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STATE OF N.J. DEPT. ENVIRON. PROTECT. v. LONG ISL.

No. 93-5613.

30 F.3d 403 (1994)

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.

United States Court of Appeals, Third Circuit.

Decided July 19, 1994.

Attorney(s) appearing for the Case

Thomas A. Kowalczyk (argued), John M. Van Dalen, Office of Atty. Gen., Dept. of Law & Public Safety, Trenton, for appellants.

Barry M. Hartman (argued), Lawrence C. Lanpher, Kirkpatrick & Lockhart, Washington, DC, Paul G. Shapiro, Cohen, Shapiro, Polisher, Shiekman & Cohen, Lawrenceville, NJ, Richard P. Bonnifield, Garden City, NY, 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 (argued), U.S. Dept. of Justice, Washington, DC, for appellees, U.S. Nuclear Regulatory Com'n and U.S. Coast Guard, within U.S. Dept. of Transp.

Robert M. Rader (argued), Winston & Strawn, Washington, DC, for appellee, Philadelphia Elec. Co.

Before: BECKER and SCIRICA, Circuit Judges and POLLAK, District Judge.

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

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