Section 25524.1(b) of the California Public Resources Code provides that before a nuclear powerplant may be built, the State Energy Resources Conservation and Development Commission must determine on a case-by-case basis that there will be "adequate capacity" for interim storage of the plant's spent fuel at the time the plant requires such storage. Section 25524.2 imposes a moratorium on the certification of new nuclear plants until the State Commission finds that there has been developed, and that the United States through its authorized agency has approved, a demonstrated technology or means for the permanent and terminal disposal of high-level nuclear wastes. Petitioner electric utilities filed an action in Federal District Court seeking a declaration that these provisions, inter alia, are invalid under the Supremacy Clause because they were pre-empted by the Atomic Energy Act of 1954. The District Court, after finding that the issues presented by the two provisions were ripe for adjudication, held that they were pre-empted by and in conflict with the Atomic Energy Act. The Court of Appeals agreed that the challenge to 25524.2 was ripe for review, but found that the challenge to 25524.1(b) was not because it could not be known whether the State Commission will ever find a nuclear plant's storage capacity to be inadequate. The court went on to hold that 25524.2 was not designed to provide protection against radiation hazards but was adopted because uncertainties in the nuclear fuel cycle make nuclear power an uneconomical and uncertain source of energy, and therefore that the section was not pre-empted because 271 and 274(k) of the Atomic Energy Act constituted authorization for States to regulate nuclear powerplants for purposes other than protection against radiation hazards. The court further held that 25524.2 was not invalid as a barrier to fulfillment of the federal goal of encouraging the development of atomic energy.
1. The challenge to 25524.2 is ripe for judicial review, but the questions concerning 25524.1(b) are not. Pp. 200-203.
(a) The question of ripeness turns "on the fitness of the issues for judicial decision" and "the hardship to the parties of withholding court [461 U.S. 190, 191] consideration." Abbott Laboratories v. Gardner, 387 U.S. 136, 149 . Both of these factors counsel in favor of finding the challenge to 25524.2 ripe for adjudication. The question of pre-emption is predominantly legal and to require the industry to proceed without knowing whether the moratorium imposed by 25524.2 is valid would impose a palpable and considerable hardship on the utilities, and may ultimately work harm on the citizens of California. Moreover, if 25524.2 is void as hindering commercial development of atomic energy, delayed resolution would frustrate one of the key purposes of the Atomic Energy Act. Pp. 200-202.
(b) Under circumstances where it is uncertain whether the State Commission will ever find a nuclear plant's interim storage capacity to be inadequate, and where, because of this Court's holding, infra, that 25524.2 is not pre-empted by federal law, it is unlikely that industry behavior would be uniquely affected by such uncertainty surrounding the interim storage provision, a court should not stretch to reach an early, and perhaps a premature, decision respecting 25524.1(b). P. 203.
2. Section 25524.2 is not pre-empted by the Atomic Energy Act. Pp. 203-223.
(a) From the passage of the Atomic Energy Act in 1954, through several revisions, and to the present day, Congress has preserved the dual regulation of nuclear-powered electricity generation: the Federal Government maintains complete control of the safety and "nuclear" aspects of energy generation, whereas the States exercise their traditional authority over economic questions such as the need for additional generating capacity, the type of generating facilities to be licensed, land use, and ratemaking. This Court accepts California's avowed economic rather than safety purpose as the rationale for enacting 25524.2, and accordingly the statute lies outside the federally occupied field of nuclear safety regulation. Pp. 205-216.
(b) Section 25524.2 does not conflict with federal regulation of nuclear waste disposal, with the decision of the Nuclear Regulatory Commission (NRC) that it is permissible to continue to license reactors, notwithstanding uncertainty surrounding the waste disposal problem, or with Congress' recent passage of the Nuclear Waste Policy Act of 1982 directed at that problem. Because the NRC's decision does not and could not compel a utility to develop a nuclear plant, compliance with both that decision and 25524.2 is possible. Moreover, because the NRC's regulations are aimed at insuring that plants are safe, not necessarily that they are economical, 25524.2 does not interfere with the objective of those regulations. And as there is no attempt on California's part to enter the field of developing and licensing nuclear waste disposal technology, a field occupied by the Federal Government, 25524.2 is not pre-empted any more by the NRC's obligations in the waste disposal [461 U.S. 190, 192] field than by its licensing power over the plants themselves. Nor does it appear that Congress intended through the Nuclear Waste Policy Act of 1982 to make the decision for the States as to whether there is now sufficient federal commitment to fuel storage and waste disposal that licensing of nuclear reactors may resume. Moreover, that Act can be interpreted as being directed at solving the nuclear waste disposal problem for existing reactors without necessarily encouraging or requiring that future plant construction be undertaken. Pp. 217-220.
(c) Section 25524.2 does not frustrate the Atomic Energy Act's purpose to develop the commercial use of nuclear power. Promotion of nuclear power is not to be accomplished "at all costs." Moreover, Congress has given the States authority to determine, as a matter of economics, whether a nuclear plant vis-a-vis a fossil fuel plant should be built. California's decision to exercise that authority does not, in itself, constitute a basis for pre-emption. Pp. 220-223.
WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, MARSHALL, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, in which STEVENS, J., joined, post, p. 223.
John R. McDonough argued the cause for petitioners. With him on the briefs was Howard B. Soloway.
Deputy Solicitor General Claiborne argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General McGrath, John H. Garvey, Leonard Schaitman, and Al J. Daniel, Jr.
The turning of swords into plowshares has symbolized the transformation of atomic power into a source of energy in [461 U.S. 190, 194] American society. To facilitate this development the Federal Government relaxed its monopoly over fissionable materials and nuclear technology, and in its place, erected a complex scheme to promote the civilian development of nuclear energy, while seeking to safeguard the public and the environment from the unpredictable risks of a new technology. Early on, it was decided that the States would continue their traditional role in the regulation of electricity production. The interrelationship of federal and state authority in the nuclear energy field has not been simple; the federal regulatory structure has been frequently amended to optimize the partnership.
This case emerges from the intersection of the Federal Government's efforts to ensure that nuclear power is safe with the exercise of the historic state authority over the generation and sale of electricity. At issue is whether provisions in the 1976 amendments to California's Warren-Alquist Act, Cal. Pub. Res. Code Ann. 25524.1(b) and 25524.2 (West 1977), which condition the construction of nuclear plants on findings by the State Energy Resources Conservation and Development Commission that adequate storage facilities and means of disposal are available for nuclear waste, [461 U.S. 190, 195] are pre-empted by the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U.S.C. 2011 et seq.
The California laws at issue here are responses to these concerns. In 1974, California adopted the Warren-Alquist State Energy Resources Conservation and Development Act, Cal. Pub. Res. Code Ann. 25000-25986 (West 1977 and Supp. 1983). The Act requires that a utility seeking to build in California any electric power generating plant, including a nuclear powerplant, must apply for certification to the State Energy Resources Conservation and Development Commission (Energy Commission). 7 The Warren-Alquist Act was amended in 1976 to provide additional state regulation of new nuclear powerplant construction.
Two sections of these amendments are before us. Section 25524.1(b) provides that before additional nuclear plants may be built, the Energy Commission must determine on a case-by-case basis that there will be "adequate capacity" for storage of a plant's spent fuel rods "at the time such nuclear facility requires such . . . storage." The law also requires that each utility provide continuous, on-site, "full core reserve storage capacity" in order to permit storage of the entire reactor [461 U.S. 190, 198] core if it must be removed to permit repairs of the reactor. In short, 25524.1(b) addresses the interim storage of spent fuel.
We granted certiorari limited to the questions of whether 25524.1(b) and 25524.2 are ripe for judicial review, and whether they are pre-empted by the Atomic Energy Act. 457 U.S. 1132 (1982).
We agree that the challenge to 25524.2 is ripe for judicial review, but that the questions concerning 25524.1(b) are not. The basic rationale of the ripeness doctrine "is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Laboratories v. Gardner, [461 U.S. 190, 201] 387 U.S. 136, 148 -149 (1967). In Abbott Laboratories, which remains our leading discussion of the doctrine, we indicated that the question of ripeness turns on "the fitness of the issues for judicial decision" and "the hardship to the parties of withholding court consideration." Id., at 149.
Questions concerning the constitutionality of the interim storage provision, 25524.1(b), however, are not ripe for review. While the waste disposal statute operates on a state-wide basis, the Energy Commission is directed to make determinations under 25524.1(b) on a case-by-case basis. As the Court of Appeals explained, because "we cannot know whether the Energy Commission will ever find a nuclear plant's storage capacity to be inadequate," judicial consideration of this provision should await further developments. 16 Furthermore, because we hold today that 25524.2 is not pre-empted by federal law, there is little likelihood that industry behavior would be uniquely affected by whatever uncertainty surrounds the interim storage provisions. In these circumstances, a court should not stretch to reach an early, and perhaps premature, decision respecting 25524.1(b).
