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DUKE POWER CO. v. CAROLINA ENV. STUDY GROUP
438 U.S. 59 (1978)
DUKE POWER CO.
v.
CAROLINA ENVIRONMENTAL STUDY GROUP, INC., ET AL.
No. 77-262.
Supreme Court of United States.
Argued March 20, 1978.
Decided June 26, 1978.*
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA.
Steve C. Griffith, Jr., argued the cause for appellant in No. 77-262. With him on the briefs were Joseph B. Knotts, Jr., and William Larry Porter. Solicitor General McCree argued the cause for appellants in No. 77-375. With him on the briefs were Assistant Attorney General Babcock, Deputy Solicitor General Jones, Harriet S. Shapiro, Robert E. Kopp, Thomas G. Wilson, Jerome Nelson, and Stephen F. Eilperin.
William B. Schultz argued the cause for appellees in both cases. With him on the brief were Alan B. Morrison, George Daly, Norman B. Smith, and Jonathan R. Harkavy.†
William J. Brown, Attorney General, and E. Dennis Murchnicki, Assistant Attorney General, filed a brief for the State of Ohio as amicus curiae urging affirmance.
Briefs of amici curiae were filed by Bronson C. La Follette, Attorney General of Wisconsin, and Patrick Walsh, Assistant Attorney General, Eldon G. Kaul, Assistant Attorney General of Minnesota, and Carl Valore, Jr., for the State of Wisconsin et al.; and by Herbert H. Brown, Gilbert C. Miller, and Lawrence Coe Lanpher for the Resources Agency, State of California.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. These appeals present the question of whether Congress may, consistent with the Constitution, impose a limitation on
liability for nuclear accidents resulting from the operation of private nuclear power plants licensed by the Federal Government. IAWhen Congress passed the Atomic Energy Act of 1946, it contemplated that the development of nuclear power would be a Government monopoly. See Act of Aug. 1, 1946, ch. 724, 60 Stat. 755. Within a decade, however, Congress concluded that the national interest would be best served if the Government encouraged the private sector to become involved in the development of atomic energy for peaceful purposes under a program of federal regulation and licensing. See H. R. Rep. No. 2181, 83d Cong., 2d Sess., 1-11 (1954). The Atomic Energy Act of 1954, Act of Aug. 30, 1954, ch. 1073, 68 Stat. 919, as amended, 42 U. S. C. §§ 2011-2281 (1970 ed. and Supp. V), implemented this policy decision, providing for licensing of private construction, ownership, and operation of commercial nuclear power reactors for energy production under strict supervision by the Atomic Energy Commission (AEC).1 See Power Reactor Development Co. v. Electrical Workers,367 U.S. 396 (1961), rev'g and remanding 108 U. S. App. D. C. 97, 280 F.2d 645 (1960). Private industry responded to the Atomic Energy Act of 1954 with the development of an experimental power plant constructed under the auspices of a consortium of interested companies. It soon became apparent that profits from the private exploitation of atomic energy were uncertain and the accompanying risks substantial. See Green, Nuclear Power:
Risk, Liability, and Indemnity, 71 Mich. L. Rev. 479-481 (1973) (Green). Although the AEC offered incentives to encourage investment, there remained in the path of the private nuclear power industry various problems—the risk of potentially vast liability in the event of a nuclear accident of a sizable magnitude being the major obstacle. Notwithstanding comprehensive testing and study, the uniqueness of this form of energy production made it impossible totally to rule out the risk of a major nuclear accident resulting in extensive damage. Private industry and the AEC were confident that such a disaster would not occur, but the very uniqueness of nuclear power meant that the possibility remained, and the potential liability dwarfed the ability of the industry and private insurance companies to absorb the risk. See Hearings before the Joint Committee on Atomic Energy on Government Indemnity for Private Licensees and AEC Contractors Against Reactor Hazards, 84th Cong., 2d Sess., 122-124 (1956). Thus, while repeatedly stressing that the risk of a major nuclear accident was extremely remote, spokesmen for the private sector informed Congress that they would be forced to withdraw from the field if their liability were not limited by appropriate legislation. Id., at 9, 109-110, 115, 120, 136-137, 148, 181, 195, and 240. Congress responded in 1957 by passing the Price-Anderson Act, 71 Stat, 576, 42 U. S. C. § 2210 (1970 ed. and Supp. V). The Act had the dual purpose of "protect[ing] the public and . . . encourag[ing] the development of the atomic energy industry." 42 U. S. C. § 2012 (i). In its original form, the Act limited the aggregate liability for a single nuclear incident2 to $500 million plus the amount of liability insurance
available on the private market—some $60 million in 1957. The nuclear industry was required to purchase the maximum available amount of privately underwritten public liability insurance, and the Act provided that if damages from a nuclear disaster exceeded the amount of that private insurance coverage, the Federal Government would indemnify the licensee and other "persons indemnified"3 in an amount not to exceed $500 million. Thus, the actual ceiling on liability was the amount of private insurance coverage plus the Government's indemnification obligation which totaled $560 million.
