanding without holding that appeal could serve as
petition to review FERC decision).
C. Claim against the Coast Guard
Because it read NJDEPE's NEPA claims in Count I as a
challenge to final orders of the NRC, the district court
dismissed the count for lack of jurisdiction. But in that count,
27
NJDEPE stated its NEPA claim jointly against the NRC and the
Coast Guard.0 We will therefore address the separate claim that
the Coast Guard violated NEPA. Although we find jurisdiction in
0
The complaint stated, "NRC and the Coast Guard failed to comply
with the clear nondiscretionary requirements of NEPA and NEPA's
implementing regulations when they approved the proposed shipment
of fuel from LIPA to PECo without assessing the risks and
alternatives of the transfer and transport of LIPA's fuel."
Verified Complaint ¶ 30 at 18, J.A. at 23.
It is not clear that NJDEPE stated an independent NEPA
claim against the Coast Guard. At some points it appears NJDEPE
merely claims the Coast Guard and the NRC fragmented
decisionmaking among themselves so that neither performed a major
federal action, and neither took responsibility for allowing
transport of the fuel. On appeal NJDEPE states:
NJDEPE's claim is not that the Coast Guard on
its own committed an independent violation of
NEPA, but instead that it, together with the
NRC, violated NEPA through various actions
and inactions, the combination of which
resulted in LIPA's being allowed to transport
its nuclear fuel through New Jersey's coastal
waters without any analysis of the impact of
that transportation on those waters.
Reply Brief for NJDEPE at 18-19. Thus construed, NJDEPE's NEPA
complaint against the Coast Guard and the NRC is a variation of
the Susquehanna fragmented decisionmaking claim. In Susquehanna
we addressed a single agency's fragmentation of a decision to
take a major action into a number of smaller decisions in order
to avoid NEPA obligations; here NJDEPE's theory appears to be
that NEPA is violated where a number of agencies fragment a major
federal action into smaller, non-major decisions, hence avoiding
the environmental analysis of the action required under 42 U.S.C.
§ 4332.
We need not reach the merits of this theory of NEPA
liability, for as our discussion above indicates, such
fragmentation is not present in this case. We have found the NRC
did issue a final order authorizing the transport of the nuclear
fuel, the PECo license amendment, and took responsibility under
NEPA by performing an "analysis of the impact of that
transportation on those waters." Hence, any claim that the Coast
Guard, though it took no major action, violated NEPA through
fragmentation of a major action with the NRC must fail. We give
NJDEPE the benefit of the doubt, however, and also assume it
alleges the Coast Guard on its own took a major federal action
significantly affecting the environment.
28
the district court would have been proper, the Coast Guard is
entitled to summary judgment on the claim.
The Hobbs Act does not bar district court jurisdiction
of this claim against the Coast Guard. The action challenged is
that of the Captain of the Port of Long Island Sound, in granting
conditional approval of LIPA's Operations Plan that described the
planned barge shipments. Although the Hobbs Act grants
exclusive jurisdiction in the court of appeals over certain
rules, regulations, and orders of the Secretary of
Transportation0 relating to the nationality of ship ownership, it
does not so limit jurisdiction of challenges to Coast Guard
maritime safety activities. See 28 U.S.C. § 2342(3)(A) (1988).
The district court had jurisdiction of this claim. We
stated in Susquehanna that "[e]nforcement of the environmental
impact statement requirement generally has been assumed to be
within the subject matter jurisdiction of the district courts,"
Susquehanna Valley Alliance, 619 F.2d 231, 240 (1980), a holding
as applicable to the Coast Guard action here as it was to the NRC
action in Susquehanna. See 28 U.S.C. §§ 1331, 1337, 1361, and 5
U.S.C. §§ 701-06.
The United States contends the Coast Guard was under no
NEPA obligation because it did not take a major federal action,
and that even if NEPA does apply, Coast Guard NEPA implementation
guidelines identify operations to carry out statutory marine
0
Except during times of war and as otherwise declared by the
President, the Coast Guard is a service in the Department of
Transportation. 14 U.S.C. §§ 1, 3 (1988).
29
safety duties as "categorical exclusions" that do not require
Environmental Impact Statements. We agree there was no major
federal action by the Coast Guard, and therefore it was not
required to perform an environmental assessment or environmental
impact statement.0 We do not reach the categorical exclusion
argument.0
LIPA submitted its Operations Plan to the Captain of
the Port of Long Island Sound June 7, 1993. The cover letter
stated, "This proprietary submittal has been developed in
accordance with the guidance in American National Standard for
0
This court has previously reserved decision on the question of
the standard of review to be applied to an agency's decision not
to prepare an environmental impact statement. See, e.g., Morris
County Trust for Historic Preservation v. Pierce, 714 F.2d 271,
278 n.5 (3d Cir. 1983); Township of Springfield v. Lewis, 702
F.2d 426, 436 (3d Cir. 1983). We will do so here also, as there
is no need resolve the issue to decide the case: we find the
Coast Guard's decision here to be reasonable under the
circumstances, so it necessarily satisfies the lower abuse of
discretion standard as well.