It is well established that within constitutional limits Congress may pre-empt state authority by so stating in express terms. Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). Absent explicit pre-emptive language, Congress' intent [461 U.S. 190, 204] to supersede state law altogether may be found from a "`scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,' because `the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,' or because `the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose.'" Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141, 153 (1982), quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Even where Congress has not entirely displaced state regulation in a specific area, state law is pre-empted to the extent that it actually conflicts with federal law. Such a conflict arises when "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 -143 (1963), or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
Even a brief perusal of the Atomic Energy Act reveals that, despite its comprehensiveness, it does not at any point expressly require the States to construct or authorize nuclear powerplants or prohibit the States from deciding, as an absolute or conditional matter, not to permit the construction of any further reactors. Instead, petitioners argue that the Act is intended to preserve the Federal Government as the sole regulator of all matters nuclear, and that 25524.2 falls within the scope of this impliedly pre-empted field. But as we view the issue, Congress, in passing the 1954 Act and in subsequently amending it, intended that the Federal Government should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant, but that the States retain their traditional responsibility in the field of regulating electrical utilities for determining questions of need, reliability, cost, and other related state concerns.
Need for new power facilities, their economic feasibility, and rates and services, are areas that have been characteristically governed by the States. Justice Brandeis once observed that the "franchise to operate a public utility . . . is a special privilege which . . . may be granted or withheld at the pleasure of the State." Frost v. Corporation Comm'n, 278 U.S. 515, 534 (1929) (dissenting opinion). "The nature of government regulation of private utilities is such that a utility may frequently be required by the state regulatory scheme to obtain approval for practices a business regulated in less detail would be free to institute without any approval from a regulatory body." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357 (1974). See Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 569 (1980) ("The State's concern that rates be fair and efficient represents a clear and substantial governmental interest"). With the exception of the broad authority of the [461 U.S. 190, 206] Federal Power Commission, now the Federal Energy Regulatory Commission, over the need for and pricing of electrical power transmitted in interstate commerce, see Federal Power Act, 16 U.S.C. 824 (1976 ed. and Supp. V), these economic aspects of electrical generation have been regulated for many years and in great detail by the States. 17 As we noted in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 550 (1978): "There is little doubt that under the Atomic Energy Act of 1954, state public utility commissions or similar bodies are empowered to make the initial decision regarding the need for power." Thus, "Congress legislated here in a field which the States have traditionally occupied. . . . So we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., supra, at 230.
The Atomic Energy Act must be read, however, against another background. Enrico Fermi demonstrated the first nuclear reactor in 1942, and Congress authorized civilian application of atomic power in 1946, Atomic Energy Act of 1946, see Act of Aug. 1, 1946, 60 Stat. 755, at which time the Atomic Energy Commission (AEC) was created. Until 1954, however, the use, control, and ownership of nuclear technology remained a federal monopoly. The Atomic Energy Act of 1954, Act of Aug. 30, 1954, 68 Stat. 919, as [461 U.S. 190, 207] amended, 42 U.S.C. 2011 et seq. (1976 ed. and Supp. V), grew out of Congress' determination 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 Act implemented this policy decision by providing for licensing of private construction, ownership, and operation of commercial nuclear power reactors. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S., at 63 . The AEC, however, was given exclusive jurisdiction to license the transfer, delivery, receipt, acquisition, possession, and use of nuclear materials. 42 U.S.C. 2014(e), (z), (aa), 2061-2064, 2071-2078, 2091-2099, 2111-2114 (1976 ed. and Supp. V). Upon these subjects, no role was left for the States.
"Nothing in this chapter shall be construed to affect the authority or regulations of any Federal, State or local agency with respect to the generation, sale, or transmission of electric power produced through the use of nuclear facilities licensed by the Commission . . . ."
"(4) the disposal of such . . . byproduct, source, or special nuclear material as the Commission determines . . . should, because of the hazards or potential hazards thereof, not be so disposed of without a license from the Commission."
"Nothing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards."
Section 274(k), by itself, limits only the pre-emptive effect of "this section," that is, 274, and does not represent an affirmative grant of power to the States. But Congress, by permitting regulation "for purposes other than protection against radiation hazards" underscored the distinction drawn in 1954 between the spheres of activity left respectively to the Federal Government and the States.
"Provided, that this section shall not be deemed to confer upon any Federal, State or local agency any authority to regulate, control, or restrict any activities of the Commission."
The above is not particularly controversial. But deciding how 25524.2 is to be construed and classified is a more difficult proposition. At the outset, we emphasize that the statute does not seek to regulate the construction or operation of a nuclear powerplant. It would clearly be impermissible for California to attempt to do so, for such regulation, even if enacted out of nonsafety concerns, would nevertheless directly conflict with the NRC's exclusive authority over plant construction and operation. Respondents appear to concede as much. Respondents do broadly argue, however, that although safety regulation of nuclear plants by States is forbidden, a State may completely prohibit new construction until its safety concerns are satisfied by the Federal Government. We reject this line of reasoning. State safety regulation is not pre-empted only when it conflicts with federal law. Rather, the Federal Government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the States. 25 When the Federal Government [461 U.S. 190, 213] completely occupies a given field or an identifiable portion of it, as it has done here, the test of pre-emption is whether "the matter on which the State asserts the right to act is in any way regulated by the Federal Act." Rice v. Santa Fe Elevator Corp., 331 U.S., at 236 . A state moratorium on nuclear construction grounded in safety concerns falls squarely within the prohibited field. Moreover, a state judgment that nuclear power is not safe enough to be further developed would conflict directly with the countervailing judgment of the NRC, see, infra, at 218-219, that nuclear construction may proceed notwithstanding extant uncertainties as to waste disposal. A state prohibition on nuclear construction for safety reasons would also be in the teeth of the Atomic Energy Act's objective to insure that nuclear technology be safe enough for widespread development and use - and would be pre-empted for that reason. Infra, at 221-222.
That being the case, it is necessary to determine whether there is a nonsafety rationale for 25524.2. California has maintained, and the Court of Appeals agreed, that 25524.2 was aimed at economic problems, not radiation hazards. The California Assembly Committee on Resources, Land Use, and Energy, which proposed a package of bills including 25524.2, reported that the waste disposal problem was "largely economic or the result of poor planning, not safety related." Reassessment of Nuclear Energy in California: A Policy Analysis of Proposition 15 and its Alternatives, p. 18 (1976) (Reassessment Report) (emphasis in original). The Committee explained that the lack of a federally approved method of waste disposal created a "clog" in the nuclear fuel cycle. Storage space was limited while more nuclear wastes were continuously produced. Without a permanent means of disposal, the nuclear waste problem could become critical, [461 U.S. 190, 214] leading to unpredictably high costs to contain the problem or, worse, shutdowns in reactors. "Waste disposal safety," the Reassessment Report notes, "is not directly addressed by the bills, which ask only that a method [of waste disposal] be chosen and accepted by the federal government." Id., at 156 (emphasis in original).
"[S]ection 25524.2 is directed towards purposes other than protection against radiation hazards. While Proposition 15 would have required California to judge the safety of a proposed method of waste disposal, section 25524.2 leaves that judgment to the federal government. California is concerned not with the adequacy of the method, but rather with its existence." 659 F.2d, at 925.
Second, it is suggested that California, if concerned with economics, would have banned California utilities from building plants outside the State. This objection carries little force. There is no indication that California utilities are contemplating such construction; the state legislature is not obligated to address purely hypothetical facets of a problem.
Third, petitioners note that there already is a body, the California Public Utilities Commission, which is authorized to determine on economic grounds whether a nuclear powerplant should be constructed. 26 While California is certainly free to make these decisions on a case-by-case basis, a State is not foreclosed from reaching the same decision through a legislative judgment, applicable to all cases. The economic uncertainties engendered by the nuclear waste disposal problems are not factors that vary from facility to facility; the issue readily lends itself to more generalized decisionmaking and California cannot be faulted for pursuing that course.
Fourth, petitioners note that Proposition 15, the initiative out of which 25524.2 arose, and companion provisions in California's so-called nuclear laws, are more clearly written with safety purposes in mind. 27 It is suggested that 25524.2 shares a common heritage with these laws and should be presumed to have been enacted for the same purposes. [461 U.S. 190, 216] The short answer here is that these other state laws are not before the Court, and indeed, Proposition 15 was not passed; these provisions and their pedigree do not taint other parts of the Warren-Alquist Act.
Although these specific indicia of California's intent in enacting 25524.2 are subject to varying interpretation, there are two further reasons why we should not become embroiled in attempting to ascertain California's true motive. First, inquiry into legislative motive is often an unsatisfactory venture. United States v. O'Brien, 391 U.S. 367, 383 (1968). What motivates one legislator to vote for a statute is not necessarily what motivates scores of others to enact it. Second, it would be particularly pointless for us to engage in such inquiry here when it is clear that the States have been allowed to retain authority over the need for electrical generating facilities easily sufficient to permit a State so inclined to halt the construction of new nuclear plants by refusing on economic grounds to issue certificates of public convenience in individual proceedings. In these circumstances, it should be up to Congress to determine whether a State has misused the authority left in its hands.
Petitioners' second major argument concerns federal regulation aimed at the nuclear waste disposal problem itself. It is contended that 25524.2 conflicts with federal regulation of nuclear waste disposal, with the NRC's decision that it is permissible to continue to license reactors, notwithstanding uncertainty surrounding the waste disposal problem, and with Congress' recent passage of legislation directed at that problem.
