Full opinion text
AMENDED MEMORANDUM AND ORDER FAIRNESS OF CLASS SETTLEMENT WEINSTEIN, District Judge: TABLE OF CONTENTS I. INTRODUCTION II. HEARINGS III. FAIRNESS DETERMINATION A. SETTLEMENT TERMS B. FAIRNESS FACTORS 1. The Complexity, Expense and Probable Duration of the Litigation. 2. The Reaction of the Class to the Settlement. 3. The Stage of the Proceedings and the Amount of Discovery Completed. 4. The Risks of Establishing Liability. 5. The Risks of Establishing Damages. 6. The Risks of Maintaining the Class Action at Trial. 7. The Ability of the Defendant to Withstand a Greater Judgment. 8. The Range of Reasonableness of the Settlement Fund in the Light of the Best Possible Recovery. 9. The Reasonableness of the Settlement Fund in Light of the Attendant Risks of Litigation. a. Minimizing Rate Increases. b. Closing Shoreham. C. ADDITIONAL FACTORS AND CLASS MEMBER OBJECTIONS 1. The Sum to be Received is Not Certain. 2. Subclasses are Needed. 3. The Court Exercised Influence on the Terms of the Final Agreement. 4. Members of the Class are Giving Up Their Rights to Appear Before the Public Service Commission. 5. The Amount Set Aside for Attorneys’ Fees is Too Large. 6. The Parties Did Not See the Final Agreement Soon Enough. 7. It is Unfair for Suffolk County Taxpayers Not to Reap the Benefits of the Settlement. 8. The Public Should Not be Required to Subsidize Management and Shore-ham Costs. 9. The Future of Shoreham is Unclear. 10. A Citizens Advisory Panel Should Be Established. 11. Conservation is Required. D. UNITED STATES E. STONE & WEBSTER ENGINEERING CORP. F. SUMMARY OF REASONS FOR APPROVAL IV. CONCLUSION EXHIBITS: Exhibit 1 — Final RICO Settlement Agreement dated February 27, 1989 Appendix A — February 14 Agreement Appendix B — Agreement with Stone & Webster Engineering Corporation Appendix C — Instructions and Proof of Claim Form Appendix D — Proof of Claim of the United States of America Appendix E — Summary Notice of Partial Settlement of Class Action Appendix F — Final Judgment and Order of Dismissal of RICO Class Action [omitted] Appendix G — Final Judgment and Order of Dismissal of False Claims Action [omitted] Exhibit 2 — Governor’s Press Release and Agreement dated February 28, 1989 [Press Release omitted] I. INTRODUCTION This case involves the economic well being and the health of millions of people and thousands of businesses dependent upon the Long Island Lighting Company (LILCO) for electric power. It raises profound issues of federalism, of public utility regulation and of the reach in civil litigation of a revolutionary statute designed to bring to justice racketeers under the Racketeer Influenced and Corrupt Organization Act (RICO), 18 U.S.C. §§ 1961 et seq. It implicates serious political struggles of New York State and Suffolk County legislators and of a Governor and County Executive as well as of town and school district officials. It brings to the surface private agendas for publicly owned power and deep antipathy towards large corporations, particularly utilities. It has elements of xenophobia and hysteria. It reflects a deep populist strain of our citizens and an urge to stand up for what they believe in, to speak out on public issues and to be heard by public officials. Stronger than the other rational and emotional aspects of the case is a pervasive fear of atomic energy generally and the Shoreham Nuclear Power Station (Shoreham) in particular; if there was one overriding theme of plaintiffs in the case it was that Shoreham must close. To understand this case is to appreciate that money alone and an economic theory of litigation do not fully explain the dynamics of mass tort litigation. The exhausting, debilitating and costly years of hostility, misunderstanding and poor judgments about Shoreham need to be put behind the parties. There are no absolutes, no clearly right or wrong way to end the dispute. All that is crystal clear and indisputable is that the controversy must be ended as soon as possible. Claims are asserted under the RICO statute against LILCO by a class of over one million of the utility’s past and present ratepayers. Prior opinions, memoranda and orders have described the litigation in detail. See County of Suffolk v. Long Island Lighting Co., 685 F.Supp. 38 (E.D.N.Y.1988) (denying motion to dismiss); 710 F.Supp. 1405 (E.D.N.Y.1989) (discussing class certification issues); 710 F.Supp. 1406 (E.D.N.Y.1989) (concerning hearing and briefing schedules); 710 F.Supp. 1387 (E.D. N.Y.1989) (dismissing RICO claims of Suffolk County after a trial at which Suffolk obtained a verdict in its favor); 710 F.Supp. 1407 (E.D.N.Y.1989) (certifying class and appointing class counsel). See also 710 F.Supp. 1477 (E.D.N.Y.1989) (ordering distribution of attorneys’ fees); United States ex rel. Dick and Daly, 710 F.Supp. 1485 (E.D.N.Y.1989) (dismissing False Claims Act claims of qui tarn plaintiffs). On February 15, 1989, hearings were ordered to determine whether the terms for settlement of this action, reached with the assistance of the court-appointed mediator, Kenneth R. Feinberg, Esq., and agreed to by the class representative and the defendants, were fair and reasonable. See 710 F.Supp. 1422 (E.D.N.Y.1989). The final settlement agreement entered into on February 27, 1989 is attached as exhibit 1 to this memorandum. By the February 15 order the court directed that notice of the hearings be provided to class members. Notice was given by direct mail to almost one million customers of LILCO, by advertising in daily