0
It is not clear whether the Captain of the Port's approval of
LIPA's Operation Plan would qualify as a categorical exclusion
under the Coast Guard's procedures. Paragraph 2.B.2.c. of
Commandant Instruction M1 6475.1B lists "[a]ctions performed as a
part of Coast Guard operations to carry out statutory authority
in the areas of maritime safety [or] protection of the
environment" as categorically excluded from the EA or EIS
requirement because they have no significant effect on the
environment. However the Instruction also states that an EA or
EIS should be prepared for otherwise excluded actions that are
"likely to involve . . . substantial controversy because of
effects on the human environment." We note that there is no
indication that these procedures were published for public review
and comment as required by 5 U.S.C. § 553, and so do not have the
status of rules. See also 40 C.F.R. § 1507.3(a) (agency
procedures for NEPA implementation shall be adopted only after
opportunity for public review). At any rate, whether the Coast
Guard would call its action a categorical exclusion or not, we
find the action did not amount to a major federal action
entailing NEPA obligations.
30
Highway Route Controlled Quantities of Radioactive Materials --
Domestic Barge Transport, ANSI N14.24-1985." J.A. at 156. The
plan detailed equipment and facilities to be used, communications
procedures, emergency response plans, radiation safety
procedures, security measures, and the route of travel.
The Captain, H. Bruce Dickey, responded on July 27,
1993, that he had reviewed the shipping plan and stated, "final
approval is contingent on satisfactory internal structural
inspections of the Loveland barges to be used for the fuel
shipments." J.A. 159. The letter continued with instructions on
reporting positions and emergencies during shipping.
We find this exchange between the Coast Guard and LIPA
does not amount to a major federal action, and therefore § 4332,
which requires an environmental impact statement for "major
Federal actions significantly affecting . . . the human
environment," does not apply. Where a non-federal party
voluntarily informs a federal agency of its intended activities
to ensure that they will comply with law and regulation, and to
facilitate the agency's monitoring of the activities for safety
purposes, the agency's review of the plan does not constitute a
major federal action.0 Here, it is clear that LIPA's submission
0
This court has set forth a dual standard for determining whether
an environmental impact statement is required: we consider
whether a federal action is "major," in terms of the level of
federal resources and authority committed to it, and whether it
"significantly" affects the environment. NAACP v. Medical Ctr.,
Inc., 584 F.2d 619, 627 (3d Cir. 1978). We recognize that the
Council on Environmental Quality has interpreted § 4332(2)(C) as
setting forth a unitary standard: "Major Federal action includes
actions with effects that may be major and which are potentially
subject to Federal control. Major reinforces but does not have a
31
of its Operations Plan was not required for it to ship the fuel.
The American National Standards Institute standard on barge
transport of radioactive materials under which LIPA submitted its
Operations Plan does not set out legal requirements; rather, it
states, "The use of American National Standards is completely
voluntary." Brief for Federal Appellees, Addendum II.
meaning independent of significantly." 40 C.F.R. § 1508.18(citation omitted); see also 43 Fed. Reg. 55978, 55989 (1978).
Despite our deference to the CEQ's regulations, Andrus v. Sierra
Club, 442 U.S. 347, 358 (1978), we question its interpretation of
NEPA in this instance, for the reasons we set out in NAACP:
First, the two-pronged approach follows the
statutory language more closely than the
unitary approach; second, the unitary
approach would give virtually no effect to
the word "major," and thus would run counter
to the requirement that a court give effect
to all words of a statute when construing it;
and third, the Government reasonably could
have concluded that a minimal federal
relationship to a project having an
environmental impact would not warrant
expenditure of scarce resources and critical
time for preparation of a needless impact
statement.
N.A.A.C.P., 584 F.2d at 627. This court and others have
continued to use the dual standard. See Lower Alloways, 687 F.2d
at 740 n.15. Sugarloaf Citizens Ass'n v. Federal Energy
Regulatory Comm'n, 959 F.2d 508, 512 (4th Cir. 1992) ("Only
proposals for a ``major' federal action therefore require review
by an agency under NEPA," (citing NAACP, 584 F.2d at 634));
Sierra Club v. Penfold, 857 F.2d 1307, 1314 (9th Cir. 1988)
(holding agency's approval of mining proposals constituted
marginal, not major, federal action, so that agency was not
subject to NEPA requirements). We need not resolve the conflict
at this point, however, because the CEQ's definition would not
lead us to a different result. Even using that definition, we
would focus on the federal action, not the action of a private
party. Where the federal agency lacks authority to control the
private activity, and is merely involved in an advisory capacity
at the request of the private party, there is no "action[] with
effects that may be major and which are potentially subject to
Federal control."