Pursuant to its authority under the Act, 42 U.S.C. 2071-2075, 2111-2114 (1976 ed. and Supp. V), the AEC, and later the NRC, promulgated extensive and detailed regulations concerning the operation of nuclear facilities and the handling of nuclear materials. The following provisions are relevant to the spent fuel and waste disposal issues in this case. To receive an NRC operating license, one must submit a safety analysis report, which includes a "radioactive waste handling syste[m]." 10 CFR 50.34(b)(2)(i), (ii) (1982). See also 10 CFR 150.15(a)(1)(i) (1982). The regulations specify general design criteria and control requirements for fuel storage and handling and radioactive waste to be stored at the reactor site. 10 CFR pt. 50, App. A, Criteria 60-64, p. 412 (1982). In addition, the NRC has promulgated detailed regulations governing storage and disposal away from the reactor. 10 CFR pt. 72 (1982). NRC has also promulgated procedural requirements covering license applications for disposal of high-level radioactive waste in geologic repositories. 10 CFR pt. 60 (1982).
Congress gave the Department of Energy the responsibility for "the establishment of temporary and permanent facilities for storage, management, and ultimate disposal of nuclear wastes." 42 U.S.C. 7133(a)(8)(C) (1976 ed., [461 U.S. 190, 218] Supp. V). No such permanent disposal facilities have yet been licensed, and the NRC and the Department of Energy continue to authorize the storage of spent fuel at reactor sites in pools of water. In 1977, the NRC was asked by the Natural Resources Defense Council to halt reactor licensing until it had determined that there was a method of permanent disposal for high-level waste. The NRC concluded that, given the progress toward the development of disposal facilities and the availability of interim storage, it could continue to license new reactors. Natural Resources Defense Council, Inc. v. NRC, 582 F.2d 166, 168-169 (CA2 1978).
The NRC's imprimatur, however, indicates only that it is safe to proceed with such plants, not that it is economically wise to do so. 29 Because the NRC order does not and could [461 U.S. 190, 219] not compel a utility to develop a nuclear plant, compliance with both it and 25524.2 is possible. Moreover, because the NRC's regulations are aimed at insuring that plants are safe, not necessarily that they are economical, 25524.2 does not interfere with the objective of the federal regulation.
Nor has California sought through 25524.2 to impose its own standards on nuclear waste disposal. The statute accepts that it is the federal responsibility to develop and license such technology. As there is no attempt on California's part to enter this field, one which is occupied by the Federal Government, we do not find 25524.2 pre-empted any more by the NRC's obligations in the waste disposal field than by its licensing power over the plants themselves.
After this case was decided by the Court of Appeals, a new piece was added to the regulatory puzzle. In its closing week, the 97th Congress passed the Nuclear Waste Policy Act of 1982, Pub. L. 97-425, 96 Stat. 2201, a complex bill providing for a multifaceted attack on the problem. Inter alia, the bill authorizes repositories for disposal of high-level radioactive waste and spent nuclear fuel, provides for licensing and expansion of interim storage, authorizes research and development, and provides a scheme for financing. While the passage of this new legislation may convince state authorities that there is now a sufficient federal commitment to fuel storage and waste disposal that licensing of nuclear reactors may resume, and, indeed, this seems to be one of the purposes of the Act, 30 it does not appear that Congress intended [461 U.S. 190, 220] to make that decision for the States through this legislation. Senator McClure attempted to do precisely that with an amendment to the Senate bill providing that the Act satisfied any legal requirements for the existence of an approved technology and facilities for disposal of spent fuel and high-level nuclear waste. The amendment was adopted by the Senate without debate. 128 Cong. Rec. S4310 (Apr. 29, 1982). During subsequent House hearings, it was strongly urged that this language be omitted so as not to affect this case. See Nuclear Waste Disposal Policy, Hearings before the Subcommittee on Energy Conservation and Power of the House Committee on Energy and Commerce, 97th Cong., 2d Sess., 356, 406, 553-554 (1982). The bill which emerged from the House Committee did omit the Senate language, and its manager, Representative Ottinger, stated to the House that the language was deleted "to insure that there be no preemption." 128 Cong. Rec. H8797 (Dec. 2, 1982). The bill ultimately signed into law followed the House language. While we are correctly reluctant to draw inferences from the failure of Congress to act, it would, in this case, appear improper for us to give a reading to the Act that Congress considered and rejected. Moreover, it is certainly possible to interpret the Act as directed at solving the nuclear waste disposal problem for existing reactors without necessarily encouraging or requiring that future plant construction be undertaken.
Finally, it is strongly contended that 25524.2 frustrates the Atomic Energy Act's purpose to develop the commercial use of nuclear power. It is well established that state law is pre-empted if it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." [461 U.S. 190, 221] Hines v. Davidowitz, 312 U.S., at 67 ; Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S., at 142 -143; Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S., at 153 .
There is little doubt that a primary purpose of the Atomic Energy Act was, and continues to be, the promotion of nuclear power. The Act itself states that it is a program "to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes to the maximum extent consistent with the common defense and security and with the health and safety of the public." 42 U.S.C. 2013(d). The House and Senate Reports confirmed that it was "a major policy goal of the United States" that the involvement of private industry would "speed the further development of the peaceful uses of atomic energy." H. R. Rep. No. 883, 89th Cong., 1st Sess., 4 (1965); H. R. Rep. No. 2181, 83d Cong., 2d Sess., 9 (1954); S. Rep. No. 1699, 83d Cong., 2d Sess., 9 (1954). The same purpose is manifest in the passage of the Price-Anderson Act, 42 U.S.C. 2210, which limits private liability from a nuclear accident. The Act was passed "[i]n order to protect the public and to encourage the development of the atomic energy industry . . . ." 42 U.S.C. 2012(i). Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S., at 63 -67.
The Court of Appeals' suggestion that legislation since 1974 has indicated a "change in congressional outlook" is unconvincing. The court observed that Congress reorganized the Atomic Energy Commission in 1974 by dividing the promotional and safety responsibilities of the AEC, giving the former to the Energy Research and Development Administration (ERDA) 31 and the latter to the NRC. Energy Reorganization Act of 1974, 88 Stat. 1233, 42 U.S.C. 5801 et seq. The evident desire of Congress to prevent safety from being [461 U.S. 190, 222] compromised by promotional concerns does not translate into an abandonment of the objective of promoting nuclear power. The legislation was carefully drafted, in fact, to avoid any antinuclear sentiment. 32 The continuing commitment to nuclear power is reflected in the extension of the Price-Anderson Act's coverage until 1987, Pub. L. 94-197, 2-14, 89 Stat. 1111-1115, as well as in Congress' express preclusion of reliance on natural gas and petroleum as primary energy sources in new powerplants, Powerplant and Industrial Fuel Use Act of 1978, 92 Stat. 3291, 42 U.S.C. 8301(b)(3), 8311, 8312(a) (1976 ed., Supp. V). It is true, of course, that Congress has sought to simultaneously promote the development of alternative energy sources, but we do not view these steps as an indication that Congress has retreated from its oft-expressed commitment to further development of nuclear power for electricity generation.
[ Footnote 1 ] See U.S. Congress, Office of Technology Assessment, Managing Commercial High-Level Radioactive Waste 9 (Apr. 1982) (hereafter OTA Study).
[ Footnote 2 ] "For the past several years the Department of Energy or one of its predecessors has been warning the Congress almost annually of the imminent closure of a number of nuclear power reactors as a result of the lack of available capacity to store the spent nuclear fuel . . . . No reactor has yet shut down for these reasons, largely because utilities have expanded their storage capacity." H. R. Rep. No. 97-785, pt. 1, p. 47 (1982); the Office of Technology Assessment's analysis found that "reactors are running out of storage space, and some may have to shut down by the mid-1990's unless more storage space is made available on a timely basis." OTA Study, at 27. See also Affidavit of Terry R. Lash (staff scientist for Natural [461 U.S. 190, 196] Resources Defense Council) § 10, App. 419; Affidavit of Dale G. Bridenbaugh (nuclear engineer) §§ 28-30, App. 478-480.
[ Footnote 3 ] See H. R. Rep. No. 97-785, supra, at 46. "Waste disposal, at the present stage of technological development, refers to the storage of the very long lived and highly radioactive waste products until they detoxify sufficiently that they no longer present an environmental hazard. There are presently no physical or chemical steps which render this waste less toxic, other than simply the passage of time." Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 528 , n. 6 (1978).
[ Footnote 4 ] See generally Nuclear Fuel Cycle Committee, California Energy Commission, Status of Nuclear Fuel Reprocessing, Spent Fuel Storage and High-Level Waste Disposal, Draft Report (1978) (App. 173-373); Report to the President by the Interagency Review Group on Nuclear Waste Management 37, 47, 61 (1979).
[ Footnote 5 ] Committee on Nuclear and Alternative Energy Systems, National Research Council, National Academy of Sciences, Energy in Transition 1985-2010, pp. 314-316 (1979). See also Yellin, High Technology and the Courts, 94 Harv. L. Rev. 489, 534 (1981).
[ Footnote 6 ] The uncertainty is reflected in the fact that since 1979 the Nuclear Regulatory Commission has been engaged in a proceeding to reassess the evidentiary basis for its position that safety considerations will not be compromised by continuing federal licensing while a waste disposal method is being developed. 44 Fed. Reg. 61373 (1979); see Minnesota v. NRC, 195 U.S. App. D.C. 234, 241, 602 F.2d 412, 419 (1979). Moreover, the ultimate solution to the waste disposal problem may entail significant expenditures, affecting the economic attractiveness of the nuclear option.
