Pacific Gas & Electric Company v. State Energy Resources Conservation and Development Commission – Oral Argument – January 17, 1983

Media for Pacific Gas & Electric Company v. State Energy Resources Conservation and Development Commission

Audio Transcription for Opinion Announcement – April 20, 1983 in Pacific Gas & Electric Company v. State Energy Resources Conservation and Development Commission

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Warren E. Burger:

We’ll hear arguments next in Pacific Gas and Electric Company against State Energy Resources and Development Commission.

Mr. McDonough, I think you may proceed whenever you’re ready.

John R. Mc Donough:

Mr. Chief Justice, and may it please the Court:

There are two substantive issues before the Court in this case.

The first is whether California can place a moratorium on the construction of nuclear power plants until the California Energy Commission, the principal respondent here, has determined to its satisfaction that there exists a demonstrated technology or means for the disposal of high-level nuclear waste.

The second substantive issue is whether California can refuse to permit a specific nuclear power plant to be built in the state until the Energy Commission finds that there are or will be facilities with adequate capacity to store at any given time the spent nuclear fuel produced by the plant plus all of the fuel loaded into the plant’s reactor at that point in time.

The first of those issues is raised by the enactment by California in 1976 of Section 25524.2 of the California Public Resources Code, referred to in the briefs as the waste disposal statute; and the second issue is raised by the enactment in that same year of Public Resources Code Section 25524.1(b), referred to as the waste storage statute.

Petitioners contend that both of those statues are invalid as preempted by the Atomic Energy Act of 1954, as supplemented by the Nuclear Waste Policy Statute of 1982, which was signed by the President just ten days ago.

There are also, however… there is also, however, before the Court the question of the validity or the… the question of the justiciability of those issues or the ripeness of those issues for determination.

And I shall address the ripeness issue first.

Byron R. White:

Well, could I… you mentioned a statute that was recently passed.

John R. Mc Donough:

Yes, Your Honor.

Byron R. White:

Now, would that be… is that statute arguably dispositive for one side or the other?

John R. Mc Donough:

It is in our view.

It is supportive of the position that we are taking in this case, Your Honor.

The statute–

Byron R. White:

And contrary to the… contrary to the Court of Appeals.

John R. Mc Donough:

–Well, the Court of Appeals had no opportunity to consider–

Byron R. White:

Oh, I know.

But it’s–

John R. Mc Donough:

–Yes.

Byron R. White:

–But it’s contrary to their judgment.

John R. Mc Donough:

Yes, Your Honor.

Now, that statute was first called to this Court’s attention in our reply brief at page 13 when we noted that it had then been enacted by Congress, not yet signed by the President.

It was again called to the Court’s attention last week by the letter of the Solicitor General informing the Court that this statute had been enacted.

Sandra Day O’Connor:

Should the case be remanded then to let the California court take a look at that new legislation?

John R. Mc Donough:

Well–

Sandra Day O’Connor:

In CA 9–

John R. Mc Donough:

–Your Honor, it seems to us that the case can be disposed and ought to be disposed of by this Court taking account of that statute as well as the Atomic Energy Act of 1954, as amended; but I take it that would be a question for the Court to decide.

We will be making reference to the 1982 statute in the course of our argument this afternoon, as I believe indeed the Solicitor General will.

Sandra Day O’Connor:

–Do we have a copy of that in the material you have filed with the Court, Mr. McDonough?

John R. Mc Donough:

A copy of the statute, I’m informed, was sent to the Court by the Solicitor General last week.

Byron R. White:

Yes, it’s only 60-some pages long.

John R. Mc Donough:

It is a lengthy statute, Your Honor.

[Laughter]

Warren E. Burger:

But your position is that you don’t need that statute at all, I take it.

John R. Mc Donough:

Well, our position is, Your Honor, that it… it stands as a reaffirmation of the view of the federal government’s responsibility for and willingness to accept responsibility for and deal effectively with the problems both of the disposal of radioactive waste on a schedule set forth in the statute and pursuant to procedures described in the statute, and that it also deals extensively with the question of interim storage of waste–

William J. Brennan, Jr.:

And yet, Mr. McDonough, if the statute had not been enacted, you’d still be here, wouldn’t you?

John R. Mc Donough:

–Indeed, I would, Your Honor.

William J. Brennan, Jr.:

You’d rely then only on the ’54 statute.

John R. Mc Donough:

Yes, Your Honor.

William H. Rehnquist:

In a sense you came before it was enacted.

John R. Mc Donough:

Yes, indeed, Your Honor.

We were here and all the briefs were filed, except the reply brief by ourselves.

The statute was enacted, as I say, signed by the President only on January 7, 1983.

But it does… it does… it represents the facing up, if you will, of the federal government to two problems that are the subject matter of the statutes before this Court; that is to say, how will the nation deal with the problem of the disposal of high-level nuclear waste, and how… and before that problem can be solved, how will the nation deal with the subject matter of the interim storage of that waste pending its ultimate disposal.

And in both of those respects the statute assumes a federal responsibility, sets out procedures to be followed by the federal government, and sets a timetable for the accomplishment of objectives, and specifically defines in each category the role of the states, the precise role which the states are to have in dealing with this problem.

John Paul Stevens:

But the only role of the states in that statute is in the selection of the permanent disposal site, isn’t it?

Isn’t that all the state participation that’s involved there?

John R. Mc Donough:

Yes.

Your Honor, what the statute does–

John Paul Stevens:

That really doesn’t have much to do with the issue before us.

John R. Mc Donough:

–No, I think it does, Your Honor.

The contention here is that the states may deal, as California has, with the problems of final disposal of nuclear waste, on the one hand, and interim storage of nuclear waste–

John Paul Stevens:

Well, California’s just saying we want to wait until we know what the federal solution is.

John R. Mc Donough:

–Yes, Your Honor.

And I think that the message from the statute is that Congress does not want to wait, wants the subject matter of the continued operation of nuclear plants to proceed, and has set forth in detail the procedures to be followed to that end.

John Paul Stevens:

And it also made it rather clear that the final federal answer won’t be available for several years.

John R. Mc Donough:

Well, the final federal… that’s right.

John Paul Stevens:

And the question here is whether… can the states say we want to wait until that answer is… I’m not suggesting one way or another, but I don’t really see that that bears on the preemption issue that we have before us.

John R. Mc Donough:

Well, Your Honor, what our position is with respect to the disposal of nuclear waste, that the federal government has assumed responsibility for that, has set out a procedure to be followed to reach that end, has set a target date of January 1, 1989 for the licensing of the first disposal facility.