32
Similarly, the Coast Guard circular on barge transportation of
radioactive materials states that the ANSI standard "advises"
shippers to consult the Coast Guard regarding emergency response
plans, and explains, "This standard is intended to be a voluntary
industry standard." J.A. at 154.0
Federal approval of a private party's project, where
that approval is not required for the project to go forward, does
not constitute a major federal action.0 In NAACP, we described
three classes of agency actions requiring environmental analysis
under NEPA: first, where the agency itself undertook a project;
second, where the agency supported a project by contract, grant,
loan, or other financial assistance; and third, where the agency
enabled the project by lease, license, permit, or other
0
Our conclusion that permission from the Coast Guard for shipment
of the Shoreham fuel was not required is fortified by reference
to regulations that categorize certain materials, such as the
uranium-235 at issue here, as "dangerous cargo," 33 C.F.R. §
126.07; 49 C.F.R. § 172.101, and other material, particularly
certain explosives, as "designated dangerous cargo," 33 C.F.R.
§126.09. The Coast Guard has promulgated by regulation a general
handling permit for "dangerous cargo." Id. § 126.27. For
"designated dangerous cargo," however, the Captain of the Port
must issue a permit for each transaction (handling, storage,
etc.) involving the material, id. § 126.19. Thus, the Coast
Guard has apparently made a conscious choice not to engage in
licensing activities with respect to the material at issue here.
0
The CEQ lists categories into which federal actions "tend to
fall," and among these is "[a]pproval of specific projects . . .
. Projects include actions approved by permit or other regulatory
decision as well as federal and federally assisted activities."
40 C.F.R. § 1508.18(b)(4). It does not, however, define
approval. Regardless of whether § 1508.18(b)(4) would designate
a non-required, voluntarily sought approval as a federal action,
such an approval is not a major federal action.
33
entitlement for use.0 NAACP, 584 F.2d at 630. In NAACP, the
Secretary of the Department of Health, Education, and Welfare had
approved a hospital's capital expenditure plan after
certification by local and state officials that the renovation
and expansion were necessary. Without this approval, the
Secretary might have withheld a portion of federal payments for
patient charges under Medicare, Medicaid, and other health
programs. The plaintiffs claimed the Secretary should have filed
an environmental impact statement before issuing his approval.
Id. at 624.
As here, the question in NAACP regarded the third
category of action: whether the government had enabled the
project in such a way as to constitute a major federal action.
Observing that the hospital could have legally pursued its
renovation and expansion without the Secretary's approval, and
that the Secretary's duties of approval were ministerial once the
state agencies had approved the expenditure as necessary and did
not include the discretion to consider environmental impacts of
the project, we held there was no major federal action. We
explained, "When the agency ``enables' another to impact on the
environment, the court must ascertain whether the agency action
is a legal requirement for the other party to affect the
environment and whether the agency has any discretion to take
0
We note that where an agency imposes a de facto requirement that
it grant approval before a private action is taken, through, for
example, a policy governing its exercise of discretionary
authority, this may be the equivalent of a legal requirement that
the private party seeking to act must obtain a license or permit.
34
environmental considerations into account before acting." Id. at
634 (emphasis added). We also rejected the argument that the
Secretary's approval was a major federal action because, for
financial reasons, the renovation and expansion would not be
undertaken but for his approval. The classification of enabling
action as major federal action "does not extend to Government
action which amounts to less than a legal precondition," we
explained. Id. at 632.
Other courts have also held that where federal
approvals are not legal predicates to private actions, the
approvals are not major federal actions entailing NEPA
obligations. In Sugarloaf Citizens Ass'n, a citizen's group
challenged the Federal Energy Regulatory Commission's (FERC)
certification of a proposed waste-to-energy facility as a "co-
generation facility." This certification gave the facility the
right to deal with the local electric utility at favorable rates,
and, according to the citizens, was critical to the facility's
economic viability. 959 F.2d at 513. The Fourth Circuit stated,
"a non-federal project is considered a ``federal action' if it
cannot begin or continue without prior approval by a federal
agency and the agency possesses authority to exercise discretion
over the outcome." Id. at 512 (internal quotation marks and
citations omitted). Noting that the facility received no direct
federal assistance, that FERC's certification was a ministerial
determination based on technical and ownership qualifications,
and that the facility legally could have been built without
certification, the court affirmed FERC's determination that there
35
was no major federal action for NEPA purposes. Id. at 513-14.