[ Footnote 7 ] The applicant must first file a notice of intention to file an application for certification, after which the Commission conducts a review process for not more than 12 months. If the notice of intention is approved, the applicant must than file an application for certification, after which the Commission conducts a further review process not to exceed 18 months. Unless certification is granted, the proposed plant cannot be constructed; if certification is granted the Commission is authorized to make certain specifications for construction of the plant and is directed to monitor the construction process.
[ Footnote 8 ] After transmission of a Commission finding to the legislature, the certification of nuclear powerplants continues to be prohibited until 100 legislative days have elapsed without disaffirmance of the findings by either house of the legislature, or, if the findings have been disaffirmed but are then re-adhered to by the Energy Commission, if the legislature fails to void the renewed findings by statute within 100 legislative days after their retransmittal by the Commission.
[ Footnote 9 ] The District Court found that 25524.1 and 25524.2, coupled with the Energy Commission's failure to make the required findings, made further investment by petitioners in nuclear plants "an unreasonable risk." The court also found that if those sections and other provisions were held invalid, petitioners would reactivate plans for further nuclear plant development. 489 F. Supp., at 700-701.
[ Footnote 10 ] The court also held unripe challenges to various certification provisions, Cal. Pub. Res. Code Ann. 25500, 25502, 25504, 25511, 25512, 25514, 25516, 25517, 25519, 25520, 25523, 25532 (West 1977 and Supp. 1983), requirements that utilities acquire surrounding development rights, 25528 (West Supp. 1983), and the reprocessing provisions of 25524.1(a). The requirement that a utility propose at least three alternative sites, 25503, was held ripe for review and not pre-empted by the Atomic Energy Act for reasons similar to those applied to 25524.2. 659 F.2d, at 915-918.
[ Footnote 11 ] Section 271, 68 Stat. 960, as amended and as set forth in 42 U.S.C. 2018, provides: "Nothing in this chapter shall be construed to affect the authority or regulations of any Federal, State or local agency with respect to the generation, sale, or transmission of electric power produced through the use of nuclear facilities licensed by the Commission: Provided, That this section shall not be deemed to confer upon any Federal, State or local agency any authority to regulate, control, or restrict any activities of the Commission." Section 274(k), 73 Stat. 691, 42 U.S.C. 2021(k), provides: "Nothing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards." The role of these provisions in the federal regulatory structure is discussed infra, at 208-211.
[ Footnote 12 ] In the same appeal, the Ninth Circuit consolidated and decided a related challenge to 25524.2 brought by a nuclear engineer hired to work on a proposed nuclear plant who subsequently lost his job when the project was abandoned. The District Court had held that the engineer had standing to challenge the waste disposal law and that the law was pre-empted by the Atomic Energy Act. Pacific Legal Foundation v. State Energy Resources Comm'n, 472 F. Supp. 191 (SD Cal. 1979). The Court of Appeals disagreed with the District Court's standing analysis and reversed. 659 F.2d, at 911-914. We denied certiorari. 457 U.S. 1133 (1982).
[ Footnote 13 ] Pacific Gas & Electric, for example, had spent at least $10 million before even filing a notice of intention to file an application for certification. Opinion at 489 F. Supp. 699 (ED Cal. 1980) (Finding of Fact No. 15, App. to Pet. for Cert. 72).
[ Footnote 14 ] Finding of Fact No. 13, id., at 71.
[ Footnote 15 ] Respondents also contend that the waste disposal provision question is not ripe for review because even if the law is invalid, petitioners' injury - being prevented as a practical matter from building new nuclear power-plants - will not be fully redressed inasmuch as other sections of the Warren-Alquist Act, not before the Court, also prevent such construction. Respondents also suggest that this lack of redressability rises to the level of an Art. III concern. Both arguments are predicated entirely upon a statement in petitioners' reply brief in support of the petition for certiorari that "unless and until the California certification system statutes are reviewed and at least largely invalidated, petitioners will not again undertake to build nuclear power plants in California." Reply Brief for Petitioners 6. Respondents attempt to draw entirely too much from this statement. The California certification provisions do not impose a moratorium on new construction; in the main, they require that information be gathered on a variety of issues and be considered by the Energy Commission. Cal. Pub. Res. Code Ann. 25500, 25502, 25504, 25511, 25512, 25514, 25516, 25517, 25519, 25520, 25523, 25532 (West 1977 and Supp. 1983). It is unreasonable to presume that these informational requirements will exert the same chilling effect on new construction as would a moratorium. The Ninth Circuit concurs: "[A] delay in adjudication will not cause any undue hardship for the parties. The certification scheme, in general, does not have an `immediate and substantial impact' on the utilities. Gardner v. Toilet Goods Association, 387 U.S. 167, 171 . . . (1967); neither [Pacific Gas & Electric] nor [Southern California Edison] has a notice of intention or application for certification pending, and the threat that procedural burdens might someday be imposed or that certification might someday be denied for failure to meet Energy Commission standards is remote at best." 659 F.2d, at 916 (footnote omitted). Respondents' "fears" that petitioners will not seek to pursue the nuclear option, notwithstanding a favorable decision in this litigation, appear greatly exaggerated.
[ Footnote 16 ] The Court of Appeals noted that the draft report by the State Energy Commission's Nuclear Fuel Cycle Committee, which recommended requiring all nuclear plants to provide a specified amount of storage space, see Nuclear Fuel Cycle Committee, supra, n. 4, at 113, does not necessarily render the provision ripe. The Committee report is only an indication of the views of two of five members of the Energy Commission in 1978. Not only may views change in the future, but the report itself cautions that it does not represent final agency action. Indeed, the full Commission's decision on January 25, 1978, did not adopt this report or the Committee's recommendations regarding on-site storage. Finally, the recently enacted Nuclear Waste Policy Act of 1982, Pub. L. 97-425, 96 Stat. 2201, 42 U.S.C. 10101 et seq. (1982 ed.), authorizes the NRC to license technology for the on-site storage of spent fuel, 133, and directs the Secretary of Energy to provide up to 1,900 metric tons of capacity for the storage of spent fuel, 135; these provisions might influence the State Commission's ultimate findings.
[ Footnote 17 ] As early as 1920, many States had adopted legislation empowering utility commissions to regulate electric utilities. See Jones, Origins of the Certificate of Public Convenience and Necessity: Developments in the States, 1870-1920, 79 Colum. L. Rev. 426, 454-455 (1979). Today, every State has a regulatory body with authority for assuring adequate electric service at reasonable rates. House Committee on Interstate and Foreign Commerce, The Electric Utility Sector: Concepts, Practices, and Problems, 95th Cong., 1st Sess., 12 (Comm. Print 1977). For a description of the regulatory framework in effect in the States, see American Bar Association, Special Committee on Energy Law, The Need for Power and the Choice of Technologies: State Decisions on Electric Power Facilities (1981).
[ Footnote 18 ] See also NRC Atomic Safety and Licensing Appeal Board, Consolidated Edison Co. of N. Y., Inc., 7 N. R. C. 31, 34 (1978): "States . . . retain [461 U.S. 190, 208] the right, even in the face of the issuance of an NRC construction permit, to preclude construction on such bases as a lack of need for additional generating capacity or the environmental unacceptability of the proposed facility or site."
[ Footnote 19 ] 100 Cong. Rec. 12015, 12197-12202 (1954) (remarks of Sen. Hickenlooper); id., at 10559 (statements of AEC Chairman Strauss). Particularly instructive is an exchange on the House floor between Representatives Yates and Cole. Representative Yates inquired if the bill imposed the duty upon the Commission "to determine whether the public convenience and necessity require certain commercial institutions to be licensed to construct reactors for the production of power for civilian purposes?" Representative Cole responded that there was no such imposition to grant licenses based upon public convenience and necessity. "That," he said, "is regulated by existing Federal and State authorities. We do not touch that in any respect." Id., at 11689.
[ Footnote 20 ] Authority could be shifted to the States for control over byproduct and source material, and over special nuclear material "in quantities not sufficient to form a critical mass." California has signed a 274 agreement. Cal. Health & Safety Code Ann. 25875-25876 (West 1967).
[ Footnote 21 ] In addition to 274(k), 274(l), 42 U.S.C. 2021(l), created an advisory role for the States respecting activities exclusively within the NRC's jurisdiction, and 274(g), 21 U.S.C. 2021(g), directs the Commission to cooperate with the States even in the formulation of standards for regulation against radiation hazards.
[ Footnote 22 ] "Because of these unique provisions in the act pertaining to AEC's licensing and regulation of persons operating reactors which could be used to produce electricity, there was some feeling of uneasiness among the drafters of the legislation over the effect of the new law upon other agencies - Federal, State, and local - having jurisdiction over the generation, sale, and transmission of electric power. It was recognized by the drafters that the authority of these other agencies with respect to the generation, sale, and transmission of electric power produced through the use of nuclear facilities was not affected by this new law; and that the AEC's regulatory [461 U.S. 190, 211] control was limited to considerations involving the common defense and security and the protection of the health and safety of the public with respect to the special hazards associated with the operation of nuclear facilities. Nevertheless, section 271 was added to make it explicit that licensees of the AEC who produced power though the use of nuclear facilities would otherwise remain subject to the authority of all appropriate Federal, State, and local authorities with respect to the generation, sale, or transmission of electric power." H. R. Rep. No. 567, 89th Cong., 1st Sess., 4 (1965). "The amendment of this section effected by this bill is intended as a clarification of the meaning of section 271 as originally enacted." Id., at 10.
