concurring:
While I concur in the disposition reached in regard to the merits of the plaintiffs’ preemption claims, I write separately because Congress has not granted a private cause of action to the plaintiffs.
The majority opinion correctly analyzes the standing of each of the plaintiffs to prosecute these lawsuits in terms of the familiar indicia of particularized injury, causation, and the court’s capacity to provide redress. It does not, however, address the related question of whether Congress, in enacting the Atomic Energy Act, intended that private entities such as these plaintiffs be empowered to bring lawsuits seeking to impose on the states their own interpretations of the Act. It is my opinion that none of the plaintiffs have any enforcement rights pertaining to the provisions of the Atomic Energy Act.1
The plaintiffs in the two cases involved in these appeals seek a judicial determination that various California statutes are unconstitutional, as violations of the Supremacy *929Clause. The Supremacy Clause itself, of course, grants no substantive rights, and a litigant who claims its protection must be able to point to another source for the substantive right — the right to relief — he asserts in his cause of action. These principles are highlighted by recent observations of the Supreme Court in Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 612-15, 99 S.Ct. 1905, 1913-15, 60 L.Ed.2d 508 (1979). The question before the Court in Chapman was the reach of the jurisdictional grant in 28 U.S.C. § 1343(3), which covers civil suits for the redress of deprivations of rights, privileges, or immunities secured by the Constitution or by a federal law providing for equal rights'. The Court observed that
the first propositional phrase [“secured by the Constitution”] can be fairly read to describe rights secured by the Supremacy Clause. For even though that Clause is not a source of any federal rights, it does “secure” federal rights whenever they come into conflict with state law. In that sense all federal rights, whether created by treaty, by statute, or by regulation, are “secured” by the Supremacy Clause.
Id. at 613, 99 S.Ct. at 1913. The Court concluded, however, that
[i]n order to give meaning to the entire statute as written by Congress, we must conclude that an allegation of incompatibility between federal and state statutes and regulations does not, in itself, give rise to a claim “secured by the Constitution” within the meaning of § 1343(3).
Id. at 615, 99 S.Ct. at 1914-15.
The conclusion is thus compelled that the right to relief claimed by the plaintiffs here, although “secured” by the Supremacy Clause, must originate in the Atomic Energy Act itself. We must therefore look to that Act, and to the guiding principles of statutory construction, to discern whether Congress intended to grant, explicitly or implicitly, any such right to relief to these or similarly placed plaintiffs.2
When a plaintiff seeks to challenge federal agency action, the court must “canvass relevant statutory materials,” in order to determine “whether Congress meant to deny or to allow judicial review of the agency action at the instance of the plaintiff.” Barlow v. Collins, 397 U.S. 159, 169, 90 S.Ct. 832, 839, 25 L.Ed.2d 192 (1970) (Brennan, J., concurring in the result and dissenting). Similarly, when a plaintiff seeks to complain of state action, including state legislative action, on the strength of assertedly preemptive federal statutes, the court must consider whether Congress intended that that plaintiff be authorized to seek relief through judicial action.
Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), involved the question of whether New York welfare legislation was inconsistent with provisions of the Social Security Act. Justice Black, dissenting, argued that the District Court should not have entertained the lawsuit, because HEW had not had the opportunity to exercise its own judgment on the underlying question of compatibility of the state and federal statutes:
I think it will be impossible for HEW to fulfill its function under the Social Security Act if its proceedings can be disrupted and its authority undercut by courts which rush to make precisely the same determination that the agency is directed by the Act to make. And in instances when HEW is confronted with a particu*930larly sensitive question, the agency might be delighted to be able to pass on to the courts its statutory responsibility to decide the question. In the long run, then, judicial pre-emption of the agency’s rightful responsibility can only lead to the collapse of the enforcement scheme envisioned by Congress, and I fear that this case and others have carried such a process well along its way.
Id. at 434-35, 90 S.Ct. at 1228-29. In the statutory context of Rosado, the Supreme Court considered and rejected the applicability of the reasoning offered by Justice Black and quoted above. The present lawsuits arise in a different statutory and regulatory context, in which I believe that reasoning parallel to Justice Black’s should be applied.3
As a starting point, we may observe that nowhere in the Atomic Energy Act has Congress explicitly authorized lawsuits such as the ones before us. At the same time, the grant of powers in 42 U.S.C. § 2201(i) (1976) is clearly broad enough to enable the Nuclear Regulatory Commission to pass judgment on such questions as those presented here: “[T]he Commission is authorized to . . . (i) prescribe such regulations or orders as it may deem necessary ... (3) to govern any activity authorized pursuant to this chapter.”