The NRC in the meantime has already decided, as we of course pointed out in our brief, that as far as–

John Paul Stevens:

And the question… one of the questions here is whether California can say we want to wait until January 1, 1989 before we okay any more of these plants.

John R. Mc Donough:

–Yes, Your Honor.

As I–

John Paul Stevens:

That’s the question.

John R. Mc Donough:

–Well, all right.

The NRC has already said in that respect insofar as it is concerned the licensing of nuclear power plants by the NRC need not wait the solution of the long range disposal problem.

We think the statute in dealing with the problem in the way that it has dealt with the problem and does deal with the problem indicates, reaffirms the federal government’s view that this is a matter for the federal government to decide, and that it should decide all matters in relation to the problems of the disposal of high-level nuclear waste; further affirms the federal determination to go forward and solve that problem, and therefore buttresses what we say is affirmed and found in the ’54 Act, as amended, in any event.

It does seem to be a current enactment of considerable relevance to the issues before the Court, and we thought that it ought to be brought before the Court for its consideration.

Turning to the issues raised by the respondents as to the justiciability of the questions before the Court this afternoon, respondents have contended that because the Court’s writ brings before the Court only the two statutes that I have mentioned and not others, that the Court here really lacks Article III jurisdiction.

That contention is based on the fact that the action as filed below challenged the validity of a large number of statutes included in California’s Warren-Alquist Act, and in particular challenged the validity of about a dozen statutes which taken together set forth a procedure whereby one wishing to build a nuclear power plant in California must file an application for first a… a… what’s called a notice of intention and later an application for certification, and then engage upon a procedure in which the California Energy Commission subjects that application to the same kind of inquiries as are made by the NRC in the case of an application for a license to build and later to operate a nuclear power plant.

We said all of those statutes, which we describe as the certification system statutes, were also invalid.

Those questions are not before the Court for decision, and so the contention is that we are not in a position to get a redress from a decision of this Court; that our injury is not redressable.

We have two responses to make to that, the first of which is that a favorable decision by the Court on the two issues before the Court this afternoon would dispose of two discrete injuries to the petitioners arising out of these statutes.

It would… it would… it would strike down the… the… the moratorium statute and would as well strike down California’s attempt to become involved in the question of deciding how nuclear waste should be stored before it’s disposed of.

Such a favorable decision would also in… of necessity set out the rationale of the Court’s decision in terms that could well be applicable and would be applicable, we are certain, to the other statutes that are challenged by petitioners or were challenged below.

And this particularly with respect to the waste storage statute, because that really is functionally a part of the certification system.

William H. Rehnquist:

I understood respondents’ contention to be, Mr. McDonough, that your contentions had been kind of like perhaps Christmas trees in parallel rather than in series; that it was the combined effect of each and every one of these statutes that caused you to be uncertain, your client to be uncertain as to whether he could go ahead and build.

And that if you couldn’t challenge a part of this combined weight, so to speak, there was no reason to think that just partial relief was going to solve your problem.

John R. Mc Donough:

Yes.

Indeed that is his position, Your Honor.

My response to it is simply to say first we will have this… we will have this enlightenment from the Court which will afford an opportunity at that point to reassess the situation of the petitioners to see whether the concerns they felt at the point in time that the action was filed are still sufficiently valid to preclude them from going ahead.

The second point we would make in response to this contention is that certain redressability by this Court, its judgment or decision, has not always been an absolute requirement of Article III jurisdiction.

In that… in that respect we refer to the Orr against Orr case decided in 1979 where the Court decided and struck down the Alabama alimony statute because it did not impose an obligation on both husbands and wives to pay alimony, even though it was not certain at that point that the husband petitioner would have relief by reason of this Court’s decision, both because there was a possibility that he was bound by contract in any event to pay the alimony, and because the legislature of Alabama might revise the statute to impose a duty on both parties.

For those reasons we believe that the first point raised by the respondents as to the ripeness or justiciability of the issues is not well taken.

With respect to the ripeness of the moratorium statute itself, we believe there simply that the Court of Appeals was entirely correct.

The court said that the challenged statutes stand as an absolute barrier to the construction of the proposed plants, and that that barrier be removed by striking down the statutes.

That would satisfy, we feel, the Article III component of ripeness.

The court also said that the issue was purely a legal one and that it would not be… its judgment on that issue would not be helped significantly by delay, and that delay would cause substantial hardship to the utilities.

John R. Mc Donough:

That, we think, was the appropriate decision with respect to ripeness on that particular statute, and that the same reasoning, the same rationale should have been applied by the Court of Appeals to Section 25524.1(b) for the same reasons; that is to say, it is one of the statutes that constitutes a barrier.

The issue is a legal one.

With respect to the issue of preemption itself, in our view when California enacted these two statutes in 1976 it could not have entered a more preempted area of this subject matter of nuclear power plants and their governance.

Congress has always accepted responsibility for the… for the disposition, the storage and disposition of nuclear waste.

As I referred to earlier, the NRC has decided that it will not withhold its licensing procedures or withhold a license merely because the long-range disposal problem has not yet been solved.

I referred earlier to the 1982 statute.

Let me just incorporate that by reference, noting that what it does is to set out with respect to both long-range disposal and interim storage specific procedures whereby the federal government assumes responsibility for solving those problems within a short space of time, and with respect to interim storage particularly, provides that the federal government shall assist the utilities to be certain that there will be ample interim storage available until the depository problem is solved.

Mr. Chief Justice, I will reserve the balance of my time until–

Sandra Day O’Connor:

Mr. McDonough, may I ask you a question before you sit down?

Is it your position that under the federal legislation previously existing that the states can determine whether to permit a power plant to be built at all within a state?

John R. Mc Donough:

–Yes, Your Honor, in several respects.

That is to say, first the state can decide whether there’s a need for any kind of a power plant and decide that question negatively.

The question, the state can decide whether a particular power plant is too expensive.

Sandra Day O’Connor:

Can it decide that it wants a nuclear plant or does not want a nuclear plant?

John R. Mc Donough:

No.

It cannot decide simply… the state, in our view, Your Honor, simply could not pass a statute saying we will not have any nuclear power plants in this state.

That runs counter to the promoting, encouraging, fostering policy of the federal government and… and the… as expressed in the 1954 Act.

William H. Rehnquist:

Could it pass a statute saying we will not have any hydroelectric plants in this state; we’ll use only coal-fired plants?

John R. Mc Donough:

Yes, Your Honor, I believe it could.