[ Footnote 23 ] While expressions of a subsequent Congress generally are not thought particularly useful in ascertaining the intent of an earlier Congress, Senator Hickenlooper, the sponsor of the 1965 amendment, was an important figure in the drafting of the 1954 Act. Senator Pastore, also involved in the writing of the 1954 Act, elaborated: "We were conscious that it was not desired that the AEC should engage in the business of regulating electricity as such. . . . We were trying to keep the AEC out of the business of regulating electricity. That is what gave birth to section 271. We provided that nothing in the act would affect the local supervising authority's right to control the manufacture of electricity generated by nuclear facilities." 111 Cong. Rec. 19832 (1965).
[ Footnote 24 ] Our summary affirmance in Northern States Power Co. v. Minnesota, 447 F.2d 1143 (CA8 1971), summarily aff'd, 405 U.S. 1035 (1972), is fully consistent with this reading of the division of regulatory authority. Minnesota's effort to regulate radioactive waste discharges from nuclear plants fell squarely within the field of safety regulation reserved for federal regulation. The invalidation of this regulation in Northern States requires no retraction of the state authority preserved in 271 and 274 of the Act. And, as with all summary affirmances, our action "is not to be read as an adoption of the reasoning supporting the judgment under review." Zobel v. Williams, 457 U.S. 55, 64 , n. 13 (1982); Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam).
[ Footnote 25 ] In addition to the opportunity to enter into agreements with the NRC under 274(c), Congress has specifically authorized the States to regulate [461 U.S. 190, 213] radioactive air pollutants from nuclear plants, Clean Air Act Amendments of 1977, 122, 42 U.S.C. 7422 (1976 ed., Supp. V), and to impose certain siting and land-use requirements for nuclear plants, NRC Authorization Act for Fiscal Year 1980, Pub. L. 96-295, 94 Stat. 780.
[ Footnote 26 ] Cal. Pub. Util. Code Ann. 1001 (West 1975 and Supp. 1983).
[ Footnote 27 ] The 1976 amendments to the Warren-Alquist Act were passed as an alternative to Proposition 15, an initiative submitted to California's voters in June 1976. (By their terms, these provisions would not have become operative if Proposition 15 had been adopted. Cal. Pub. Res. Code Ann. 25524.2, Historical Note (West 1977). The proposition was rejected.) Like 25524.2, Proposition 15, among other things, barred the construction of new nuclear powerplants unless a permanent method of waste disposal was developed, though Proposition 15 gave as the reason for its concern the threat of harm to "the land or the people of . . . California." Similarly, Cal. Pub. Res. Code Ann. 25524.3(b) (West Supp. 1982) requires the State Energy Commission to undertake a study of underground placement and berm containment of nuclear reactors, to determine whether such construction techniques are necessary for "enhancing the public health and safety . . . ."
[ Footnote 28 ] Petitioners correctly cite Perez v. Campbell, 402 U.S. 637, 651 (1971), for the proposition that state law may not frustrate the operation of federal law simply because the state legislature in passing its law had some purpose in mind other than one of frustration. In Perez, however, unlike this case, there was an actual conflict between state and federal law. Perez involved an Arizona law that required uninsured motorists who had not satisfied judgments against them or had failed to pay settlements after accidents to prove their financial responsibility before the State would license them to drive again. The Arizona law, contrary to the Federal Bankruptcy Act, specified that this obligation would not be discharged in bankruptcy. We held the state law pre-empted, despite the fact that its purpose was to deter irresponsible driving rather than to aid in the collection [461 U.S. 190, 217] of debts. Only if there were an actual conflict between 25524.2 and the Atomic Energy Act, such that adherence to both were impossible or the operation of state law frustrated accomplishment of the federal objective, would Perez be apposite.
[ Footnote 29 ] The Natural Resources Defense Council's petition with the NRC claimed that the Atomic Energy Act required the agency to consider the safety aspects of off-site waste disposal in determining whether to license reactors. The NRC denied the petition, stating that it had to examine only on-site safety risks in its licensing decisions. 42 Fed. Reg. 34391 (1977). The NRC was not asked to consider whether nuclear reactors were sufficiently reliable investments in light of the unresolved waste disposal question, and the NRC did not address this issue. Nor was the issue raised in the review of the NRC's decision in Natural Resources Defense Council, Inc. v. NRC, 582 F.2d 166 (CA2 1978). As the Court of Appeals stated, "the issue . . . is whether NRC, prior to granting nuclear power reactor operating licenses, is required by the public health and safety requirement of the [Atomic Energy Act] to make a determination . . . that high-level radioactive wastes can be permanently disposed of safely." Id., at 170 (emphasis deleted). Similarly, the NRC's proceeding addressing the extent to which assessments of waste disposal technology should be factored into NRC reactor licensing does not address the economic ramifications of the issue. This matter has been the subject of prolonged litigation, and is presently pending before the Court. See Natural Resources Defense Council, Inc. v. NRC, 178 U.S. App. D.C. 336, 547 F.2d 633 (1976), rev'd sub nom. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978), on remand, 222 U.S. App. D.C. 9, 685 F.2d 459 (1982), cert. granted sub nom. Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 459 U.S. 1034 (1982).
[ Footnote 30 ] The Act itself, 111(b), 42 U.S.C. 10131(b) (1982 ed.), enumerates the following purposes: "(1) to establish a schedule for the siting, construction, and operation of repositories that will provide a reasonable assurance that the public and the environment will be adequately protected from the hazards posed by high-level radioactive waste and . . . spent nuclear fuel . . .; "(2) to establish the Federal responsibility, and a definite Federal policy, for the disposal of such waste and spent fuel." 96 Stat. 2207. See also H. R. Rep. No. 97-785, pt. 2, pp. 59-60 (1982) (purpose of Act to provide "reasonable assurance that safe waste disposal methods will be [461 U.S. 190, 220] available when needed"); 128 Cong. Rec. H8162 (Sept. 30, 1982) (remarks of Rep. Udall); id., at H8166 (Sept. 30, 1982) (remarks of Rep. Winn) (the Act "demonstrates to the public and industry that the Federal Government is fulfilling its responsibility to dispose of high-level waste").
[ Footnote 31 ] In 1977, ERDA's functions were transferred to the Department of Energy. 91 Stat. 577, 42 U.S.C. 7151(a) (1976 ed., Supp. V).
[ Footnote 32 ] The Senate bill had included language prohibiting the ERDA from "giving unwarranted priority to any single energy source" out of concern that the ERDA "may give an unwarranted priority to development of nuclear power to the detriment of competing energy technologies." S. Rep. No. 93-980, p. 27 (1974). The House bill expressed no concern about giving "unwarranted priority" to nuclear power. H. R. Rep. No. 93-707 (1973). The bill reported by the Conference Committee, and subsequently enacted, did not contain the Senate's prohibitory language, but instead stated that all technologies were to be promoted. H. R. Conf. Rep. No. 93-1445, p. 25 (1974).
[ Footnote 33 ] We recently rejected a similar claim that congressional policy to favor the use of coal as a fuel source pre-empted state legislation that may have [461 U.S. 190, 223] an adverse effect on the use of coal. Commonwealth Edison Co. v. Montana, 453 U.S. 609, 633 (1981).
[ Footnote 34 ] Our resolution of this case is not controlled by First Iowa Hydro-Electric Cooperative v. FPC, 328 U.S. 152 (1946). In First Iowa, this Court held that compliance with requirements for a state permit under Iowa law was not necessary in order to secure a federal license for a hydroelectric project. Allowing the States to veto federal decisions could "destroy the effectiveness of the Federal Act. It would subordinate to the control of the State the `comprehensive' planning which the Act provides shall depend upon the judgment of [the Federal Government]." Id., at 164. In the same manner, requiring compliance with state requirements would have reduced the project to a size that the Federal Power Commission had determined was inadequate, and compliance with state engineering requirements could handicap the financial success of the project. The Atomic Energy Act does not give the NRC comprehensive planning responsibility. Moreover, 25524.2 does not interfere with the type of plant that could be constructed. State regulations which affected the construction and operation of federally approved nuclear powerplants would pose a different case.
JUSTICE BLACKMUN, with whom JUSTICE STEVENS joins, concurring in part and concurring in the judgment.
I join the Court's opinion, except to the extent it suggests that a State may not prohibit the construction of nuclear powerplants if the State is motivated by concerns about the safety of such plants. Since the Court finds that California was not so motivated, this suggestion is unnecessary to the [461 U.S. 190, 224] Court's holding. More important, I believe the Court's dictum is wrong in several respects.
The Court takes the position that a State's safety-motivated decision to prohibit construction of nuclear powerplants would be pre-empted for three distinct reasons. First, the Court states that "the Federal Government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the States." Ante, at 212. Second, the Court indicates that "a state judgment that nuclear power is not safe enough to be further developed would conflict squarely with the countervailing judgment of the NRC . . . that nuclear construction may proceed notwithstanding extant uncertainties as to waste disposal." Ante, at 213. Third, the Court believes that a prohibition on construction of new nuclear plants would "be in the teeth of the Atomic Energy Act's objective to insure that nuclear technology be safe enough for widespread development and use." Ibid. For reasons summarized below, I cannot agree that a State's nuclear moratorium, even if motivated by safety concerns, would be pre-empted on any of these grounds.