* Together with No. 77-375, United States Nuclear Regulatory Commission et al. v. Carolina Environmental Study Group, Inc., et al., also on appeal from the same court. † Briefs of amici curiae urging reversal were filed by Philip B. Kurland and William F. Steigman for the American Hospital Assn. et al.; by Northcutt Ely, Frederick H. Ritts, and Robert F. Pietrowski, Jr., for the American Public Power Assn.; by Sutton Keany for the Association of the Bar of the City of New York; by Arthur W. Murphy and Harvey S. Price for the Atomic Industrial Forum, Inc.; by Harry A. Rissetto, O. S. Hiestand, and Alvin G. Kalmanson for Babcock and Wilcox Co.; by Raymond L. Falls, Jr., and Michael P. Tierney for Combustion Engineering, Inc.; by Cameron F. MacRae, Leonard M. Trosten, Harry H. Voigt, and Eugene R. Fidell for the Edison Electric Institute; by William C. Wise and Robert Weinberg for the National Rural Electric Cooperative Assn. et al.; by Richard A. Whiting and William C. Kelly, Jr., for the Nuclear Energy Liability Property Insurance Assn. et al.; by Ronald Zumbrun, John H. Findley, Albert Ferri, Jr., and Donald C. Simpson for the Pacific Legal Foundation; and by Ben B. Blackburn and Wayne T. Elliott for the Southeastern Legal Foundation. 1. Under the terms of the Energy Reorganization Act of 1974, 42 U. S. C. § 5801 et seq. (1970 ed., Supp. V), the Nuclear Regulatory Commission (NRC) has now replaced the AEC as the licensing and regulatory authority. 2. A "nuclear incident" is defined as "any occurrence . . . within the United States causing, within or outside the United States, bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or by-product material . . . ." 42 U. S. C. § 2014 (q). 3. "The term `person indemnified' means (1) with respect to a nuclear incident occurring within the United States . . . the person with whom an indemnity agreement is executed and any other person who may be liable for public liability . . . ." 42 U. S. C. § 2014 (t). 4. By the terms of the Act as originally passed, it was only applicable to licenses issued between August 30, 1954, and August 1, 1967. § 4, 71 Stat. 576, as amended, 42 U. S. C. § 2210 (c). 5. The waiver provision is incorporated in the indemnity agreement. The defenses of negligence, contributory negligence, charitable or governmental immunity and assumption of risk all are waived in the event of an extraordinary nuclear occurrence, as are, to a limited degree, defenses based on certain short state statutes of limitations. 80 Stat. 891, 42 U. S. C. § 2210 (n) (1). See also 10 CFR §§ 140.81 to 140.85, 140.91 to 140.92 (1977). 6. The Act was also amended in 1966 to provide for the transfer of all claims arising out of a nuclear incident to a single federal district court. 42 U. S. C. § 2210 (n) (2). If the court finds that liability may exceed the liability limitation of the Act, immediate payments to injured parties are limited to 15% of the liability limitation until the court approves a plan of distribution to insure equitable treatment of all parties. § 2210 (o) (1970 ed. and Supp. V). 7. The NRC, which was empowered by the 1975 amendments to choose a figure in the $2-$5 million range, has set the assessment at $5 million. 42 Fed. Reg. 46 (1977). 8. As the number of reactors increases, the $5 million deferred premium in itself will yield a fund exceeding the present liability ceiling. For example, it is predicted that by 1985 there will be a maximum of 138 reactors operating, see Executive Office of the President, The National Energy Plan 71 (1977), which would produce $690 million in addition to whatever insurance is available from the private insurance market. Under the Act, the liability ceiling automatically increases to a level equal to the amount of primary and secondary (deferred premium) insurance coverage when the amount of such coverage exceeds the $560 million figure. 42 U. S. C. § 2210 (e) (1970 ed., Supp. V). 9. Appellees' expert witness on insurance testified in the District Court that homeowners were unable to purchase insurance against nuclear catastrophes because "the nuclear industry has essentially absorbed the entire capacity of the private insurance markets in their need for property and liability insurance." App. 293-294. 10. The complaint also sought review of the AEC's decision to grant a construction permit for one of the plants. During the pendency of this action, however, the United States Court of Appeals for the District of Columbia Circuit decided that the AEC had properly issued the permits. Carolina Environmental Study Group v. United States, 166 U. S. App. D. C. 416, 510 F.2d 796 (1975). Accordingly, the District Court dismissed all counts of the complaint except those relating to the Price-Anderson Act's constitutionality. 11. Our jurisdiction was invoked under 28 U. S. C. § 1252 (1976 ed.), which provides for a direct appeal to this Court from any decision invalidating an Act of Congress in any suit to which the United States, its agencies, officers, or employees are parties. 12. The complaint provides in relevant part:
"19. Since the Price-Anderson Act provides victims of a nuclear disaster no benefit while at the same time limiting their right to recover for their losses to approximately 2 1/2% of such losses, the operation of the $500 million limitation would, in the event of a nuclear disaster, deprive the persons injured by such a disaster of property rights without due process of law in violation of the Fifth Amendment to the Constitution of the United States." App. 32. 13. MR. JUSTICE REHNQUIST would read the complaint, insofar as it alleges a denial of due process, as stating a claim only against Duke Power under North Carolina law. Under such a construction of the complaint, the question of the constitutionality of the Price-Anderson Act would emerge only in anticipation of a defense to appellees' state-law claims and thus would not support federal jurisdiction under the "well-pleaded" complaint rule regardless of the jurisdictional statute relied upon. See Louisville & Nashville R. Co. v. Mottley,211 U.S. 149 (1908). We conclude that the complaint is more fairly read as stating a claim against the NRC directly under the Due Process Clause of the Fifth Amendment. See n. 12, supra. On this view, the "well-pleaded" complaint rule poses no bar to the assertion of jurisdiction. Appellees' claim under the Due Process Clause is an essential ingredient of a well-pleaded complaint asserting a right under the Constitution and is not simply a claim made in anticipation of a defense to be raised in an action having its origin in state law. See also n. 26, infra. 14. Previously § 1331 (a) required a minimum amount in controversy in all suits, but a 1976 amendment eliminated the jurisdictional amount requirement in actions "brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity." Pub. L. 94-574 § 2, 90 Stat. 2721. Thus this action, at least as against the NRC, would seem clearly permitted by § 1331 (a) without specification of an amount in controversy. See Andrus v. Charlestone Stone Products Co.,436 U.S. 604, 608 n. 6 (1978). Appellees' failure to assert § 1331 (a) as a basis for jurisdiction in their complaint is not fatal since the facts alleged are sufficient to support such jurisdiction. See 436 U. S., at 608 n. 6. 15. MR. JUSTICE REHNQUIST suggests that appellees' "taking" claim will not support jurisdiction under § 1331 (a), but instead that such a claim can be adjudicated only in the Court of Claims under the Tucker Act, 28 U. S. C. § 1491 (1976 ed.). We disagree. Appellees are not seeking compensation for a taking, a claim properly brought in the Court of Claims, but are now requesting a declaratory judgment that since the Price-Anderson Act does not provide advance assurance of adequate compensation in the event of a taking, it is unconstitutional. As such, appellees' claim tracks quite closely that of the petitioners in the Regional Rail Reorganization Act Cases,419 U.S. 102 (1974), which were brought under § 1331 as well as the Declaratory Judgment Act. See App. in Regional Rail Reorganization Act Cases, O. T. 1974, Nos. 74-165, 74-166, 74-167, 74-168, p. 161. While the Declaratory Judgment Act does not expand our jurisdiction, it expands the scope of available remedies. Here it allows individuals threatened with a taking to seek a declaration of the constitutionality of the disputed governmental action before potentially uncompensable damages are sustained. 16. We need not resolve the question of whether Duke Power is a proper party since jurisdiction over appellees' claims against the NRC is established, and Duke's presence or absence makes no material difference to either our consideration of the merits of the controversy or our authority to award the requested relief. 17. For a detailed explanation of the nature and consequences of a core melt, see 431 F. Supp., at 206-207. 18. "We do not question that this type of harm may amount to an `injury in fact' sufficient to lay the basis for standing . . . . Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society . . . ." Sierra Club v. Morton, 405 U. S., at 734. 