See also Sierra Club v. Penfold, 857 F.2d 1307, 1314 (9th Cir.
1988) (where Bureau of Land Management required advance notice of
development of gold mine and monitored compliance with
environmental rules, but could not require approval before
development of mine began, federal action "marginal" rather than
"major"); Named Individual Members of San Antonio Conservation
Soc'y v. Texas Highway Dep't, 496 F.2d 1017, 1023-24 (5th Cir.
1974) (no major federal action where state sought Army Corps of
Engineers' opinion on effect of highway project on flood control
and Corps responded it had no objection, but where there was no
legal requirement that state seek Corps approval), cert. denied,
420 U.S. 926 (1975).
In the converse situation, we have held that where a
federal agency has legal control over a private project, its
approval can amount to a major federal action. Where the
Department of Housing and Urban Development (HUD) had approved
and contracted to finance a town's urban renewal project before
NEPA's 1969 enactment, and the town's development authority voted
in 1980 to demolish a historical building, a preservation
organization claimed NEPA required HUD to perform an
environmental analysis. Morris County Trust, 714 F.2d 271 (3d
Cir. 1983). We found HUD had continuing authority over the
project, because the loan contract required the development
authority to submit data on proposed actions to HUD, and HUD in
turn could withhold payment if it found an action violated
federal law or regulation. Therefore HUD was required to
36
consider the environmental effects of its action under § 4332 and
related regulations. Id. at 278. See also Davis v. Morton, 469
F.2d 593 (10th Cir. 1972) (Department of Interior performed major
federal action by approving lease of Indian lands, where approval
was required by statute). Here, the Coast Guard approval was not
required before the shipments could take place, so the Coast
Guard did not have control over them.0 The Coast Guard did not,
therefore, perform a major federal action in relation to the
shipments, and was not obligated to analyze their environmental
impact under NEPA.
IV.
NJDEPE claims that the NRC, the Coast Guard, LIPA, and
PECo violated the Coastal Zone Management Act requirement
conditioning certain federal licenses and permits on submission
of "consistency certifications" showing that proposed activities
0
As discussed below, the Coast Guard possesses a number of
discretionary enforcement powers it conceivably could have
applied to the LIPA shipment, but did not. NJDEPE only mentions
these in relation to the CZMA claim, but we note that such
enforcement powers do not give the Coast Guard ongoing legal
control of the shipments for NEPA purposes. Indeed, the Coast
Guard's non-action in this regard does not constitute federal
action at all under NEPA. According to the CEQ, federal
"[a]ctions include the circumstance where the responsible
officials fail to act and that failure to act is reviewable by
courts or administrative tribunals under the Administrative
Procedure Act or other applicable law as agency action." 40
C.F.R. § 1508.18. Here, the Coast Guard's "decision not to take
enforcement action should be presumed immune from judicial review
under" the Administrative Procedure Act. Heckler v. Chaney, 470
U.S. 821, 832 (1985). See also Defenders of Wildlife v. Andrus,
627 F.2d 1238 (1980) (Secretary of Interior's decision not to
exercise power to stop state's wolf-killing program not a major
federal action); Alaska v. Andrus, 591 F.2d 537 (9th Cir. 1979)
(same).
37
comply with the state's coastal management program. NJDEPE wants
LIPA and PECo ordered to submit consistency certifications. The
claim against the NRC that its licenses to LIPA (regarding the
decommissioning of Shoreham) and PECo (regarding receipt of the
fuel) violate the CZMA are, like the other claims against the
NRC, jurisdictionally barred from the district court and hence
will have to be dismissed.0 We will affirm the district court's
grant of summary judgment to the Coast Guard on the CZMA claim,
and instruct the district court to dismiss the CZMA claim against
LIPA and PECo.
A. The Coastal Zone Management Act
The CZMA aims to preserve, protect, and restore the
nation's coast, in part by encouraging and assisting states in
the development of coastal zone management programs. 16 U.S.C.
§1452(1)&(2). To promote cooperation by federal agencies with
state management efforts, it provides that any applicant for a
federal license or permit to conduct an activity that will affect
the coastal zone:
shall provide in the application to the licensing or
permitting agency a certification that the proposed
activity complies with the enforceable policies of the
state's approved program and that such activity will be
conducted in a manner consistent with the [state's
approved coastal management] program.0
0
The district court did not specifically address the CZMA claims
against the NRC, LIPA, or PECo in its opinion.