The thing that… that makes the situation here different is the fact that Congress has evinced a strong intention to have nuclear power plants as part of any utility’s mix, assuming that there is no… the states cannot discriminate against nuclear power, let me put it that way.

Congress has done this in a variety of ways, Your Honor.

First, they have made the nuclear materials available to the private sector.

Second, they have made the technology available and have provided research and development to develop that technology.

Third, they have priced… they have passed the Price-Anderson Act which limits liability of the private operator and provides funds to help them meet that financial responsibility.

Fourth, they have provided an expert agency to license these plants and to give the public confidence by its licensing process.

Fifth, they have just as recently as ten days ago enacted new legislation carrying forth the federal policy that there shall be nuclear power plants.

What we say is the states can apply those… can make those decisions normally within its… its capability of making, applying them in a nondiscriminatory way against nuclear power plants.

What the states cannot do is to regulate the construction or operation of nuclear power plants or the interim storage or long-range disposal of nuclear waste.

Byron R. White:

Well, you… I take it if the state… if there’s an application to the state commission for building a new coal plant–

John R. Mc Donough:

Yes.

Byron R. White:

–And the commission says sorry, but we don’t need any more power plants in this state, the fact that another entity comes in and applies for a state permission to build a nuclear plant, even though it’s licensed by the federal authority, the state could still keep that plant out.

John R. Mc Donough:

Yes, sir.

If it was making a nondiscriminatory application of a general decision by that state not to have any new power plants–

Byron R. White:

And you say that… and you say that that kind… you say that that kind of an economic decision is not involved in this case.

John R. Mc Donough:

–Not involved in this case, yes, Your Honor.

Byron R. White:

You say the state’s statutes are safety statutes rather than economic statutes, aren’t you?

John R. Mc Donough:

What we’re saying is whether… first we say yes, they are safety statutes.

And second we say whether or not they’re safety statutes, they are statutes that deal with the very subject matters that are regulated by the federal government… the construction and operation of nuclear power plants.

William J. Brennan, Jr.:

Could they say, Mr. McDonough, no, maybe we could use one, maybe we need one, but this is just going to cost too much, and the possible burden on the state’s economy is so great that we’ll not allow that plant to be built?

John R. Mc Donough:

We say they can do that, Your Honor, if they do it, again, in a nondiscriminatory, evenhanded way.

If they say $3 billion is simply too much and we won’t let… we won’t have a coal plant or a hydro plant or a nuclear plant–

Byron R. White:

Well, what if they say well, we think the… we think they can dispose of nuclear waste safely, but it’s going to cost so much and escalate the cost of electricity so much that we’re just not going to have a nuclear plant?

John R. Mc Donough:

–Well, Your Honor, I think that if they make an… a fair determination.

After all, they’re entitled to take into account the cost of a plant, and if they decide that this factor–

Byron R. White:

Well, what did… did they do more than that here?

John R. Mc Donough:

–Well, they… no, they did not do more than that here.

In fact, they didn’t do that much here.

But in any event, our position… our position is that they can make that kind of… that kind of decision.

The kind of decision that is preempted is the decision that relates to the construction and operation of nuclear power plants.

The kind of… the very decisions that the NRC makes are the decisions which the state cannot make.

Now, that means that there are dividing lines and distinctions to be drawn; but we think those are required by the federal policy expressed in the ’54 Act.

Warren E. Burger:

Mr. Claiborne.

Louis F. Claiborne:

Mr. Chief Justice, and may it please the Court:

First perhaps a word about the relevance of the new statute enacted ten days ago.

It may be… we can’t say that it wouldn’t… that it would be wholly inappropriate for this Court to remand to the court below to reconsider the case in light of that statute.

We do not urge that course because we are not at the jurisdictional stage.

The case has been fully briefed.

It’s now being argued before this Court.

And that statute cuts only one way.

It simply strengthens the case for reversal.

Louis F. Claiborne:

There is, what is more, an urgency in the matter.

One of the petitioners… the petitioner has spent some $10 million in developing plans for a plant.

That process has been stopped.

There is a federal commitment, a national commitment to the construction of further plants.

And putting those various considerations together, it seems to us unnecessary for this Court to remand.

Now, the relevance of that statute is that it reaffirms the federal responsibility and jurisdiction with respect to this discrete question of storage and disposal of nuclear waste.

Some 63 pages of that statute are devoted to no other subject.

What is more, it indicates a congressional view, endorsing the view of the Federal Regulatory Commission, that plants will not shut down, as California fears or pretends to fear, because of the storage or disposal problem.

Congress has provided that in case there is a storage problem, there will be a federal facility to take the excess.

It has furthermore provided through procedures which are lengthy, in which the states are fully consulted, that there will be a final disposal solution.

John Paul Stevens:

Well, Mr. Claiborne, doesn’t that just, in one sense, just mean that the utilities can know when one of the conditions that the state wishes to impose will be met so they can plan on saying well, we’ll assume the federal deadlines will be met, so we can target… we know when we will also meet the state condition, which is there must be permanent storage in existence?

Louis F. Claiborne:

Justice Stevens, in the meantime they must wait because they cannot proceed further without certification from the California commission which is not permitted under its law to give that certificate until not merely Congress has indicated that the problem will be solved, but that the problem has been solved.

John Paul Stevens:

Right.

Louis F. Claiborne:

And that the federal commission has approved that solution, and indeed that a site has been selected.

And as Your Honor pointed out, those procedures are ten years or seven years in the future.

And in the meantime, California has said nothing further may occur.

That delay is substantial.

Leaving the new statute aside and concentrating on the federal laws that, in our view, at all events control this case so as to require a reversal of the judgment below, we wish to stress that what is present here are two sorts of conflicts.

One is an actual present conflict between the policy of the federal government through its nuclear commission and the laws of California.

That is most obviously illustrated in that the federal commission continues to license nuclear power plants, notwithstanding that there is as yet no federally-approved final disposal solution, whereas California says we disagree.

We will not allow any plant to be certified or built in California until such time as a federally-approved waste disposal system is found.

And what is more, our legislature is satisfied with that solution.

There is another sort of conflict, equally serious, which is a conflict of jurisdiction: who shall decide these questions of storage and disposal?

California says we will determine, our commission must determine whether in our view there is available storage space, whereas the federal commission has determined to license plants without requiring the kind of storage facility that California leaves itself free to require.

If any area appears to us to have been wholly preempted… and this is most evident in Section 274(c) of the ’59 Act… it is the area of construction, design and disposal of waste.

California is permitted under that ’59 Act, like any other state, to make agreements taking over the jurisdiction of the federal commission with respect to fringe areas but not disposal or storage of high-level nuclear wastes.