19. It is argued that the District Court's findings on the question of injury in fact upon which we rely are clearly erroneous and should not be accepted as a predicate for standing. "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co.,333 U.S. 364, 395 (1948). Application of this standard to the factual findings of the District Court does not persuade us that they should not be accepted. 20. Our recent cases have required no more than a showing that there is a "substantial likelihood" that the relief requested will redress the injury claimed to satisfy the second prong of the constitutional standing requirement. See Arlington Heights v. Metropolitan Housing Dev. Corp.,429 U.S. 252, 262 (1977), quoting Simon v. Eastern Ky. Welfare Rights Org.,426 U.S. 26, 38 (1976) ("MHDC has shown an injury to itself that is `likely to be redressed by a favorable decision'"). See also Warth v. Seldin,422 U.S. 490, 504, 506-507 (1975). 21. Nor was the situation different in 1965-1966, when the first 10-year renewal of Price-Anderson was considered. See H. R. Rep. No. 883, 89th Cong., 1st Sess., 9 (1965). See generally Green 493. 22. "From what I know about nuclear power, it would be my recommendation that Duke proceed even in the absence of Price-Anderson. However, from the point of view of how others perceive nuclear power, there is some question about whether it would be a practical undertaking in the absence of the Act. . . . I have already been advised by several firms that the existence of Price-Anderson is required for them to be a supplier to our nuclear program . . . . If Price-Anderson did not exist, I would therefore have to evaluate the extent to which its absence caused disappearance of suppliers from the marketplace in arriving at my recommendation." App. 368-369. 23. The only injury that would possess the required subject-matter nexus to the due process challenge is the injury that would result from a nuclear accident causing damages in excess of the liability limitation provisions of the Price-Anderson Act. 24. In Linda R. S. v. Richard D.,410 U.S. 614 (1973), a nontaxpayer suit, reference was made to Flast's nexus requirement in the course of denying appellant's standing to challenge the nonenforcement of Texas' desertion and nonsupport statute. Upon careful reading, however, it is clear that standing was denied not because of the absence of a subject-matter nexus between the injury asserted and the constitutional claim, but instead because of the unlikelihood that the relief requested would redress appellant's claimed injury. Id., at 618. This case thus provides no qualitative support for the broader application of Flast's principles which appellants appear to advocate. Cf. Scott, Standing in the Supreme Court—A Functional Analysis, 86 Harv. L. Rev. 645, 660-662 (1973). 25. Both at the time of its formulation, see Flast v. Cohen, 392 U. S., at 120, 130-131 (Harlan J., dissenting), and more recently, see United States v. Richardson,418 U.S. 166, 181, 196 n. 18 (1974) (POWELL, J., concurring), there have been questions as to whether the nexus requirement, even in the context of taxpayers' suits, is constitutionally mandated or is instead simply a prudential limitation. 26. MR. JUSTICE REHNQUIST undertakes to sever the action of the NRC in executing indemnity agreements under the Act from the Act's alleged constitutional infirmities—particularly the liability limitation provisions. Careful examination of the statutory mechanism indicates that such a separation simply cannot be sustained. The execution of the indemnification agreements by the NRC triggers the statutory ceiling on liability which, in terms, applies only to "persons indemnified." See 42 U. S. C. § 2210 (e) (1970 ed., Supp. V). Thus, absent the execution of such agreements between the NRC and the licensees, the liability-limitation provisions of the Act, to which appellees object, would simply not come into play. This fact, coupled with the District Court's finding that "but for" the liability-limitation provisions there is a substantial likelihood that the contemplated plants would not be built or operated, is sufficient to establish the justiciability of appellees' claim against the Commission. See Simon v. Eastern Ky. Welfare Rights Org., 426 U. S., at 44-46. 27. Appellees, in apparent reliance on our recent decision in National League of Cities v. Usery,426 U.S. 833 (1976), argue that because the Price-Anderson Act encroaches on substantial state government interests, an augmented standard of review under the Due Process Clause is warranted. Nothing in National League of Cities or in our prior due process cases provides any support for this claim. 