0
The statute also states a general
cooperation requirement: Each Federal agency
activity within or outside the coastal zone
that affects any land or water use or natural
resource of the coastal zone shall be carried
out in a manner which is consistent to the
maximum extent practicable with the
38
Id. § 1456(c)(3)(A) (Supp. IV 1992). The statute sets out
procedures for granting or withholding the federal license
depending on the judgment of the state and the Secretary of
Commerce with respect to the proposal's consistency with the
state program. Id.
The National Oceanic and Atmospheric Administration
(NOAA) of the Commerce Department has promulgated regulations
implementing the CZMA's consistency requirements. 15 C.F.R. Part
930. The regulations require state agencies to develop a list of
federal license and permit activities that are likely to affect
the coastal zone and that the state wishes to review for
consistency. The list is included in the state's management
program, which is submitted to the Secretary of Commerce for
approval. 15 C.F.R. § 930.53(b). The list may be amended by the
state after consultation with the affected federal agency and
approval of the Assistant Administrator of NOAA. 15 C.F.R.
§930.53(d). States are also directed to monitor unlisted federal
license and permit activities, and may inform the federal agency
and applicant that they seek consistency certification of a
particular activity within 30 days of notice of the activity; if
the request is untimely "the State agency waives its right to
review the unlisted activity." Id. § 930.54(a). The Assistant
Administrator of NOAA must approve the request for consistency
review of an unlisted license application. Id. § 930.54(c).
enforceable policies of approved State
management programs.
Id. § 1456(c)(1)(A) (Supp. IV 1992).
39
An applicant for a license selected for consistency
review must submit to the federal agency and the state a
certification that the proposed activity is consistent with the
state's coastal zone management program, along with certain
required information. Id. §§ 930.57, 930.58. The regulations
provide for state agency review of consistency certifications,
and means to resolve state objections to such certifications. Id.
§§ 930.59-930.66. Licenses may not issue until CZMA requirements
are satisfied. Id. § 930.53(e).
B. The Coast Guard Action
NJDEPE contends LIPA's submission of its Operations
Plan constituted an application for a required federal license or
permit, thereby triggering the CZMA's consistency review
requirements, and the Coast Guard improperly granted a license or
permit before those requirements were met. The Coast Guard
approval does not fall within a category of license listed in New
Jersey's coastal zone management program as requiring consistency
review. Furthermore, as we discussed in addressing the NEPA
claims, we agree with the district court that no required federal
license or permit was applied for or granted, nor should there
have been. Therefore, consistency review was not called for.
None of the licenses listed for consistency review in
New Jersey's approved "Coastal Management Program" relates to the
Coast Guard action in this case. J.A. at 290; 7 N.J.A.C. § 7E.
NJDEPE cites its Federal Consistency in New Jersey's Coastal
Management Program -- A Handbook (Jan. 1991), which lists
licenses for which applicants "should consult with [NJDEPE's
40
Division of Coastal Resources] regarding [their] consistency
status." J.A. at 281. This list includes "[p]ermits and
authorization for the handling of dangerous cargo by vessels in
U.S. ports" issued pursuant to 46 U.S.C. § 170. Id. at 282. But
even if such a permit was issued (we note that none is mentioned
in the letter, and that no New Jersey port was involved in the
journey), the Handbook does not represent an amendment to the
approved coastal program, because it was not approved by NOAA
after consultation with the affected agency, as the regulations
require.0 15 C.F.R. § 930.53(d). Thus, such permits are not
officially listed for consistency certification.
Because the Coast Guard did not issue a license listed
in New Jersey's Coastal Management Program, the Coast Guard
action could only be submitted to consistency review as an
"unlisted Federal license and permit activit[y]" under 15 C.F.R.
§ 930.54(a), which requires the state agency to inform the
federal agency of the requested review within 30 days of the
state's notice of the application for such license or permit.
NJDEPE requested consistency certification in letters to the
Coast Guard dated September 8, 1993, and to NOAA, dated September
15 and 28.
We need not inquire into the timeliness of NJDEPE's
request for consistency review of the Coast Guard action because
we have found the Coast Guard did not issue "a required Federal
0
The handbook states on its cover, "These guidelines supplement,
but are not part of the New Jersey Coastal Management Program,
September 1980." J.A. at 271.
41
license or permit."0 The voluntary submission of an Operations
Plan for review by the Coast Guard does not make LIPA an
"applicant for a required Federal license or permit" under 16
U.S.C. § 1456(c)(3)(A). LIPA sought review of its Operations
Plan for general compliance with law and regulation, and also
gave information to the Coast Guard for coordination and safety
purposes. The use of the term "approval" in the letter from the
Captain of the Port does not create a license or permit
requirement for this kind of shipping.0
NJDEPE points out that the Coast Guard had
discretionary enforcement powers which they did not exercise with
respect to the LIPA shipment. These powers are relevant here
only to show the nature of the Coast Guard's approval of the
Operations Plan -- the Coast Guard saw no violations of law or
0
Although we reach our decision independently, we note that NOAA
came to the same conclusion. In rejecting NJDEPE's request for
consistency review, NOAA concluded:
LIPA has not applied for a Federal license or
permit, and moreover, the Coast Guard has not
proposed any activities concerning the
shipment. LIPA was not legally required to
present the Coast Guard with its operation
plan for review, but elected to do so on a
voluntary basis.