California, like every other state, is permitted by Section 274(l) to give advice, to be consulted with respect to these matters of storage and disposal.

But the commission, the federal commission under the act very clearly retains its jurisdiction, its responsibility with respect to storage and disposal, as is made clear in Section 274(c).

Now, the section on which the respondents rely and on which the court below relied was 274(k), an inartfully worded provision which read most generously might be read to suggest that California can regulate any activity respecting the building or operation of a nuclear power plant so long as it does it with a motive other than protection against radiation hazards.

We suggest it cannot reasonably be read that way in light of the other provisions of the act which I have sketched, because otherwise it would mean that notwithstanding the federal judgment that there is an adequate means of disposal and an interim storage capability, California could say we will ban all plants, not for fear of radiation but because it’s aesthetically displeasing to us, it will, in our view, endanger the environment other than through radiation–

Sandra Day O’Connor:

Well, can the states just say nuclear power plants cost too much, and therefore we don’t want them?

And is that what they’ve done?

And maybe they cost too much because of the waste disposal problem.

Can a state do that?

Louis F. Claiborne:

–Justice O’Connor, California has not… had California said and been able to sustain the proposition that it was, in effect, for the time being banning nuclear plants because they were going to produce rates for their consumers that were too high, there would be no quarrel with that.

That is the authority which the states retain over the sale and transmission of electrical power, and they may do that with respect to nuclear plants as with others.

And they may determine that the cost of the electricity will simply be too high.

Sandra Day O’Connor:

Well, the state is–

Louis F. Claiborne:

But they’ve done something quite different.

Sandra Day O’Connor:

–Well, the state is arguing they’ve done just that, aren’t they?

Louis F. Claiborne:

No.

Even–

Sandra Day O’Connor:

In subsection (4) in the act?

Louis F. Claiborne:

–I think the state has to concede that since the moratorium is only effective until such time as a federally-approved disposal system is in existence, they’re not concerned that power plants per se produce electricity at too high a rate.

The existence of the disposal system isn’t going to change the cost of production.

They are, say they, concerned that the plant may be required to be shut down and that the reliance on that electricity may put their citizens at risk.

That fear involves a second-guessing of the federal judgment that there is no such problem of ultimate disposal, and that fear is therefore not one on which California can properly halt the licensing of nuclear plants.

And in this respect the new statute is of special relevance because it says at the federal level it has been determined… and indeed by Congress itself… that this problem will be solved.

You must, therefore, California, put that out of mind as a pretext for banning nuclear development in your state.

We completely agree that if California were to say we need no electric power of any variety, they could bar nuclear as well as any other generating facility.

John Paul Stevens:

Mr. Claiborne, may I ask you one question about your interpretation of 24.2, the California statute that says that no nuclear fission thermal power plants shall be permitted land use in the state until after the permanent storage condition has been met.

What does that mean about

“shall be permitted land use in the state? “

They cannot construct the plant or cannot operate the plant?

Louis F. Claiborne:

I take it neither, Justice Stevens.

John Paul Stevens:

Neither.

Could not even begin construction until the… the… the–

Louis F. Claiborne:

I think that is so.

The statute does go on to say

“nor shall a certificate be issued. “

Louis F. Claiborne:

which is–

John Paul Stevens:

–I understand.

Louis F. Claiborne:

–A prerequisite to building it.

Warren E. Burger:

Mr. Tribe.

Laurence H. Tribe:

Mr. Chief Justice, and may it please the Court:

Mr. Claiborne says that the 1982 statute cuts only one way in this case.

We agree, but we think it cuts entirely in favor of affirmance, though not terribly strongly.

Let me explain why that is when I discuss it in the context of the remaining federal statutory provisions.

We think that the issue in this case is quite simple.

It is a state’s authority to decline the nuclear option simply as too uncertain, too costly, to discontinuous, until the states have been assured by actual federal resolution and not simply by a commitment to resolution, assured by actual federal resolution of the nuclear waste, storage and disposal problem that their current fears will not materialize.

Such state authority can be and has been exercised in a variety of forms: by statute in California, Connecticut, Maine and Oregon; by referendum in Massachusetts; by executive order in New York; by an order of the Public Service Commission in Wisconsin.

Indeed, similar authority is quite routinely exercised on a plant-by-plant basis in Arizona, Minnesota, Illinois, a couple of dozen other states.

On the basis of a judgment that until we know what to do with the waste, and where it will go, and how much it will cost we cannot make a reasonable, economically sound commitment to nuclear power–

Warren E. Burger:

How long will it be before a plant of this kind in this situation could be completed after the certificate is issued?

Laurence H. Tribe:

–It could probably take a dozen years, Mr. Chief Justice.

Warren E. Burger:

Well, then isn’t… doesn’t that allow quite a bit of time to resolve some of these problems?

Laurence H. Tribe:

You mean how long until a nuclear plant that they seek to build?

But the point is they don’t want to invest billions of dollars that they will then seek to recover from our ratepayers, leaving them holding the bag, something neither they nor we want, until they have some assurance.

In that sense there is a convergence of position between the respondents and petitioners.

Warren E. Burger:

Well, if they thought… if the petitioners here can’t satisfy the federal regulatory authority on the safety, they’ll never have a plant in operation, will they?

Laurence H. Tribe:

But the point is, Mr. Chief Justice, that the federal concern is, as you say, precisely safety; and they can satisfy federal authorities who have decided that while the search for a storage and disposal solution goes on, it may be safe to keep licensing plants.

And it’s for that reason that we say that the questions addressed at the federal and state levels are wholly different.

The reason it may be entirely safe to keep licensing plants even when we’re not sure whether we will ever find adequate storage and disposal facilities is that when push comes to shove, one can always order them shut down.

That is indeed what the Environmental Protection Administration warned California some seven months before these laws were enacted.

Now, to shut down is safe, but it leaves us with–

Warren E. Burger:

Isn’t the worst that could happen… isn’t the worst that could happen for the investors of the… in this kind of an enterprise that they might have a lot of ghost plants on their hands if they can’t satisfy the safety requirements?

Laurence H. Tribe:

–I’m afraid, Mr. Chief Justice, the ghosts will haunt the people of California, not just the investors.

Warren E. Burger:

How do the people pay for this plant?

Laurence H. Tribe:

Through higher rates that are forced upon them for substitute electricity; that is, if it were really assured in advance somehow that only the shareholders in the utilities would end up suffering when cost interruptions… when service interruptions occur when shutdowns are ordered, we’d have a very different nuclear industry in the United States.