First, Congress has occupied not the broad field of "nuclear safety concerns," but only the narrower area of how a nuclear plant should be constructed and operated to protect against radiation hazards. 1 States traditionally have possessed the authority to choose which technologies to rely on in meeting their energy needs. Nothing in the Atomic Energy Act limits this authority, or intimates that a State, in exercising this authority, may not consider the features that distinguish nuclear plants from other power sources. On the contrary, 271 of the Act, 68 Stat. 960, as amended, 42 U.S.C. 2018, indicates that States may continue, with respect to nuclear [461 U.S. 190, 225] power, to exercise their traditional police power over the manner in which they meet their energy needs. There is, in short, no evidence that Congress had a "clear and manifest purpose," Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), to force States to be blind to whatever special dangers are posed by nuclear plants.
"If a state utility regulatory agency like California's Energy Commission is prevented from making a general evaluation of feasibility, on broad grounds of social, economic and ideological policy, then the decision whether to build a nuclear facility in a state will ultimately be made only by the public utility seeking its construction. . . . It would be ironic if public energy utilities, granted a jurisdictional monopoly in large part because of their heavy regulation by the state, were freed from regulatory oversight of the one decision which promises to affect the greatest number of persons over the greatest possible time." Ibid. (emphasis in original).
In short, there is an important distinction between the threshold determination whether to permit the construction of new nuclear plants and, if the decision is to permit construction, the subsequent determinations of how to construct [461 U.S. 190, 226] and operate those plants. The threshold decision belongs to the State; the latter decisions are for the NRC. See Note, May A State Say "No" to Nuclear Power? Pacific Legal Foundation Gives a Disappointing Answer, 10 Envir. L. 189, 199 (1979) (criticizing District Court decision in the present case).
The Court's second basis for suggesting that States may not prohibit the construction of nuclear plants on safety grounds is that such a prohibition would conflict with the NRC's judgment that construction of nuclear plants may safely proceed. A flat ban for safety reasons, however, would not make "compliance with both federal and state regulations . . . a physical impossibility." Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 -143 (1963). The NRC has expressed its judgment that it is safe to proceed with construction and operation of nuclear plants, but neither the NRC nor Congress has mandated that States do so. 2 See ante, at 205.
A state regulation also conflicts with federal law if it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67 (1941). The Court suggests that a safety-motivated state ban on nuclear plants would be pre-empted under this standard as well. See ante, at 213, 221-222. 3 But Congress has merely encouraged the development [461 U.S. 190, 227] of nuclear technology so as to make another source of energy available to the States; Congress has not forced the States to accept this particular source. See Note, 10 Envir. L., at 199 ("Congress has not evidenced a dictatorial intent for every state to build nuclear powerplants"). A ban on nuclear plant construction for safety reasons thus does not conflict with Congress' objectives or purposes.
The Atomic Energy Act was intended to promote the technological development of nuclear power, at a time when there was no private nuclear power industry. The Act addressed "the practical question of bringing such an industry into being," 4 in order to make available an additional energy source. The Court makes much of the general statements of purpose in the Act and the legislative history, see ante, at 221, but those statements simply reflect Congress' desire to create a private nuclear power industry. Congress did not compel States to give preference to the eventual product of that industry or to ignore the peculiar problems associated with that product. See Wiggins, 13 U. C. D. L. Rev., at 78.
In sum, Congress has not required States to "go nuclear," in whole or in part. The Atomic Energy Act's twin goals were to promote the development of a technology and to ensure the safety of that technology. Although that Act reserves to the NRC decisions about how to build and operate nuclear plants, the Court reads too much into the Act in suggesting that it also limits the States' traditional power to decide what types of electric power to utilize. Congress simply has made the nuclear option available, and a State may decline that option for any reason. Rather than rest on the elusive test of legislative motive, therefore, I would conclude that the decision whether to build nuclear plants remains with the States. In my view, a ban on construction of nuclear powerplants would be valid even if its authors were motivated by fear of a core meltdown or other nuclear catastrophe.
[ Footnote 1 ] The Court recognizes the limited nature of the federal role, ante, at 205, but then describes that role in more expansive terms, ante, at 212-213.
[ Footnote 2 ] A conflict would exist, of course, if the NRC determined that construction of nuclear plants could not proceed and a State nevertheless chose to go ahead with construction. Cf. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S., at 143 .
[ Footnote 3 ] The Court states that such a ban would be "in the teeth of the Atomic Energy Act's objective to insure that nuclear technology be safe enough for widespread development and use." Ante, at 213. A State's decision not to permit construction of nuclear plants, however, affects only indirectly the Atomic Energy Act's goal of ensuring that nuclear power be safe enough [461 U.S. 190, 227] for widespread development. A safety-motivated ban might highlight a State's perception that the federal safety goal had not been accomplished, but the ban itself would not interfere with efforts to achieve that goal. The Court apparently believes the Atomic Energy Act's actual purpose was to maximize the use of nuclear power to satisfy the Nation's needs. A moratorium on construction of nuclear plants would prevent the accomplishment of this goal, but, as demonstrated infra, the Court is incorrect in attributing this goal to Congress. Moreover, the degree to which a nuclear moratorium hampers achievement of the goal does not depend on the motives of its framers.
[ Footnote 4 ] Address by Congressman Cole, Chairman of Joint Committee on Atomic Energy, delivered at International Congress on Nuclear Engineering (June 24, 1954), quoted in Lemov, State and Local Control Over the Location of Nuclear Reactors Under the Atomic Energy Act of 1954, 39 N. Y. U. L. Rev. 1008, 1018 (1964).
[ Footnote 5 ] In 1977, ERDA's functions were transferred to the Department of Energy. 91 Stat. 577, 42 U.S.C. 7151(a) (1976 ed., Supp. V).


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1. V. P. Singh, R. S. Hooda, A. S. Faroda and H. C. Sharma [Effect of different intercrops and fertility levels on the yield and economics of potato]. Crop Res. 2 (2) : 180-184 (1989). Department of Agronomy, Haryana Agricultural University, Hisar-125 004, India.
2. M. S. Kadian, P. C. Pande and M. D. Upadhyay [Seedling tubers from true potato seed (TPS) as planting material for north-west Indo-Gangetic plains of India]. Crop Res. 5 (3) : 499-504 (1992). International Potato Centre, Region VI, IARI Campus, New Delhi-110 012, India.
3. S. C. Negi, J. Shekhar and J. P. Saini [Standardization of optimum seed rate in potato (Solanum tuberosum L.) for cut and whole seed tubers]. Crop Res. 11 (1) : 70-73 (1996). Himachal Pradesh Krishi Vishvavidyalaya Regional Research Station, Kukumseri, Lahaul & Spiti-175 142, India.
4. Azad Singh, B. K. Nehra, S. C. Khurana and R. B. Grewal [Influence of plant density and geometry on proportion of different grade tubers]. Crop Res.12 (3) : 403-405 (1996). Department of Vegetable Crops, CCS Haryana Agricultural University, Hisar-125 004, India.
5. S. K. Das and N. C. Banerjee [Residual effect of manurial treatments in potato on succeeding crops in potato-based crop sequences]. Crop Res. 7 (3) : 320-327 (1994). Department of Agronomy, Bidhan Chandra Krishi Viswavidyalaya, Kalyani-741 235, India.
6. T. P. Singh and R. P. Singh [Effect of rates and methods of nitrogen application on biomass and tuber production of potato]. Crop Res. 8 (3) : 637-639 (1994). Department of Horticulture, G. B. Pant University of Agriculture & Technology, Pantnagar-263 145. India.
7. Azad Singh, B. K. Nehra, S. C. Khurana and M. K. Rana [Influence of plant density and fertility levels on nutrient uptake by potato]. Crop Res. 12 (2) : 219-222 (1996). Department of Vegetable Crops, CCS Haryana Agricultural University, Hisar-125 004, India.
8. S. P. Sharma and J. Shekhar [Comparative efficiency of straight and mixed fertilizers in potato (Solanum tuberosum L.)]. Crop Res. 4 (1) : 157-160 (1991). Regional Research Station, Himachal Pradesh Krishi Vishvavidyalaya, Kukumseri, Lahaul & Spiti (H. P.), India.
9. S. K. Das and N. C. Banerjee [Nutrient uptake of crops and fertility status of soil at different manurial treatments under potato-based crop sequences]. Crop Res. 7 (3) : 334-342 (1994). Department of Agronomy, Bidhan Chandra Krishi Viswavidyalaya, Kalyani-741 235, India.
10. V. Suryanarayana Reddy, H. V. Nanjappa, K. S. Krishnappa and V. Shankaranarayana [Chemical weed control in potato under irrigated conditions]. Crop Res. 8 (1) : 32-36 (1994). U. A. S. Agricultural Research Station, Chintamani, Kolar District, Karnataka, India.
11. B. S. Lakra [Relationship between irrigation levels and black scurf development in potato crop]. Crop Res. 10 (3) : 381-383 (1995). Department of Plant Pathology, CCS Haryana Agricultural University, Hisar-125 004, India.