28. As the various studies considered by the District Court indicate, there is considerable uncertainty as to the amount of damages which would result from a catastrophic nuclear accident. See 431 F. Supp., at 210-214. The Reactor Safety Study published by the NRC in 1975 suggested that there was a 1 in 20,000 chance (per reactor year) of an accident causing property damage approaching $100 million and having only minor health effects. By contrast, when the odds were reduced to the range of 1 in 1 billion (per reactor year), the level of damages approached $14 billion; and 3,300 early fatalities and 45,000 early illnesses were predicted. NRC, Reactor Safety Study, An Assessment of Accident Risks in U. S. Commercial Nuclear Power Plants 83-85 (Wash-1400, Oct. 1975). For a thorough criticism of the Reactor Safety Study, see EPA, Reactor Safety Study (Wash-1400): A Review of the Final Report (June 1976). 29. "What we were thinking about was the magnitude of protection and we set an arbitrary figure because it seemed to be practical at that time and because we didn't think an accident would happen . . . but yet we recognize that it could happen. We wanted to have a base to work from." Hearings before the Joint Committee on Atomic Energy on Possible Modification or Extension of the Price-Anderson Insurance And Indemnity Act of 1957 In Order for Proper Planning of Nuclear Power Plants to Continue Without Delay, 93d Cong., 2d Sess., 68 (1974) (remarks of Rep. Holifield) (emphasis added). 30. Congress' conclusion that "the probabilities of a nuclear incident are much lower and the likely consequences much less severe than has been thought previously," was a key factor in the decision not to increase the $560 million liability ceiling in 1975. S. Rep. No. 94-454, p. 12 (1975). 31. In the past Congress has provided emergency assistance for victims of catastrophic accidents even in the absence of a prior statutory commitment to do so. For example, in 1955, Congress passed the Texas City Explosion Relief Act, 69 Stat. 707, to provide relief for victims of the explosion of ammonium nitrate fertilizer in 1947. Congress took this action despite the decision in Dalehite v. United States,346 U.S. 15 (1953), holding the United States free from any liability under the Federal Tort Claims Act for the damages incurred and injuries suffered. More recently Congress enacted legislation to provide relief for victims of the flood resulting from the collapse of the Teton Dam in Idaho. Pub. L. 94-400, 90 Stat. 1211. Under the Act, the Secretary of the Interior was authorized to provide full compensation for any deaths, personal injuries, or property damage caused by the failure of the dam. Ibid.The Price-Anderson Act is, of course, a significant improvement on these prior relief efforts because it provides an advance guarantee of recovery up to $560 million plus an express commitment by Congress to take whatever further steps are necessary to aid the victims of a nuclear incident. 32. Our cases have clearly established that "[a] person has no property, no vested interest, in any rule of the common law." Second Employers' Liability Cases,223 U.S. 1, 50 (1912), quoting Munn v. Illinois,94 U.S. 113, 134 (1877). The "Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object," Silver v. Silver,280 U.S. 117, 122 (1929), despite the fact that "otherwise settled expectations" may be upset thereby. Usery v. Turner Elkhorn Mining Co.,428 U.S. 1, 16 (1976). See also Arizona Employers' Liability Cases,250 U.S. 400, 419-422 (1919). Indeed, statutes limiting liability are relatively commonplace and have consistently been enforced by the courts. See, e. g., Silver v. Silver, supra (automobile guest statute); Providence & New York S. S. Co. v. Hill Mfg. Co.,109 U.S. 578 (1883) (limitation of vessel owner's liability); Indemnity Ins. Co. of North America v. Pan American Airways,58 F.Supp. 338 (SDNY 1944) (Warsaw Convention limitation on recovery for injuries suffered during international air travel). Cf. Thomason v. Sanchez,539 F.2d 955 (CA3 1976) (Federal Driver's Act). 