Letter from Frank Maloney, NOAA, to Jeanne K. Fox, NJDEPE (Oct.
1, 1993) J.A. 230-31.
0
Section 930.51(a) of 15 C.F.R. defines "Federal license or
permit" as "any authorization, certification, approval, or other
form of permission which any Federal agency is empowered to issue
to an applicant." (Emphasis added.) Arguably, the Coast Guard
response to LIPA's Operations Plan could qualify as such an
approval, although we would hesitate to apply the term to a mere
refusal to exercise discretionary enforcement powers. We need
not decide whether the definition applies here, however, for even
if the Coast Guard did issue such an approval, the approval was
not required before shipment.
42
regulation in the plan, and found no need to exercise its
discretionary powers. The Coast Guard did not, for example,
exercise its powers under the Ports and Waterways Safety Act, 33
U.S.C. §§ 1221-32 (1988 and Supp. IV 1992), particularly the
power of the Secretary of Transportation (delegated to the Coast
Guard under 49 C.F.R. § 1.46) to order a vessel "to operate or
anchor in a manner he directs" if he believes the vessel does not
comply with applicable regulation, law or treaty, or for other
safety reasons, 33 U.S.C. § 1223(b). Furthermore, the Coast
Guard did not respond to the Operations Plan by exercising
discretionary powers to supervise and control movement of vessels
for protection of the vessel, waterfront facilities, or U.S.
waters, 33 C.F.R. § 6.04-8, to require the securing of permits
for handling, storage, loading and unloading dangerous cargo, id.§ 6.12-3, or to supervise the handling, etc. of dangerous cargo,
id. § 126.29. A list of discretionary powers, however, may not
convert the Coast Guard's non-action into a grant of a required
license or permit.
Because no required federal license or permit was
involved in the exchange between LIPA and the Coast Guard, the
Coast Guard did not violate the CZMA by not requiring a
consistency certification from LIPA.
C. Claims against PECo and LIPA
NJDEPE also complains PECo and LIPA violated the CZMA
by receiving federal licenses without submitting consistency
certifications. These claims suffer from a defect which the CZMA
claims against the federal agencies did not. While federal
43
statutes allow injured parties to sue for judicial review of
federal agency action, see, e.g., 5 U.S.C. §§ 701-06, CZMA claims
against private parties must be grounded in a right of action
found in the CZMA itself. Because we find the CZMA creates no
such right of action, these claims must fail.0
Where a statute does not explicitly create a right of
action for a particular party, a court may find such a right
implied only where it can confidently conclude Congress so
intended. Otherwise, "[i]mplication of private rights of action
may ``alter the remedial scheme devised by Congress for the
enforcement of statutory programs and . . . place the judiciary
in the role of enunciating or modifying policy decisions properly
the preserve of the legislature.'" American Telephone &
Telegraph Co. v. M/V Cape Fear, 967 F.2d 864, 866 (3d Cir. 1992)
(quoting United States v. FMC Corp., 717 F.2d 775, 780 (3d Cir.
1983)) (AT&T). In determining "the ultimate issue [of] whether
Congress intended to create a private right of action,"
California v. Sierra Club, 451 U.S. 287, 293 (1981), we follow
the four-part test set out by the Supreme Court in Cort v. Ash:
First, is the plaintiff ``one of the class for
whose especial benefit the statute was
enacted,' -- that is, does the statute create
a federal right in favor of the plaintiff?
Second, is there any indication of
legislative intent, explicit or implicit,
either to create such a remedy or to deny
one? Third, is it consistent with the
underlying purposes of the legislative scheme
0
We find only one published opinion on this question, New York v.
DeLyser, 759 F. Supp. 982 (W.D.N.Y. 1991), which concludes the
CZMA does not imply a state right of action against private
parties.
44
to imply such a remedy for the plaintiff?
[Fourth,] is the cause of action one
traditionally relegated to state law, in an
area basically the concern of the States, so
that it would be inappropriate to infer a
cause of action based solely on federal law?
