Conn. v. American Electric, Memo in Support of Motion to Dismiss ...

1960), and Pauling v. McNamara, 331 F.2d 796 (D.C. Cir. 1964), are closely analogous both
factually and legally to the present cases against TVA. In McElroy, plaintiffs sought to enjoin
the Secretary of Defense and members of the Atomic Energy Commission from detonating
nuclear weapons for testing purposes, alleging that the world-wide fallout from such nuclear
testing would increase the radioactive strontium in soil, increase the amount of contamination in
the world food supply and in the bones of human beings, contribute to the exposure of human
beings to radiation, and cause possible injury to plaintiffs and others. 278 F.2d at 253. The D.C.
Circuit affirmed dismissal of the case, stating:
The District Court correctly held that the . . . complaints presented no
justiciable controversy. The relief here sought is to stop actions of the Executive
which Congress has explicitly authorized. . . . The acts and powers challenged
here are plainly authorized by law and are not prohibited by the Constitution. . . .
[It is] settled law that the questions presented by the pleadings are in that area of
the law where the Executive and the Legislature are supreme.
Id. at 254. In the subsequent McNamara case, plaintiffs sought the same injunctive relief based
on allegations that they had been damaged genetically, somatically, and psychologically.
331 F.2d at 799. The district court dismissed the case on four grounds, including the ground that
“the actions and powers challenged were plainly authorized by law and the Constitution.” Id. at
797. Affirming, the D.C. Circuit stated “[t]he District Court was plainly correct on all points”
and held the case was properly dismissed based on the
fundamental principle that the executive action challenged by the pleadings
plainly falls in that area where the Executive and Legislative Branches are
supreme and final, reviewable only by the electorate, not by the courts.
(. . . continued)
Women Against Cruise Missiles v. Reagan, 591 F. Supp. 1332, 1335 (S.D.N.Y. 1984) (noting
that a case is nonjusticiable if there is an “impossibility of deciding [the case] without an initial
policy determination of a kind clearly for nonjudicial discretion”) (quoting Baker v. Carr,
369 U.S. 186, 217 (1961)).
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