It is precisely because investors can count on the utility commissions to pass some of those costs on that the situation is of fundamental concern to the State of California.

Laurence H. Tribe:

I think it’s important–

William H. Rehnquist:

Well, can’t California count on its own state utility commission to follow state policy and to set its face against this passing on of costs?

Laurence H. Tribe:

–Well, of course, I suppose if the entire system of California were restructured so that it were made bindingly clear in advance that in no circumstances would costs be passed on, we’d have a different case here.

But in that case I doubt that the petitioners… who have not made this argument; it’s being made only by the United States… I doubt then that the utilities would have any real interest in taking these enormous risks.

Thurgood Marshall:

But in California they could do it by referendum very easily, couldn’t they?

Laurence H. Tribe:

Well, California by referendum, as Massachusetts could do, could say we’re waiting until the problem is solved.

It doesn’t really want to take–

Thurgood Marshall:

But couldn’t it by referendum prevent them from passing it on?

Laurence H. Tribe:

–But… I suppose it could prevent by referendum at this point from passing it on, but then when they confront bankruptcy and come back to ask for help, we’d face a different situation.

It’s not just the pass-on of costs that’s a problem.

Thurgood Marshall:

But I mean that–

Laurence H. Tribe:

We want the electricity.

Thurgood Marshall:

–The state is not… the state is not helpless.

Laurence H. Tribe:

One of the things that we think the state has a clear right to do is wait until the problem is solved before making the commitment.

One of the reasons for that is that if these utilities invest in nuclear power, even if in the end it’s a bunch of California shareholders who go broke rather than the ratepayers who pay too much, even if that could be assured, there remains the problem of an interruption of a continuous electrical source.

Thurgood Marshall:

That’s a legislative argument.

Laurence H. Tribe:

The legislative argument was resolved by the legislature–

That’s what you… that’s what you–

Laurence H. Tribe:

–In a way we think they had a right to resolve it.

Lewis F. Powell, Jr.:

–Mr. Tribe?

Laurence H. Tribe:

Yes, Justice Powell.

Lewis F. Powell, Jr.:

You do not, I assume, question the authority of the federal government to preempt this field if it specifically did so.

Laurence H. Tribe:

Not at all.

And we think precisely because they have that authority, they don’t need the help of the federal judiciary in finding preemption where it has not been expressly adopted.

In the… in 1982 Congress was asked to preempt the field quite explicitly through something called the McClure amendment, which would have said, as petitioners and the United States seem to think it did say, that we have in fact solved the waste disposal problem or are certain that a solution will be available on time.

That language in the Senate version which was passed last year, and similar language which was proposed to the House was expressly deleted.

And Representative Ottinger, who played an important role in the drafting the law, said it was deleted to avoid preemption.

William H. Rehnquist:

Well, the bills that Congress didn’t pass have really never carried much weight here, have they?

Laurence H. Tribe:

No.

I think, Justice Rehnquist, certainly they haven’t and shouldn’t; but the provisions that were specifically deleted in a bill of this kind at least suggest that what the petitioners asked the federal judiciary to do is something that the industry has repeatedly asked Congress to do and Congress has repeatedly refused to do, as in Dames and Moore v. Reagan and in other such cases.

Laurence H. Tribe:

It seems quite clear that the significance of congressional inaction may be ambiguous, but in this case it’s very clear, and the history leaves no doubt, that Congress omitted the very language that would have suggested there is no waste disposal problem.

William H. Rehnquist:

And, of course, one of the reasons we don’t give a great deal of attention to what Congress didn’t enact is perhaps some people voted against it because they thought it was already there.

Laurence H. Tribe:

If the only issue before them was preemption, that might have been true; but the thing they voted against was a measure that would have specifically declared the waste disposal problem is solved, and any legal requirement that requires its solution as a precondition of licensing more nuclear plants shall be deemed satisfied.

That’s, of course, what I think that the petitioners and the United States want to make out of this act.

But to put that act in context, all it does is say that there shall be some federal backup interim storage which amounts by the year 2000 to about 3 percent of the amount of storage space that even the Department of Energy says will be needed.

And then it says we’re going to get back on track and somehow solve the problem of permanent waste disposal by perhaps the year 1990 or so.

Promising it will be solved is very nice, but there are a lot of places that we could go off track.

A state could veto it under this bill, could veto a location for a repository; and unless Congress and the President override the veto, we’re back to ground zero.

And in any event, you cannot mandate by law the solution to a technological problem.

California says until you solve that technological problem, this is too risky a gamble for us.

And I thought it was–

Warren E. Burger:

Well, what if a… what if a state attempted to pass a statute that… let’s assume some newer development in air travel along the lines of the three-hour planes to London and Paris, but that they were thought to be of uncertain safety.

Could a state say none of these planes can pass over our state until you’re absolutely sure that none of them will ever fall?

Let’s assume it’s an atomic-powered airplane.

That might give us an analogy.

Laurence H. Tribe:

–Well, I would think once the jurisdictional dispute between the FAA and the NRC had been resolved, the state would probably be out of luck, because the safety of an atomic-powered airplane would not be up to California to judge.

But if California says we don’t want our utilities or our chartered entities, if you can imagine a special industry of this kind, to invest lots of money that may have to come from California pockets in that kind of airplane until they’ve built some airports for it so that we know where it can land, that would be a reasonable economic judgment California could make.

Warren E. Burger:

Well, we’ve already got that with reference to atomic-powered ships, including submarines, have we not?

Laurence H. Tribe:

Well, in the military area California makes no claim whatever.

The claim here is that with respect to the degree to which a state must depend on nuclear power to meet its energy needs, that at no point has Congress ever decided or the NRC ever decided that that is a judgment for the federal government to make.

It’s always been a judgment for the state.

One can’t put need and cost in neat little compartments as though they were not affected by those things that might require the plants to shut down.

And the statements that are made by the petitioners and by the United States I think are profoundly misleading in this respect.

Congress, they say, is willing to license the plants by betting on the future, even though there may be risk of some shutdown.

They don’t take that risk so seriously.

Therefore, they say, for the State of California to have a different judgment is wrong.

The mistake there is that Congress’ willingness to license the plants while searching for a solution represents nothing more than a belief that the mandate of the Atomic Energy Act to provide a safe nuclear option can be met even before we’ve discovered what to do with the waste.

Lewis F. Powell, Jr.:

Mr. Tribe, you’ve emphasized the interest of the federal government in safety.

If this case had arisen in 1973, what do you think the primary concern of the federal government would have been, in light of the embargo of oil from the Middle East?