Cort v. Ash, 422 U.S. 66, 78 (1975) (citations omitted).0
The Court has indicated that the first two criteria are of
primary importance, and "[i]f they do not point toward a private
right, the remaining two ``cannot by themselves be a basis for
implying a right of action.' By the same token, if the statute
and legislative history reveal congressional intent to create a
right of action, ``there is no need . . . to "trudge through all
four of the factors."'" AT&T, 967 F.2d at 866-67 (citations
omitted) (alteration in original).
1. Is NJDEPE an especial
beneficiary of the statute?
We first inquire as to whether NJDEPE is "``one of the
class for whose especial benefit the statute was enacted,' --that
is, does the statute create a federal right in favor of" NJDEPE?
Cort, 422 U.S. at 78 (citation omitted). The Supreme Court has
explained that "benefit to certain parties is, by itself,
0
This test applies to states as well as private parties seeking
implied rights of action. In FMC Corp, we applied Cort to a
claim by the federal government that it had a right of action
under a federal patent law. We stated, "Separation-of-powers
concerns apply with equal weight whether the enforcing party is a
private litigant or the United States. In either case, the
central problem is the same: did Congress intend to authorize a
right of action about which the statute is silent?" FMC Corp.,
717 F.2d at 780. That logic has equal force here --it is
Congress which must determine whether any particular party, be it
state, federal government, or private person, has a right of
action under a federal statute.
45
irrelevant: ``[t]he question is not simply who would benefit from
the Act, but whether Congress intended to confer federal rights
upon those beneficiaries.'" FMC Corp., 717 F.2d at 781 (quoting
California v. Sierra Club, 451 U.S. at 294). We look to the
statute itself for language explicitly conferring a right on the
plaintiff's class for indication Congress intended the plaintiff
to have a right of action. If we find the statute merely
"imposes a duty without an ``unmistakable focus' on the benefitted
class, [we] are reluctant to infer a remedy." AT&T, 967 F.2d at
867 (quoting FMC, 717 F.2d at 781).
As in California v. Sierra Club and FMC, we have a
statute which benefits the enforcing party, NJDEPE, but does not
confer federal rights that NJDEPE may assert against the private
defendants. In the CZMA, Congress alluded to "a national
interest in the effective management, beneficial use, protection,
and development of the coastal zone," 16 U.S.C. § 1451(a), and
found the key to promoting that interest to be "to encourage the
states to exercise their full authority over the lands and waters
in the coastal zone," id. § 1451(i). The CZMA therefore provides
for federal assistance in states' development of coastal zone
management plans, and coordinates federal activities with the
state management program. The states may benefit through
enhanced authority and healthier coastal zones, but this is to
serve the ultimate goal of protecting the nation's coastal zones.
This benefit does not translate into "a right in favor" of the
state that it can enforce against PECo and LIPa.
46
In the "Coordination and cooperation" provision at
issue, 16 U.S.C. § 1456, the absence of rights-conferring
language is marked. Duties are placed on applicants for federal
licenses: the provision requires "any applicant for a required
Federal license or permit to conduct an activity" affecting a
state's coastal zone to submit a consistency certification to the
federal agency, and to give a copy to the state. Id.§1456(c)(3)(A). Duties are also placed on federal agencies:
No license or permit shall be granted by the
Federal agency until the state or its
designated agency has concurred with the
applicant's certification or until, by the
state's failure to act, the concurrence is
conclusively presumed, unless the Secretary
[of Commerce], on his own initiative or upon
appeal by the applicant, finds, after
providing a reasonable opportunity for
detailed comments from the Federal agency
involved and from the state, that the
activity is consistent with the objectives of
this chapter or is otherwise necessary in the
interest of national security.
Id. These duties are not articulated in terms of rights of the
state,0 and there is no indication elsewhere of any right of the
state to enforce the duties. Indeed, the federal government
maintains control of the process from beginning to end: the
Secretary of Commerce must approve the state's coastal zone
0
As we have previously noted, Cort cited Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971), as an example of
an implied right of action found to be based on a clear
articulation of a federal right in favor of the plaintiff. The
Bivens right was based on the Fourth Amendment, which guarantees
the "right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures."
U.S. Const. amendment IV (emphasis added). See Cort, 422 U.S. at
82; AT&T, 967 F.2d at 870. The language of the CZMA makes no
such mention of rights.
47
management program, which is the basis of consistency review, id.§ 1455(d), and decides whether an application may be granted
despite a state's claim that it is not consistent with the
management program, id. § 1456(c)(3)(A). The language of this
statute thus "focuses on the class of persons on whom a duty is
imposed . . . and not on a class of intended beneficiaries," and
does not establish the state as the especial beneficiary. FMC
Corp., 717 F.2d at 783.
