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Precedential or Non-Precedential: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. § 1486

gave 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