Laurence H. Tribe:

Well, I suppose in 1973 the federal government’s concern might have been that we need to have less dependence on oil, more dependence on nuclear power; and therefore, we might enact a law saying that those who own utilities have got to put nuclear power on the shelf.

Laurence H. Tribe:

Notice, Congress didn’t pass such a law.

Did not pass it.

Laurence H. Tribe:

Didn’t pass such a law because those who own nuclear… those who own electricity-generating utilities, whether they are private companies or whether they are municipalities or states, are left entirely free, even under their interpretation of the Atomic Energy Act, to say this is a bad investment.

It is only when there is a separation between those who regulate and those who own, on the theory of the petitioners, that there is some sudden mandate to go nuclear.

Now, that makes no sense in terms of independence of oil, in terms of any other coherent federal policy.

If the federal government wanted to make a decision that we really have to choose at least 20 percent of our energy sources from nuclear, Congress would not be without means of legislating such a choice.

But the most consistent pattern in the entire history of legislation in this area is that the choice of technology in light of risks of shutdown, risks of interruption, cost uncertainties, and other factors has been left to the states.

Indeed, the comparison with hydroelectric power, in response to your question, Justice Rehnquist, I think is quite instructive, because when the Atomic Energy Act in 1954 was debated and passed, Senator Humphrey proposed that the Atomic Energy Commission’s control over nuclear power be as comprehensive, as pervasive as the FPC’s control over hydroelectric power; that it should be treated as a national resource to be dealt with in terms of foreign policy and other concerns.

That proposal was debated.

It was opposed by Senator Hickenlooper on the specific ground that it would be a federal usurpation of state sovereignty to give the Atomic Energy Commission that broad a role.

And it was replaced by the much narrower role of federal regulation of radiation hazards, which, of course, California does not challenge.

Indeed, all California asserts here is not the right–

William H. Rehnquist:

How did that discussion occur?

Was that in the context of the ’54 Act or the ’59–

Laurence H. Tribe:

–Yes.

That was the ’54 Act.

William H. Rehnquist:

–Is that where the preemption of radiation hazards occurs, or is that in the ’59 Act?

Laurence H. Tribe:

Well, there are two steps, Justice Rehnquist.

In 1954 there was a decision to end the federal monopoly over nuclear materials, but there was a very close federal control over those in the private sector who would use them.

The states were given no special role except that their preexisting role of regulating the generation of electricity was kept intact in Section 271.

William H. Rehnquist:

Well, pre… preexisting role with respect to electricity.

The states had never had any part in regulating atomic energy.

Indeed, there was no civilian regulation right after the war; it was all military.

Laurence H. Tribe:

Yes, Justice Rehnquist.

Then in 1954 neither the states nor the federal government were regulating nuclear power plants because there were none.

The first prototype was built in 1957.

But the point was it was anticipated, hoped that there would be a nuclear power industry, and the attempt to structure that industry by federal law was rejected.

Instead it was said that the regulatory structure in place for generating electricity would be the available one, except that the federal government–

William H. Rehnquist:

You say it was said.

It certainly wasn’t said in haec verba in the ’54 statute, was it?

Laurence H. Tribe:

–Except in the ’54 statute after the debate about the role of the states in the federal government, the language of Section 271 was adopted saying that

“nothing in the act shall be construed to affect the authority or regulations of any state with respect to the generation, sale or transmission of electrical power produced through federally-licensed nuclear facilities. “

William H. Rehnquist:

Did that… is that a ’54 and not a ’59 section?

Laurence H. Tribe:

Correct.

That’s ’54.

Section 271.

Now, in 1959 the decision was made that the Nuclear Regulatory Commission, then the AEC, could relinquish some of its power over radioactive materials under agreements with the states, but not all of its power.

That is, there was a reservation in Section 274(c) of the NRC’s power to protect the public from radiation hazards from certain activities, particularly the operation of nuclear power plants and the disposal of their waste.

But even that had an exception, and that is the section that you may be thinking about, Justice Rehnquist, in Section 274(k).

That is, Section 274(k) said that even as to nuclear plant and waste regulation… that is, even as to those activities over which the NRC could not relinquish its authority… the states would remain free to regulate

“for purposes other than protection against radiation hazards. “

So there are–

Thurgood Marshall:

Well, isn’t it true, Mr. Tribe, that you take the position that California has superior expertise over and above the United States as to everything involving radioactivity’s–

Laurence H. Tribe:

–No, no.

We… we–

Thurgood Marshall:

–Disposal.

Laurence H. Tribe:

–We think that as far–

Thurgood Marshall:

Isn’t that really what it is?

Laurence H. Tribe:

–I don’t think so, Justice Marshall.

Thurgood Marshall:

Well, why–

Laurence H. Tribe:

That is, we trust… the reason… we do trust their expertise.

We trust they’ll know when to shut the plants down.

But when the plants are shut down, that solution to the safety problem because the cause of our cost and continuity problem.

And in particular, it is because of the sharing of expertise, the federal government over radiation–

Thurgood Marshall:

–Well, I don’t see any–

Laurence H. Tribe:

–With California–

Thurgood Marshall:

–I don’t see any sharing here at all.

You just–

Laurence H. Tribe:

–Well, the sharing.

Thurgood Marshall:

–California says no.

Laurence H. Tribe:

It says no because it costs too much.

Thurgood Marshall:

That’s not sharing.

Laurence H. Tribe:

Well, when they can come up with a solution, we’re happy to have them give us a safe one.

Thurgood Marshall:

That’s sharing?

Laurence H. Tribe:

It’s the best we can do, Justice Marshall.

And essentially what we are doing is avoiding the creation of what would be quite an astonishing regulatory vacuum.

The one thing that has not been denied by the petitioners or the United States is that the NRC’s mandate is quite narrow.

It is to figure out how best to preserve the national security and the public health and safety from radiation hazards from these nuclear plants and their wastes.

That does not include the question of how best to meet the states’ energy needs, whether this stuff is too costly and too uncertain.

I think it’s interesting that the amicus briefs of Connecticut and Oregon point out to this Court that some nine months ago the Nuclear Regulatory Commission repealed its financial qualification requirements for nuclear power plant operators on the ground that economics was a matter for the states to worry about.

And the NRC in doing so specifically said that nuclear plant shutdowns need not concern the federal government since they are

“not inimical to public health and safety under the Atomic Energy Act. “

Of course they’re not inimical to health and safety.

This is not a safety measure.

But they are inimical to continuity of service, and unless we recreate a different world for sharing costs, they’re inimical to the pocketbooks of the ratepayers.