33. We reject at the outset appellees' contention that the Price-Anderson Act differs from other statues limiting liability because the Act itself is the "but for" cause of the tort for which liability is limited. Put otherwise, the argument is that no quid pro quo can be provided by the Act since without it there would be no nuclear power plants and no possibility of accidents or injuries. As we understand the argument, it proceeds from the premise that prior to the enactment of the Price-Anderson Act, appellees had some right, cognizable under the Due Process Clause, to be free of nuclear power or to take advantage of the state of uncertainty which inhibited the private development of nuclear power. This premise we cannot accept. Appellees' only relevant right prior to the enactment of the Price-Anderson Act was to utilize their existing common-law and state-law remedies to vindicate any particular harm visited on them from whatever sources. After the Act was passed, that right at least with regard to nuclear accidents was replaced by the compensation mechanism of the statute, and it is only the terms of that substitution which are pertinent to the quid pro quo inquiry which appellees insist the Due Process Clause requires. 34. See Rylands v. Fletcher, L. R. 3 E. & I. App. 330 (H. L. 1868). See generally W. Prosser, Law of Torts § 79, p. 516 (4th ed. 1971); Cavers, Improving Financial Protection of the Public Against the Hazards of Nuclear Power, 77 Harv. L. Rev. 644, 649 (1964). 35. See n. 3, supra. 36. The expert testimony before the District Court indicated that Duke Power, one of the largest utilities in the country, could not be expected to accumulate more than $200 million for damages claims without reaching the point of insolvency. App. 393-397. This amount, even when coupled with the amount of available private insurance, would be less than the $560 million provided by the Act. Moreover, if the liability were of sufficient magnitude to force the utility or component manufacturer into bankruptcy or reorganization, recovery would likely be further reduced and delayed. See Joint Committee on Atomic Energy, Issues of Financial Protection in Nuclear Activities in Selected Materials on Atomic Energy Indemnity and Insurance Legislation, 93d Cong., 2d Sess., 110 (Comm. Print 1974). 37. See Prosser, supra, n. 34, at 520-521. 38. The Act explicitly provides for "payments to, or for the aid of, claimants for the purpose of providing immediate assistance following a nuclear incident." 42 U. S. C. § 2210 (m). Unlike the normal tort recovery situation, these emergency payments are made prior to the determination of injury and the setting of damages, and are not conditioned on the execution of any release by the victim. Ibid. 39. Appellees also contend that the Price-Anderson Act effects an unconstitutional "taking" because in the event of a catastrophic nuclear accident their property would be destroyed without any assurance of just compensation. We find it unnecessary to resolve the claim that such an accident would constitute a "taking" as that term has been construed in our precedents since on our reading the Price-Anderson Act does not withdraw the existing Tucker Act remedy, 28 U. S. C. § 1491 (1976 ed.). See Regional Rail Reorganization Act Cases, 419 U. S., at 125-136. Appellees concede that if the Tucker Act remedy would be available in the event of a nuclear disaster, then their constitutional challenge to the Price-Anderson Act under the Just Compensation Clause must fail. Brief for Appellees 71 n. 56. The further question of whether a taking claim could be established under the Fifth Amendment is a matter appropriately left for another day. 1. Appellees have explicitly abandoned their claim based upon the so-called equal protection component of the Fifth Amendment "since in this case any equal protection arguments would be largely duplicative of appellees' due process arguments." Brief for Appellees 21 n. 26. 2. The Court asserts that its decision today does not undermine the well-pleaded complaint doctrine because of its conclusion "that the complaint is more fairly read as stating a claim against the NRC directly under the Due Process Clause of the Fifth Amendment." Ante, at 69 n. 13. The supposed claim against the Commission arises only under federal law, since the complaint does not allege and the District Court did not find that North Carolina law would provide any remedy against it as a joint tortfeasor. On the Court's theory of the case, then, it need not decide whether jurisdiction could be obtained over Duke Power under § 1331. Ante, at 72 n. 16. That is a particularly felicitous conclusion from the Court's point of view, since the complaint does not allege that each member of the plaintiff class has a claim in excess of $10,000 against Duke Power, which is a prerequisite to jurisdiction under § 1331. Zahn v. International Paper Co.,414 U.S. 291 (1973).