and weekly newspapers, and by news stories carried extensively in the press and by radio and television. II. HEARINGS Two hearings, on March 1 and March 9, were conducted in the ceremonial courtroom in the main courthouse in Brooklyn with seating for 500 persons; one on March 8th in the Uniondale, Nassau County, courthouse with seating for 175 persons; and one on March 3rd in the Haup-pauge, Suffolk County courthouse, with one courtroom equipped for 150 persons and another, where the proceedings were piped in, with 100 seats for an overflow of attendees. Hundreds of people appeared at the hearings and many of them spoke. Additional time was afforded for briefing. A substantial number of letters from ratepayers were received. Hearings are mandated by Rule 23(e) of the Federal Rules of Civil Procedure, which reads: (e) Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. Those affected by the settlement must be given the best notice practicable and a full opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). Members of the class require “a full and fair opportunity to consider the proposed decree and develop a response.” Williams v. Vukovich, 720 F.2d 909, 921 (6th Cir.1983). Hearings and review by the court are designed to satisfy four needs: First, they afford any person whose rights might be affected an opportunity to support or oppose the settlement; silence may, depending on the circumstances, be deemed assent. Second, they prevent private deals for the benefit of lawyers or special groups contrary to the best interests of the class. Third, they protect the rights of those whose interests have not been adequately considered by the parties. Fourth, they assure each class member that the right to be heard by the court on matters of vital personal interest has not been violated by others who speak without consultation and consent. See, generally, In re “Agent Orange” Product Liab. Litig., 597 F.Supp. 740, 758 (E.D.N.Y.1984), aff'd., 818 F.2d 145 (2d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 695, 98 L.Ed.2d 647 (1988) (and authorities there cited). The court acts “as a guardian of the rights of absent class members.” Grunin v. International House of Pancakes, 513 F.2d 114, 123 (8th Cir.), cert. denied, 423 U.S. 864, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975). Notice and the opportunity to be heard fully complied with legal standards. The court was able to exercise its responsibilities to protect the class. III. FAIRNESS DETERMINATION We set out first, as a basis for discussion, a description of the settlement. This is followed by a summary of arguments of counsel and experts for the class supporting the agreement. Following that is a description of the nine elements that must be considered by the court in the fairness inquiry, with the most extensive discussion devoted to comments of those opposing the settlement. This commentary is succeeded by analysis of a variety of other factors the court considered as a result of the hearings, with major emphasis on the issue of closing Shoreham. Finally, there is a summary of the decision of the court approving settlement after interpreting some of the terms of the agreement. A. SETTLEMENT TERMS The settlement consists of five main elements: 1) a schedule of payments to the class over an eleven year period, with limited power of the court to defer or accelerate payments upon application by a party; 2) a fund of up to ten million dollars for legal and related costs; 3) organization of a Citizens Advisory Panel to assist the class and LILCO over the next five years, which is interpreted by the court to permit extension until all payments are made (with availability of portions of the $10 million legal fee fund for aid of the panel as permitted by the court); 4) releases which give up class members’ rights to sue on the present RICO claims in state or federal courts, which, as interpreted by the court, permit any member of the class to complain to the New York Public Service Commission (PSC); and 5) provisions ensuring that the payments to the class will not be recovered by LILCO through rate increases. The schedule of payments is as follows: Immediately — Up to $10 million for legal fees and expenses. June 1990 — $20 million (up to $10 million of this sum to go to former ratepayers) June 1991 — $20 million June 1992 — $20 million June 1993 — $30 million June 1994 — $30 million June 1995 — $40 million June 1996 — $50 million June 1997 — $60 million June 1998 — $60 million June 1999 — $60 million At the fairness hearings a fully qualified and credible expert for the class testified that the settlement was fair and reasonable if Shoreham closed. He relied upon his own studies and the computations by experts on the staff of the PSC. The PSC’s conclusion was that the total agreed to be paid by LILCO spread over ten years was the largest sum that could be paid without having an adverse impact on ratepayers as well as LILCO. Plaintiff’s expert described a “boomerang effect.” He was of the opinion that higher payments in the RICO settlement would present a serious danger to LILCO by threatening investor confidence in the financial health of the utility. This would lead to higher interest rates if LILCO’s bonds were not certified as of investment quality. The higher interest rates would, in turn, under standard PSC practice, be charged back to ratepayers as allowable utility costs. These additional costs would then, the experts for the PSC concluded, more than outweigh any increased