12. V. J. Shivankar and V. S. Kavadia [Effect of crop rotation on the persistence and absorption of heptachlor]. Crop Res 5 (1) : 134-140 (1992). Department of Entomology, Rajasthan College of Agriculture, Udaipur-313 001, India.
13. B. S. Lakra [Prevalence of diseases of potato crop in Haryana]. Crop Res. 14 (2) : 357-360 (1997). Department of Plant Pathology, CCS Haryana Agricultural University, Hisar-125 004, India.
14. Akhilesh Singh and D. V. Singh [Control of common scab (Streptomyces aureofaciens) of potato (Solanum tuberosum) by soil treatment with chemicals]. Crop Res. 9 (2) : 330-333 (1995). C. S. Azad University of Agriculture and Technology, Kanpur-208 002, India.

matches: V. V. V. V. V. V. V.


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This appeal arises from a suit for conversion filed by Shalanda Augillard alleging that Tiffany Madura and Richard Toro wrongfully exercised dominion and control over Augillard's black cocker spaniel, Jazz, who was recovered from New Orleans in the wake of the Hurricane Katrina. The central issue at trial and the only disputed issue on appeal is whether Augillard's dog, Jazz, and the dog that Madura adopted from New Orleans after Hurricane Katrina, Hope, are in fact the same dog. Augillard asserts on appeal that the trial court erred in disregarding conclusive evidence, including forensic DNA analysis, establishing that Hope and Jazz are the same dog.
*1 This appeal arises from a suit for conversion filed by Shalanda Augillard alleging that Tiffany Madura and Richard Toro FN1 wrongfully exercised dominion and control over Augillard's black cocker spaniel, Jazz, who was recovered from New Orleans in the wake of the Hurricane Katrina disaster in August of 2005.FN2 Madura responded that while she did adopt a dog that had been rescued from New Orleans, her dog, Hope Floats (“Hope”), is not the same dog that Augillard lost in the flood. The case was tried before the court, which found that Augillard failed to prove by a preponderance of the evidence that the dog in question was Jazz and entered judgment in favor of Madura. Augillard asserts on appeal that the trial court erred in disregarding conclusive evidence, including forensic DNA analysis, establishing that Hope and Jazz are the same dog and in denying Augillard's request for injunctive relief. In two points of error, Augillard challenges the legal and factual sufficiency of the evidence supporting the trial court's judgment. Because we conclude that the evidence is legally insufficient, we reverse and render judgment in favor of Augillard.
This case began in May 2006 when Augillard filed suit for conversion, seeking a temporary restraining order and an injunction in an effort to have the dog she believed was Jazz returned to her. After several hearings on Augillard's motions, the court ordered that the dog remain in Madura's possession but enjoined Madura from moving the dog outside of Hays County. The case proceeded to trial in June 2007.
The central issue at trial and the only disputed issue on appeal is whether Augillard's dog, Jazz, and the dog that Madura adopted from New Orleans after Hurricane Katrina, Hope, are in fact the same dog. In an effort to prove Jazz's identity, Augillard offered two DNA tests and expert testimony regarding Jazz's and Hope's similar medical conditions, as well as her mother's and her own testimony that each of them had personally identified Hope as Jazz.
*2 Augillard also testified concerning Jazz's medical history. She stated that for about six years, Jazz had suffered from thyroid problems, a skin condition that caused thinning of Jazz's hair, and bladder problems that resulted in Jazz's frequent urination and the occasional appearance of blood in her urine. Professional photographs that Augillard had taken of Jazz in 2003 or 2004 were admitted into evidence and showed that Jazz's hair was thinning around her neck and the lower portion of her body, which Augillard testified was a “fairly common” condition for Jazz. The trial record also contains a portion of Jazz's veterinary documents (those that survived the flood), which indicate that Jazz (1) had been administered her shots and vaccinations, (2) received regular physical examinations, (3) was prescribed several different medications, including Cephalexin and Neopredef powder, and (4) had been regularly bathed and groomed.
fairly common in an older cocker spaniel. The thin coat goes along with [hypo]thyroidism. Bad ears-cockers are known for bad ears. Those are typical for any cocker spaniel you see. This one did have diarrhea, which wouldn't be surprising not having-not knowing what it had eaten in the last several days. [The dog had] some internal parasites as well as fleas. The dog did have some evidence of staph infection in the skin. And certainly the staph infection in the skin and the yeast infection in the ears would go along with being in the water, especially in a [hypo]thyroid dog.
House testified further that the dog “was probably well taken care of,” evidenced by the fact that she had been groomed recently and had been given heartworm-prevention medication. When asked whether he had detected the golf-ball-sized bladder stones, House testified that he examined the dog's bladder but did not feel any stones.
*3 Madura's veterinarian, Dr. Donop, testified that Madura brought Hope in for an examination in September of 2005 after the dog showed signs of having a bladder problem. He stated that Hope presented as “a happy dog” who was overweight and had “seborrhea or greasy skin, kind of thin-haired greasy skin,” which he suspected was the result of hypothyroidism. He testified that when he first examined Hope, he performed an ultrasound examination, which is done for all “urine-tract-prone animals,” and that he found no bladder stones at that point. After problems continued for several weeks, Donop took x-rays, revealing two “larger than golf-ball-sized stones” that he had not previously detected. Donop was permitted to testify, over Augillard's objection, that the size of the bladder stones indicated that the condition should have been diagnosed earlier because “you aren't going to grow these sized rocks in a week's time.” He further stated that he believed Hope's glandular condition was due to her hypothyroidism, which also causes a dog to have a “strong” odor.
Donop was asked on cross-examination whether the dog's skin condition could have been exacerbated by stress, and he testified that stress could increase both the severity of the skin condition and the growth of bladder stones.
Halverson testified that the second test, which was conducted a month later, compared Hope's mitochondrial DNA to the mitochondrial DNA taken from Madison, a cocker spaniel born to the same mother as Jazz.FN10 The results showed that Hope and Madison have the same mitochondrial type, which occurs when two dogs are maternal relatives, and that Hope and Madison could therefore have the same mother. Halverson testified that her lab's database contains a fairly diverse number of mitochondrial types for cocker spaniels and that, given the vast extent to which cocker spaniels have been bred in the United States, mitochondrial types among the cocker spaniel breed are more diverse than among other breeds. She further stated that the mitochondrial type shared by Hope and Madison is not shared by any of the other cocker spaniels in the database.
Halverson admitted on cross-examination that it was “potentially true” that there could be a chain of cocker spaniels who would all be related through the mother's DNA and that such a chain could consist of hundreds of dogs spanning several generations. She clarified that in practice, however, there is generally not such a “concentration of certain mitochrondrial types,” and she rejected counsel's suggestion that perhaps even “thousands” of cocker spaniels would share the same mitochondrial type, i.e., that they would all derive from a single maternal relative.
The main disputed issue involved whether or not Augillard owned the property, i.e. the dog. Augillard failed to prove the case by a preponderance of evidence.
The testimony of Augillard's witnesses was not credible.
A reasonable fact finder could not find that the D.N.A. evidence presented by Augillard has been authenticated or identified thus indicating a high potential for tampering.
Augillard asserts that the evidence is legally and factually insufficient to support the trial court's judgment because she conclusively established every element of her claim for conversion. We agree.
When a party attacks the legal sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). In order to establish conversion of personal property, a plaintiff must prove that (1) she owned or had legal possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised dominion and control over the property to the exclusion of, or inconsistent with the plaintiff's rights as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return the property. Apple Imports, Inc. v. Koole, 945 S.W.2d 895, 899 (Tex.App.-Austin 1997, writ denied). It is undisputed that Madura exercised dominion and control over the dog, Augillard demanded return of the dog, and Madura refused to return the dog to Augillard. Therefore, as the trial court correctly determined, resolution of this matter turns on whether Augillard established that she owned the dog, thereby making Madura's possession unlawful.
The trial court found that Augillard failed to prove that Jazz and Hope are the same dog and thus failed to prove ownership. In reviewing the legal sufficiency of the evidence, we must credit evidence that supports the verdict if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). Under our legal-sufficiency review, we cannot disregard contrary evidence that conclusively establishes the opposite of a vital fact. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (per curiam) (court must first examine record for evidence supporting verdict, ignoring all evidence to contrary; if there is no such evidence, court then examines entire record to see if contrary finding is established as matter of law). “Proper legal-sufficiency review prevents reviewing courts from substituting their opinions on credibility for those of the jurors, but proper review also prevents jurors from substituting their opinions for undisputed truth. When evidence contrary to a verdict is conclusive, it cannot be disregarded.” City of Keller, 168 S.W.3d at 816-17. This is equally true when the factfinder is the trial court, rather than a jury. See id. at 816 n. 66 (citing Murdock v. Murdock, 811 S.W.2d 557, 560 (Tex.1991)). While the factfinder is the sole judge of credibility, decisions regarding credibility must be reasonable, and the factfinder is not permitted to ignore undisputed testimony that is “clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted.” Id. at 820.
*5 Augillard argues that it was error for the trial court to ignore uncontroverted DNA evidence conclusively establishing that Hope and Jazz are the same dog. The results of the first DNA analysis confirmed that the sample collected from Hope was a “perfect match” to the material Halverson extracted from Jazz's dog brush, establishing to a very high degree of scientific certainty that Hope and Jazz are the same dog. Madura neither offered contrary DNA evidence nor disputed the validity of this perfect DNA match. While it is “impossible to define precisely when undisputed evidence becomes conclusive,” as the court explained in City of Keller, “undisputed contrary evidence becomes conclusive (and thus cannot be disregarded) when it concerns physical facts that cannot be denied.” Id. at 815.