In these circumstances it seems to us quite plain that the federal judiciary could not really grant to petitioners the judgment that they seek here without very substantially expanding the power of federal courts, not only at the expense of the state legislatures, but at the expense of Congress itself; for Congress repeatedly has been confronted with the request to occupy this territory, to take it over, and its rejection of that request, whatever we may usually make of congressional inaction, is significant here because the effect of a victory for the petitioners in this case would be to transfer to the federal government the entire question of deciding whether nuclear power is as suitable a way of meeting a state’s energy needs as coal or oil might be.

William H. Rehnquist:

Mr. Tribe–

–You don’t completely ignore Article VI, do you?

Laurence H. Tribe:

We think the supremacy clause means that we cannot conflict in any way with what the NRC does.

We couldn’t tell a nuclear plant that we think a safer way of operating is to run X hours a day, whereas the NRC has concluded, given problems of human fatigue, that it’s X plus 5 hours a day.

That’s not our point.

No.

I’m only talking about you telling us what we can’t do.

Laurence H. Tribe:

What… what the–

Thurgood Marshall:

You were busy telling us what we can’t do, and I just thought we were sitting under Article VI.

Laurence H. Tribe:

–Oh, I… I have no quarrel with that, Justice Marshall.

William H. Rehnquist:

Mr. Tribe, if your views were to prevail, could a district court, such as Judge Real here, inquire into the motives of the California legislature?

You argued a legislative motivating case here last year in the California bus amendment case.

Laurence H. Tribe:

Correct, Justice Rehnquist.

I think that if our views were to prevail completely, then the motive would be irrelevant, for this reason: under Section 271 of the Atomic Energy Act passed in 1954, as long as a state exercises its historic, traditional power… and we think the power to say no to a proposed electric generating facility falls in that category… as long as it is not regulating the ongoing operation of a nuclear facility, then there’s no preemption at all and motive doesn’t matter.

Laurence H. Tribe:

It is only if we lose that claim and only if we must rely on Section 274(k)… that is, if the Court treats what California has done as a regulation of the operation of nuclear power plants or their wastes, only then we must show that we come within 274(k), namely that this is for purposes other than radiation.

And as to that I think that the case that I lost in the Crawford case really reflects the Court’s fairly general sense that second-guessing the motives of lawmakers is a very difficult thing.

But if we lose our claim under 271, there’d be no choice other than to second guess.

However, this Court would hardly be the tribunal to do it.

The Ninth Circuit has already said that the purposes were economic.

The district court made no contrary finding.

The record contains not a shred of contrary evidence.

That is, the focus of the legislature in California at this time was on several alternative ways of dealing with the nuclear problem.

One rather more extreme approach was concerned with safety, and that was rejected by the people ultimately.

The other approach focused, as the legislative committee that proposed it stressed in its reassessment report, focused on problems of cost and reliability, not safety.

So that if we do have to rely on Section 274(k), then I think it is very clear that this is a properly motivated law.

One of the reasons I don’t want to have to rely on 274(k) is that I think for institutional reasons it makes a great deal more sense to create a rather clean division between those kinds of activities that states are preempted from and cannot engage in under the Atomic Energy Act and those kinds that are somehow suspect.

And it seems to me that a classic example of a nonproblematic state decision is a state decision simply not to have a particular form of power.

It is only when the states undertake to regulate in detail how that power will be produced that there could be ongoing conflicts between what the states think is appropriate and what the federal regulators think is appropriate.

It’s only then that we get into this twilight zone of motive.

John Paul Stevens:

Well, Mr…. let me just be sure I understand what you just said.

Assuming they made a total decision to have no nuclear plants within the state, you’re arguing that that would not be preempted even if it were perfectly clear that the motive was merely they thought they were unsafe?

Laurence H. Tribe:

Well, I’m glad we don’t have to defend that view, but that is my view.

That’s what I thought.

Laurence H. Tribe:

It’s my view that the Atomic Energy Act basically puts nuclear power on the shelf.

It says it’s the exclusive responsibility of the NRC to decide how those who buy it are to use it so that it will be safe, but it is not a federal decision whether it is appropriate, whether it is needed, whether it is expensive, and indeed, if someone says we just don’t want to take the risks, all of the risks, taken as a whole.

We believe nothing in the Atomic Energy Act precludes that kind of action.

Of course, this case, it’s important, I think, to stress, does not require the Court to go nearly so far, because the record in this case is unambiguous that California was not trying in some way to protect its people from radiation hazards.

These wastes that we are worrying about, the record makes clear, these wastes are not at the moment targeted in some way for California.

There’s nothing in the record suggesting that California was afraid that the permanent waste depository would be located there, that they might try to veto it and fail.

The concern was entirely what happens to the consumers, the ratepayers, the energy users of California if all of the optimism of the nuclear industry and the federal regulators turns out to have proved somewhat overblown, and if one actually has to shut the plants down to protect the people.

And it is at that point that California exercises the kind of traditional judgment that we do not think involves a regulation of nuclear power plants, and therefore doesn’t raise the motive issue.

Now, arguably there’s a problem in that respect with respect to one provision that I think is particularly unripe for resolution here; and that is the provision dealing with full core onsite reserve capacity, so that when a reactor is shut down for repairs you don’t have to ship its active core miles away during the repair process but can store the core at the site of the plant.

Now, one could say that that is an attempt by the State of California to dictate some detail of nuclear power plant construction, and that to prevail on that claim we really do have to show that the motive under 274(k) is other than radiation control.

Even conceding for the sake of argument that in that case we would have to rely on 274(k), this is a provision as to which all parties seem agreed, that the reason has nothing to do with safety, the reason for requiring that the core not have to get shipped miles away.

Laurence H. Tribe:

The reason, quite simply… and the Solicitor General says so in his brief; petitioners say so in their brief… the reason is that when you have to ship the core away, you close the plant down longer, you have a longer interruption, and it costs more.

So even as to that provision I think we prevail.

But I say that that provision is unripe, and that, I think, is a point on which I might close.

I want the Court to recognize that the provisions dealing with interim storage, as to which the 1982 Act provides some marginal degree of help, do not even become effective in California unless and until the nuclear waste disposal moratorium ends.

Until the moratorium ends, the storage law has no operation whatever.

And we do think, therefore, it’s unripe for decision.

As to the waste disposal law, although the Ninth Circuit in ruling in our favor found it ripe for decision, I think Justice Rehnquist’s analogy of the Christmas tree lights strung in parallel really was perfect.