level of payments above the schedule set out above. An expert called as a witness by one of the intervenors testified that in his opinion LILCO could make higher payments without creating a “boomerang effect.” His testimony was contradicted by more credible information in the record, was based upon a superficial analysis, and is rejected as unreliable and not credible. There is some dispute about how many of the original named plaintiffs support and how many oppose the settlement. It was these plaintiffs who, on recommendation of counsel for Suffolk County, retained Judith Vladeck, Esq., as their counsel to represent the class. Ms. Vladeck, a highly qualified attorney, was thereafter designated by the court to represent the class. At the hearings some of these plaintiffs opposed the settlement. Others of these named plaintiffs supported the settlement. Some appeared to be dubitante. Ms. Vladeck’s affidavit suggests that a' minority of the named plaintiffs are opposed. Like her, the majority will be satisfied with the settlement only if Shoreham is closed. In any event, Ms. Vladeck has represented the entire class, not merely her original clients, from the time the class was certified and she was designated class counsel. “Class counsel’s duty to the class as a whole frequently diverges from the opinion of either the named plaintiff or other objectors.” Walsh v. Great Atl. & Pac. Tea Co., 726 F.2d 956, 964 (3rd Cir.1983). See also Parker v. Anderson, 667 F.2d 1204, 1210-11 (5th Cir.), cert. denied, 459 U.S. 828, 103 S.Ct. 63, 74 L.Ed.2d 65 (1982) (consent decree in class action upheld despite objections of a named party and class representative). Parker v. Anderson is a leading case on this issue. In Parker, the court of appeals affirmed the approval of a class action settlement “granted over the objection of all but one of the eleven named plaintiffs as well as over the objections of a number of class plaintiffs.” Id. at 1207. Rejecting the contention that class counsel did not fairly and adequately represent the class during negotiations, the court wrote: The duty owed to the client sharply distinguishes litigation on behalf of one or more individuals and litigation on behalf of a class. Objectors emphasize the duty of counsel in non-class litigation. The prevailing principles in that situation cannot be imported wholesale into a class action setting. The fairness and adequacy of counsel’s performance cannot be gauged in terms of the representation of the named plaintiffs. The courts have recognized that the duty owed by class counsel is to the entire class and is not dependent on the special desires of the named plaintiffs. It has been held that agreement of the named plaintiffs is not essential to approval of a settlement which the trial court finds to be fair and reasonable. Id. at 1211. Similarly, in Kincade v. General Tire and Rubber Co., 635 F.2d 501, 508 (5th Cir.1981), the court rejected the contention that the settlement could not be applied to named class representatives who did not authorize their attorneys to approve the settlement: Appellants’ argument that the settlement cannot be applied to them because they did not authorize their attorney ... to settle the case or otherwise consent to the settlement is also easily disposed of. Because the “client” in a class action consists of numerous unnamed class members as well as the representatives, and because “[t]he class itself often speaks in several voices ..., it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole....” Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1216 (5th Cir.1978). See also, e.g., Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979); Flinn v. FMC Corp., 528 F.2d 1169, 1174 n. 19 (4th Cir.1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976) (“Appellants do not argue, nor may they under the authorities, that the assent of the class plaintiffs is essential to the settlement, provided the trial court finds it fair and reasonable”); Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799 (3d Cir.), cert. denied, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed.2d 146 (1974); Purcell v. Keane, 54 F.R.D. 455 (E.D.Pa.1972). As the Court of Appeals for the Fifth Circuit has pointed out: Certainly it is inappropriate to import the traditional understanding of the attorney-client relationship into the class action context by simply substituting the named plaintiffs as the client.... Were the class attorney to treat the named plaintiff as the exclusive client, the interests of other class members might go unnoticed and unrepresented. Thus, when a potential conflict arises between the named plaintiffs and the rest of the class, the class attorney must not allow decisions on behalf of the class to rest exclusively with the named plaintiffs. Pettway v. American Cast Iron Pipe Co., 576 F.2d at 1176. The unusual conditions surrounding settlement of a non-class action suit, in which each party has determined for itself that settlement is preferable to going forward, cannot be replicated in a class situation: Class actions are premised on the impracticability of joining all parties in the suit. Individual members are represented in settlement as in all other phases of the litigation by counsel to the representative parties. New members of the class know “their” counsel or have any special reason to have confidence in them. Those class members must, in the ultimate analysis, depend upon the court’s impartiality and judgment. In re “Agent Orange” Prod. Liab. Litig., 597 F.Supp. at 761 (citations omitted). The court in Parker explained that class representatives, who may have individual interests that conflict with the interests of the class as a whole, may not block a settlement that is fair and reasonable for the class: [T]he named plaintiffs should not be permitted to hold the absentee class hostage by refusing to assent to an otherwise fair and adequate settlement in order to secure their individual elements. 