1994 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"State of NJ v. Long Island Power Co." (1994). 1994 Decisions. Paper 84.

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1 

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) 
2 

 

*The Honorable Louis H. Pollak, United States District Judge for 

the Eastern District of Pennsylvania, sitting by designation. 
3 

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 
4 
5 

__________________ 

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 
6 

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. 

 

0Uranium 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. 
7 

 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 

 

0All C.F.R. references are to the 1993 edition of the Code of 

Federal Regulations unless otherwise indicated. 
8 

Assistant Commissioner of NJDEPE read in a newspaper in midAugust 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 

 

0The 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. 

0Captains 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). 
9 

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 

 

0The 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. 

0The 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. 
10 

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 
11 

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 
12 

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 

 

0NJDEPE 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. 

0In 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. 
13 

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." 
14 

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 

 

0These 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). 
15 

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). 
16 

 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 

 

0The 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. 
17 

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 
18 

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 
19 

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 

 

0In 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. 
20 

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 S4, 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 

 

0NJDEPE 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. 
21 

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 & 

 

0Radioactive 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. 

0Among 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 
22 

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. 
23 

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 

 

0Even 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))). 

0NJDEPE 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). 
24 

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 

 

0See 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). 
25 

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 

 

0Rule 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)). 
26 

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 
27 

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, 
28 

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 

 

0The 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. 
29 

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 

 

0Except 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). 
30 

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 

 

0This 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. 

0It 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. 
31 

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 

 

0This 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 
32 

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." 
33 

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 

 

0Our 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. 

0The 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. 
34 

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 

 

0We 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. 
35 

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 "cogeneration 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 
36 

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 
37 

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 

 

0As 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). 
38 

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

 

0The district court did not specifically address the CZMA claims 

against the NRC, LIPA, or PECo in its opinion. 

0The 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 
39 

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). 
40 

 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 
41 

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 

 

0The 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. 
42 

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 

 

0Although 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. 

0Section 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. 
43 

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 
44 

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 

 

0We 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. 
45 

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, 

 

0This 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. 
46 

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. 
47 

 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 

 

0As 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. 
48 

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, 
49 

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 
50 

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.
51 

 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 
52 

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.