In this respect, we think Madura's challenge to the DNA evidence presents a situation analogous to that in Murdock. In Murdock, an alleged father challenged the court's finding of paternity and judgment ordering him to pay child support after blood tests excluded him as the biological father of a child born to his ex-wife during their marriage. 811 S.W.2d at 558. The mother did not object to the admission of the blood tests at trial or attempt to dispute their validity. Rather, she testified that she never had sexual relations with any other men during the marriage and that her ex-husband had always treated the child as his own. Id.
Despite the fact that the blood tests were admitted without objection and showed that Murdock had not fathered the child, the court of appeals held that the evidence was legally insufficient to establish that the tests were “properly conducted” and affirmed the judgment of the trial court. Id. at 560. Reversing the court of appeals, the Texas Supreme Court held that “[o]nce the trial court receives blood test results into evidence, they are admitted for all relevant purposes just like any other piece of evidence.” Id. The supreme court concluded that the evidence offered by the alleged father was conclusive proof that he was not the father of the child and that he was therefore entitled to judgment in his favor. Id.
Once it admitted into evidence the DNA analysis confirming that the dog in Madura's possession is in fact Augillard's dog, the trial court erred by choosing to disregard that evidence, which was conclusive of the vital fact of the dog's ownership. Madura's subsequent attempts to cast doubt on the authenticity of the samples amounted to no more than “mere surmise or suspicion,” see Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004), that Augillard had somehow extracted a DNA sample from Hope and planted it on items belonging to Jazz; such conjecture will not sustain the verdict in the face of conclusive, uncontroverted evidence establishing the dog's identity-evidence that a reasonable factfinder could not have disregarded. We sustain Augillard's first issue.
Because we hold that the evidence is legally insufficient to support the judgment of the trial court, we reverse and render judgment in favor of Augillard.
Concurring Opinion by Justice PATTERSON.
I concur in the judgment only.
FN2. The circumstances following the hurricane have been well documented, particularly concerning the effects on New Orleans's pet population:Hurricane Katrina made landfall at 6:10 a.m. on August 29, 2005. Within hours Louisiana's levee system was overtopped and breached. By August 31, eighty percent of New Orleans was under water. The media bombarded the public with images and stories of animals stranded alone amidst the devastation. These accounts poignantly conveyed the message that our national policies and laws were severely flawed when it came to animals and disasters.
Megan McNabb, Pets in the Eye of the Storm: Hurricane Katrina Floods the Courts With Pet Custody Disputes, 14 Animal L. 71, 72 (2007) (citations omitted).
FN3. In response to Hurricane Katrina, Congress passed the Pet Emergency Transportation Safety Act of 2006. The PETS Act requires local and state disaster plans to include provisions for household pets and service animals in the event of a natural disaster or emergency in order for the locality to be eligible for Federal Emergency Management grants. See H.R. 3858, 109th Cong. (2006) (enacted).
FN5. In the chaotic aftermath of the flood, at least 50,000 pets were stranded in the New Orleans area. McNabb, supra note 2, at 75. Approximately 15,000 were rescued by Animal Control and other volunteers; of these, about 3,000 were promptly reunited with their owners, while 12,000 were adopted. Id. Many of these 12,000 pets were transported to jurisdictions as far away as New Jersey, Arizona, and Pennsylvania. Id. at 76; see also id. at 84-103 (surveying the post-Katrina pet-custody litigation).
FN6. This evidence was offered through the testimony of Garrett Donop, one of the veterinarians who treated Hope after she was brought to Texas. Although Donop had previously testified at the temporary injunction hearing, Augillard objected to Donop's testifying as an expert witness at trial on the basis that Madura had failed to designate Donop as an expert. The trial court sustained Augillard's objection and permitted Donop to offer only factual testimony concerning his observations of the dog. Madura does not a raise a cross-point on appeal complaining that Donop's expert testimony was improperly excluded during trial.
FN7. Halverson is also a licensed veterinarian and holds advanced degrees in veterinary medicine and veterinary epidemiology. At trial, Madura did not object to Halverson's being qualified as an expert.
FN10. Both Jazz's and Madison's American Kennel Club pedigree papers were admitted into evidence, establishing that they shared the same dam, Hunter's Little Lady III. Madison's owner, a project engineer for Lockheed Martin, traveled from Virginia to testify at trial concerning Madison's matrilineage; she also testified regarding the chain of custody of Madison's DNA sample and its submission to the DNA lab for analysis.
FN11. The judgment also disposed of Madura's counterclaims against Augillard, which are not relevant to this appeal.
FN12. Augillard testified at trial about providing Jazz's dog sweaters and brush for DNA testing:Q. After this suit was filed, were you asked to find things that might have Jazz's hair on it?A. Yes.Q. What types of things did you look for that might have Jazz's hair on it?A. Hairbrush, sweaters, anything that I could find that belonged to her.Q. And were you asked to do that after the hearings in May?A. Yes.Q. Okay. Did you find the hairbrush or sweater?A. Yes, I found both.Q. And what did you do with those items?A. I put them in a bag and placed them in my trunk until the next hearing in San Marcos.Q. And then what did you do with them?A. After the hearing I gave them to [my attorney].Q. Did you examine or tamper with those brushes or sweaters in any way?A. No.Q. Did you plant any DNA evidence on the brushes or sweaters?A. No.Consistent with those statements, Dr. Halvorsen testified that she received FedEx shipments with chain of custody slips indicating that the dog brush and sweaters were sent to her lab by Augillard's attorney.
Q. Did you see a dog that you believed to be your daughter's dog on May 5, 2006?A. Yes.Q. Thank you. Did you brush the dog at that time?A. No.Q. Did you recognize the dog?A. Yes.Q. Was it your daughter's dog?A. Yes.Q. Have you ever taken any samples of any kind, blood, hair, or otherwise, from the dog?A. No.Q. Have you seen anyone do that?A. No.
FN13. As we understand it, Madura's challenge is limited to the authenticity of Jazz's DNA sample extracted from Jazz's dog brush. Madura has never argued that the samples used in the second DNA analysis involving Madison were tainted, nor has she questioned the authenticity of the buccal swabs obtained from Hope. With respect to her tampering allegation, Rule 901(a) provides that the authentication or identification of an item for admissibility purposes is satisfied by evidence that is sufficient to support a finding that the item in question is what its proponent claims. Tex.R. Evid. 901(a); Silva v. State, 989 S.W.2d 64, 67 (Tex.App.-San Antonio 1998, pet. ref'd). “A showing of the possibility of tampering or commingling is not sufficient to bar admission of the evidence, and goes only to the weight of the evidence.” Dossett v. State, 216 S.W.3d 7, 17 (Tex.App.-San Antonio 2006, pet. ref'd) (citing Darrow v. State, 504 S.W.2d 416, 417 (Tex.Crim.App.1974)) (emphasis in original).
FN14. In her briefing to this Court, Madura cites Halverson's testimony from the hearing on the reconsideration of the temporary injunction that occurred on December 12, 2006, to support the trial court's finding that there was a “high potential for tampering.” Halverson's testimony at that hearing, in which she stated that her results were “only as good as the samples” given to her and that, as far as she knew, both samples could have come from Hope, does not contradict the evidence that Augillard had no opportunity to obtain a DNA sample from Hope. Even more significantly, Halverson's previous testimony was not admitted by the trial court and was not part of the record in this case. Although the trial court took judicial notice of its file, “the trial court cannot take judicial notice of testimony from a previous proceeding at a subsequent proceeding unless the testimony is admitted into evidence at the subsequent proceeding.” Paradigm Oil, Inc. v. Retamco Operating, Inc., 161 S.W.3d 531, 539-40 (Tex.App.-San Antonio 2004, pet. denied). See also Escamilla v. Estate of Escamilla, 921 S.W.2d 723, 726 (Tex.App.-Corpus Christi 1996, writ denied); Muller v. Leyendecker, 697 S.W.2d 668, 675 (Tex.App.-San Antonio 1985, writ ref'd n.r.e.).
FN15. We also note the obvious dissonance between the emotional investment at the heart of the human-pet relationship and the current legal system, which identifies this eleven-year-old cocker spaniel with chronic health problems as “property,” subject to suit for conversion and identified in terms of her economic worth. Given the parties' considerable expenditure in this case, it goes without saying that Jazz's significance as a cherished member of Augillard's family-as well as her importance to her caretakers of almost three years, Tiffany Madura and Richard Toro-far exceeds her market value. Thus, while resolving this appeal in accordance with the applicable law governing ownership of chattel, we recognize that there are important non-economic interests at stake in this case. As one commentator has remarked,People do not plan memorial services, or invest in serious medical treatment for their books or lawnmowers. They don't plan to pay more in insurance premiums than the purchase price or replacement cost of the property they seek to protect. Individuals do not leave money for their bicycles in their wills, or seek visitation arrangements for their televisions upon the termination of their marriages.
Kathy Hessler, Mediating Animal Law Matters, 2 J. Animal L. & Ethics 21, 28 (2007).

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