Where a statute provides neither an explicit right of
action for a particular party, nor clearly articulates a federal
right in that party, a right of action may only be implied where
there is a "``pervasive legislative scheme governing the
relationship between the plaintiff class and the defendant class
in a particular regard.'" AT&T, 967 F.2d at 870 (quoting Cort,
422 U.S. at 82). The CZMA is not such a scheme. While it
certainly affects the relationship between the state and private
parties applying for federal licenses, much of that relationship
is determined by other state and federal law. Furthermore, if
the CZMA is a "pervasive legislative scheme" at all, it is one
governing the relationship between state and federal authorities
with regard to coastal management.
2. Was there legislative
intent to create the requested
remedy?
Having found the language of the CZMA does not make the
states especial beneficiaries for purposes of implied rights of
action, we next look for "any indication of legislative intent,
48
explicit or implicit, either to create [the requested] remedy or
to deny [it]." Cort, 422 U.S. at 78. The legislative history
accords with the language of the statute, indicating no intent to
create this right of action.
NJDEPE cites to one statement from a Senate report
that shows the states were seen as integral to the coastal
management scheme being established in the CZMA:
[The CZMA] has as its main purpose the
encouragement and assistance of States in
preparing and implementing management
programs to preserve, protect, develop and
whenever possible restore the resources of
the coastal zone of the United States. . . .
There is no attempt to diminish state
authority through federal preemption. The
intent of this legislation is to enhance
state authority by encouraging and assisting
the states to assume planning and regulatory
powers over their Coastal zones.
S. Rep. No. 753, 92nd Cong., 2d Sess., reprinted in 1972
U.S.C.C.A.N. 4776. Federal support to the states serves the
overarching purpose of the statute, which is to promote better
management of the nation's coast: "The [Commerce] Committee has
adopted the States as the focal point for developing
comprehensive plans and implementation management programs for
the coastal zone." Id. at 4780. But, these statements of
purposes and goals do not represent an open-ended grant of
enforcement authority to the states. Rather, the statute
"assist[s] and encourage[s]" the states through explicit
measures, such as grants for development and administration of
coastal management programs, 16 U.S.C. §§ 1454-55, and the
consistency certification process, id. § 1456. A general
49
statement of intent to enhance state authority, given effect
through explicit measures in the statute itself, cannot be taken
to indicate an intent also to create rights of actions that the
statute fails to mention. It may be fairly said that "the
legislative history . . . is entirely silent on the question
whether a [state] right of action [against private parties]
should or should not be available." Touche Ross & Co. v.
Redington, 442 U.S. 560, 571 (1979). Where, as we have found,
"the plain language of the provision weighs against implication
of [the requested] remedy, the fact that there is no suggestion
whatsoever in the legislative history that [§ 1456] may give rise
to suits [against private applicants for federal licenses]
reinforces our decision not to find such a right of action
implicit within the section." Id.
50
3. Conclusion
Because we find the states are not especial
beneficiaries of the CZMA by its language, and no indication of
legislative intent to create a cause of action in favor of states
against private parties, we need not "trudge through" the
remaining two Cort factors. Merrill Lynch, Pierce, Fenner &
Smith v. Curran, 456 U.S. 353, 388 (1982)). "The question
whether Congress, either expressly or by implication, intended to
create a [state] right of action [against private parties], has
been definitively answered in the negative." Touche Ross & Co.,
442 U.S. at 576. NJDEPE's complaint against LIPA and PECo under
the CZMA must therefore be dismissed for failure to state a
claim.
V.
NJDEPE's motion for injunctive relief was properly
denied by the district court. A movant for preliminary
injunction must show:
that irreparable injury will occur if relief is not
granted to maintain the status quo until a final
adjudication on the merits can be made and that there
is a reasonable probability of eventual success on the
merits. In addition, the court must weigh the
possibility of harm to the nonmoving party as well as
to any other interested persons and, when relevant,
harm to the public.
Continental Group, Inc. v. Amoco Chem. Corp., 614 F.2d 351, 356-
57 (3d Cir. 1980). Because we find that NJDEPE must fail on the
merits of its case, no injunction can issue.
As we have discussed, NJDEPE had several avenues to
present its claims other than as a request for an injunction. It
51
could have petitioned for rescission of the NRC regulation it
objected to, 10 C.F.R. § 2.802(a), for an exception to the
application of that rule here, id. § 2.758(b), or for a
modification or suspension of PECo's license that allowed
transportation of the fuel, id. § 2.206. Some of these options
are still viable.
VI.
For the reasons stated, we will affirm the district
court's dismissal of NJDEPE's claim against the NRC under NEPA,
and its grant of summary judgment to the Coast Guard on the CZMA
claim. We will also instruct the district court to dismiss
NJDEPE's claim against the NRC, PECo, and LIPA under the CZMA.
52