The point that the petitioners themselves have made… they didn’t have to, but they’ve said it… is that it would really not help them at all to have the waste disposal law struck down.

It wouldn’t help them at all because, they say in their petition for certiorari, that no rational utility would enter the bramble bush, the thicket, whatever their image, of California certification law unless they were assured that the whole thing was blown up.

But it seems to me perfectly plain that nothing that could possibly be derived from this Court’s preemption decisions could warrant completely ousting the states from a regulatory role with respect to electricity simply because the fuel that’s used is nuclear.

And unless the Court went that far, I think it’s clear from their own concession that they would not be benefited.

But if the Court does reach the merits, then I think it important to close by saying that California deeply shares the concern expressed in this Court by over 30 states that a ruling for the utilities would leave a vital sphere of traditional state regulation over electricity in a state of complete disarray, creating a regulatory vacuum that Congress has not filled even during the 1973 oil crisis, and at the same time would quite radically shift power to the federal judiciary, power that the states have relied on the Congress to exercise.

Thank you.

Warren E. Burger:

Well, Mr. McDonough, do you have anything further?

John R. Mc Donough:

Yes, if I may, Your Honor.

It is said here that the California legislation does not reflect concern about safety, but on its face it does not say that it does not reflect that concern; and the fact of the matter is that these statutes apply only to plants built in California.

Should a California utility decide to build a plant outside California, these statues do not apply, and yet the same problems of the clog in the… in the fuel cycle and so forth would then… would then be applicable.

So… and so we don’t concede at all that these are not safety-related statutes.

Number two, Mr. Tribe has said that the states traditionally have the right to decide what technologies may be used within the state to generate electric power.

That is true subject to this particular act.

We believe that the principle here, the preemption principle here, is this: that a state statute is preempted which stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, as stated by Mr. Justice Frankfurter back in Hines against Davidovitz.

The key to the decision of this case, we think, is for the Court to make its own decision respecting what can be derived from the course of federal legislation and regulation of this activity over the years.

What we find there is that Congress did make the decision and has continued to make the decision as recently as 1982 that there shall be a nuclear component in the mix of any state if it possibly can be fitted in.

And then the Congress has really in effect divided the decision-making process as to whether it shall go in into two components.

Certain matters are for the states to decide.

We’ve never challenged it.

Need, cost, whether it goes into the rate base, how much goes into the rate base are for the states to decide, condedely; but there are questions that the federal government has decided it will decide.

It will decide the question of whether it should… you should not have a plant because of concern about interim storage.

The federal government will decide whether you shall not have a plant because of concern about ultimate waste disposal.

The federal government will decide how a plant should be designed, how it should be constructed, and how it should be operated.

William H. Rehnquist:

Well, Mr. McDonough, that suggests that the federal government has given nuclear power a kind of preferred position over coal generation and hydroelectric.

John R. Mc Donough:

I think what it has done is to… Congress, it seems to me, Mr. Justice Rehnquist, very clearly said back in 1954 and has continued to say we believe that the best interest of this country in the long range will be served by having nuclear power in this country, and we are going to do everything we can do to bring it about, do everything we can do to encourage the private sector to get in and stay in.

That’s why they enacted the Price-Anderson Act.

That’s why they… they have… they gave the technology to the private sector.

Congress has decided this is wisdom for this country to have the nuclear option.

Now, that doesn’t mean that Congress has said the states must have it at any cost, economic or otherwise.

Congress has said we will take the responsibility for design, for construction, for operation.

We will take responsibility for safety and the disposal of the spent fuel.

And… and we… we… when we have decided those things, they are decided for everybody, for all the states, for the whole nation.

Congress takes that much responsibility but does not purport to preempt the states from making the kinds of judgments which Congress is not trying to force it down anybody’s throat but trying to say we will take certain responsibility; you take certain responsibility; together we will work it out.

We will have nuclear power.

That is the federal policy–

William H. Rehnquist:

Well, that certainly… that certainly is forcing to a certain extent down somebody’s throat, isn’t it… together we will have–

John R. Mc Donough:

–Yes.

William H. Rehnquist:

–Nuclear power.

John R. Mc Donough:

I think it’s clear–

[Laughter]

John Paul Stevens:

Who takes the responsibility for… who takes the responsibility for shutdowns?

John R. Mc Donough:

I beg your pardon?

John Paul Stevens:

Who takes the responsibility for shutdowns?

John R. Mc Donough:

Of the nuclear plant?

The federal government.

The NRC, the NRC, yes, sir.

John Paul Stevens:

In… in sort of an indemnity agreement, or how do they do that?

John R. Mc Donough:

Well, you mean respecting whether a particular plant should be shut down at a particular point in time?

John Paul Stevens:

And say there’s a very substantial business interruption cost as a result of it.

Who bears the loss?

John R. Mc Donough:

Well, I take it either the shareholders or the ratepayers or both bear the cost.

John Paul Stevens:

But not the federal government.

John R. Mc Donough:

Not the federal government, no.

John R. Mc Donough:

The federal government has assumed a substantial amount of responsibility, financial responsibility, for the possibility of a nuclear incident, as you know, under the Price-Anderson Act.

The federal government has manifested a continuing policy of wishing there to be nuclear power plants and going out of its way in every respect to see that eventuality comes–

John Paul Stevens:

But it takes none of the investment risk.

John R. Mc Donough:

–It doesn’t take the investment risk, no, Your Honor.

It doesn’t take that risk.

But… and it doesn’t insist that the states invest more money than they would normally invest in a plant.

But with respect to the question of if there is a risk of shutdown, it seems to me the federal government has said that’s a risk we must all assume.

Byron R. White:

Well, Mr. McDonough, hasn’t the Ninth Circuit looked at the California law and said… said as we understand this law, California has economic concerns about nuclear power?

John R. Mc Donough:

Yes, I believe the Ninth Circuit has.

I think that that, however–

Byron R. White:

Well, do we know more about the California law than they do, or must we act like we do, or what?

John R. Mc Donough:

–Well, I think that we have brought the question here, and it seems to me now that the case is here on writ of certiorari, the question now is for this Court to decide whether it agrees with the Ninth Circuit.

About California law.

John R. Mc Donough:

Well, yes, sir.

About the… about the policy reflected in the California law.

And it seems reasonable that the Court now would take its own look at this and decide whether the case… whether this law is safety-oriented or not.

I think that a fair reading of the statute in context would suggest that that’s exactly what it is.

Warren E. Burger:

Thank you, gentlemen,–

The case is submitted.

The Honorable Court is now adjourned until tomorrow at 10 a.m..