Despite the Court's assurances, it is conceivable that the practical effect of today's decision could be an erosion of the well-pleaded complaint doctrine. Had the plaintiffs in Mottley joined as defendants a federal agency having as ephemeral a relation to the statute challenged there as does the Commission to the statute involved here, the District Court, according to today's decision, would have had jurisdiction to consider the constitutionality of the statute, even though its judgment would not have been binding against the Louisville & Nashville Railroad. Innumerable federal statutes and regulations affect the daily decisions of private parties, who would undoubtedly appreciate the sort of advisory opinion rendered today on the validity of those provisions. This Court should not encourage the hope that such opinions may be obtained by suing an appropriate federal agency under a claim which verges on the frivolous. 3. Appellees' challenge to the construction permits was rejected in Carolina Environmental Study Group v. United States, 166 U. S. App. D. C. 416, 510 F.2d 796 (1975). It is true, as the Court remarks, ante, at 81 n. 26, that "absent the execution of such [indemnity] agreements between the NRC and the licensees, the liability-limitation provisions of the Act, to which appellees object, would simply not come into play." That logical connection, however, does not amount to an allegation that the Commission's execution of an indemnity agreement is itself unconstitutional. The only federal action challenged by this complaint is a hypothetical district court's hypothetical invocation of the statute in the event of a hypothetical nuclear accident. In that entire string of hypothetical events, no action of the Commission is alleged to be unconstitutional. 4. The Court concludes, ante, at 71 n. 15, although appellees do not so contend, that their taking claim is cognizable under 28 U. S. C. § 1331 (a) (1976 ed.), which grants jurisdiction to the district courts where the suit "arises under the Constitution." The Court cites only the Regional Rail Reorganization Act Cases,419 U.S. 102 (1974), in support of its conclusion that this claim may be maintained under § 1331. It is, of course, well established that "when questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us." Hagans v. Lavine,415 U.S. 528, 535 n. 5 (1974). In the Regional Rail Reorganization Act Cases this Court's opinion did not even cite the statutory basis for jurisdiction, much less consider its validity. To conclude that § 1331 embraces a "taking" claim makes the Tucker Act largely superfluous, cf. United States v. Testan,424 U.S. 392, 404 (1976), and will permit the district courts to consider claims of over $10,000 which previously could only be litigated in the Court of Claims. Richardson v. Morris,409 U.S. 464 (1973). Such a significant expansion of the jurisdiction of the district courts should not be accomplished without the benefit of arguments and briefing. * With respect to whether appellees' claim of present injury is sufficient to establish standing, it should be noted that some sort of financing is essential to almost all projects, public or private. Statutes that facilitate and may be essential to the financing abound—from tax statutes to statutes prohibiting fraudulent securities transactions. One would not assume, however, that mere neighbors have standing to litigate the legality of a utility's financing. Cf. Blue Chip Stamps v. Manor Drug Stores,421 U.S. 723.
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