Even though the Atomic Energy Act does not explicitly authorize private actions to enforce its provisions in the face of conflicting state statutes, and even though it does empower the Nuclear Regulatory Commission to deal appropriately, within its discretion, with such conflicts, it might be thought that there is nevertheless an implied private right of action under the Act.
In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court refused to consider whether the defendant had violated the federal statute sued under, because it found that Congress had not intended to provide any private remedy for its violation, either explicitly or implicitly. The principles enunciated in Cort were quite recently reiterated in California v. Sierra Club, - U.S. -, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981). That case, which makes it clear that the critical question is not whether a party would benefit from a particular statute, but whether Congress intended to confer an enforcement right on that party, is dispositive here.
There is nothing on the face of the statute or in its legislative history which suggests that Congress intended to confer rights upon the plaintiffs in these actions.
The Atomic Energy Act, like the Rivers and Harbors Appropriations Act of 1899, as interpreted in California v. Sierra Club, supra:
1. Does not carry any implication of an intention to confer rights on a particular class of persons.
2. Was designed to benefit the public at large.
3. Was designed to enable the Nuclear Regulatory Commission to carry out the terms, duties, and responsibilities of the Act.
4. Demonstrates that Congress was not concerned with private rights but with the federal government’s ability to respond to atomic energy problems.
I submit that Congress has decided that only the Nuclear Regulatory Commission, and not the plaintiffs, may challenge California statutes as being preempted by the Act. Of course, a party which is aggrieved by a final action of the Nuclear Regulatory Commission may have a cause of action for judicial review of that action under the Administrative Procedures Act. 5 U.S.C. § 702 (1976). But that is not the posture in which these cases arise.
Finally, Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978), is not *931to the contrary. The issue in Duke Power was whether private parties had standing to challenge the constitutionality, of a section of the Atomic Energy Act. Here, the plaintiffs are claiming enforcement rights under the Act. The issues are quite different, and the tests which govern the disposition of those issues are correspondingly different. Standing to challenge the constitutionality of a statute does not in itself confer enforcement rights under that statute.
Congress has recognized that the future of this nation depends on our collective ability to contain safely nuclear energy. Because the public interest is paramount, a Nuclear Regulatory Commission has been established to oversee the statutory scheme. That Commission’s oversight is clearly intended to be comprehensive, and the Congressional goal of bringing to the field of nuclear energy a single, expert, public agency to interpret and carry out the provisions of the Atomic Energy Act is frustrated when individual courts, at the instance of private entities, pass judgment on the scope of that Act. The regulatory plan which Congress so carefully devised cannot be upset by the judicial action sought in cases such as these.
. At one time, the lack of such an enforcement right was considered to be a bar to Article III standing. See, e. g., Alabama Power Co. v. Ickes, 302 U.S. 464, 479, 58 S.Ct. 300, 303, 82 L.Ed. 374 (1938). That restrictive view of standing has now been discarded.
The “legal interest” test goes to the merits. The question of standing is different. It concerns, apart from the “case” or “controversy” test, the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.
Ass'n of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829, 25 L.Ed.2d 108 (1970). See also Barlow v. Collins, 397 U.S. 159, 168, 90 S.Ct. 832, 838, 25 L.Ed.2d 192 (1970) (Brennan, J., concurring in the result and dissenting).
. My research has disclosed no case which stands as direct precedent for the position taken in the text. Indeed, in a number of more or less analogous contexts, the Supreme Court has reached the merits of preemption claims brought by private litigants without consideration of the questions 1 raise here. See, e. g., Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977); City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973); Askew v. American Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973). In such cases, essentially, the courts are allowing the private litigants to act in the capacity of private attorneys general, and in many, perhaps most, contexts, this practice will serve the public interest. Whether the same can be said in the area of nuclear power regulation is a question which should not be disposed of merely by analogy to other areas of federal regulation. Rather, a searching and independent analysis is called for.
. Northern States Power Company v. State of Minnesota, 447 F.2d 1143 (8th Cir. 1971), also involved the issue of federal preemption, by the Atomic Energy Act, of state regulation of nuclear power plants. The opinion impliedly holds that Congress has empowered private plaintiffs to bring suits for declaratory relief in this area. It is not persuasive on the point, however, since it does not discuss, or even mention, the need for Congressional authorization of such suits.