667 F.2d at 1211. This rule is particularly appropriate here, where the objecting named plaintiffs are long-time anti-Shore-ham and anti-LILCO activists with interests and political goals that may be antagonistic to the interests of the ratepaying class as a whole. In light of her fiduciary responsibility to the class, counsel was under a duty to ignore any special interests of the objecting class representatives in favor of the overall, general interests of the class as a whole. In these circumstances, the comments of the court of appeals in Salinas v. Roadway Express Inc., 802 F.2d 787, 790 (5th Cir.1986), cert. denied, 479 U.S. 1103, 107 S.Ct. 1335, 94 L.Ed.2d 185 (1987), are particularly appropriate: While we appreciate and sympathize with the individual complaints and concerns expressed by the objectors, we remind the objectors and all other parties that a consent decree is a compromise that cannot possible satisfy every class member’s particular desires; rather, the decree must embody the best settlement available to the class as a whole. This record indicates that gains reached during the settlement could have been delayed, jeopardized or even lost entirely if litigation had continued. Thus, compromises here were fully justified so as not to gamble with the rights of everybody to satisfy the complaints of some. Moreover, as the court pointed out in TBK Partners, Ltd. v. Western Union Corp., 675 F.2d 456, 462 (2d Cir.1982), [M]ajority opposition to a settlement cannot serve as an automatic bar to a settlement that a district judge, after weighing all the strengths and weaknesses of a case and the risks of litigation, determines to be manifestly reasonable. The court further noted that “although relevant, the non-opt-out nature of a class does not give a majority-in-interest an absolute veto of any settlement.” Id., 675 F.2d at 463, n. 7. B. FAIRNESS FACTORS The settlement must be fair, reasonable and adequate in the light of all the circumstances, including the public interest in settling controversies. Carson v. American Brands, 450 U.S. 79, 88 n. 14, 101 S.Ct. 993, 998 n. 14, 67 L.Ed.2d 59 (1981); West Virginia v. Chas Pfizer & Co., 440 F.2d 1079, 1085 (2d Cir.), cert. denied, 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971). See also, e.g., Thompson v. Midwest Foundation Independent Physicians Ass’n, 124 F.R.D. 154 (S.D.Oh.1988) (approving settlement of large RICO case because of the paucity of evidence and the need to provide medical services to 100,000 subscribers). Because the class representatives and their counsel, Ms. Vladeck, were engaged in settlement negotiations prior to certification of the class, the court previously indicated that it would exercise a “heightened responsibility” to review the settlement. See 710 F.Supp. 1422 (E.D.N. Y.1989). “The possibilities of collusion or undue pressure by the defendants on would-be class representatives” make necessary a closer scrutiny when settlement is reached prior to certification of the class. Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983). Thus the Second Circuit requires a “clearer showing of a [pre-certification] settlement’s fairness, reasonableness and adequacy and the propriety of the negotiations leading to it....” Id. Here, although the class was certified before the proposed settlement was reached, the court will apply the heightened standard of Weinberger to satisfy itself that the settlement is the best possible one that could be obtained by the class under the circumstances. There is nothing to indicate that the settlement process itself was tainted by collusion or undue pressure by the defendants upon class representatives and counsel. Prior to certification of the class, the court was informed by the parties on a regular basis of the progress of settlement talks. Both sides were possessed of formidable negotiating skills and significant bargaining power, and negotiations were conducted at arm’s length. The court observed nothing to suggest otherwise. Additionally, an impartial mediator was appointed by the court at the request of the parties to assist in the settlement discussions. The participation of the court-appointed mediator in the negotiating process helped ensure that the proceedings were free of collusion or undue pressure. As demonstrated at greater length in In re “Agent Orange” Product Liab. Litig., 597 F.Supp. at 761 ff. and City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974), the nine factors the court should consider in deciding whether to approve the settlement are: 1. The Complexity, Expense and Probable Duration of the Litigation. To date the dispute between Suffolk County and LILCO which culminated in this RICO case has generated at least some 70 million dollars in legal fees and costs. It has been reported that through January, 1989, the County alone has contracted for more than 35 million dollars in legal and related costs — paid, of course, by Suffolk taxpayers — and doubtless LILCO has expended a similar amount. See Newsday, Feb. 21, 1989, at 7, col. 3, and 25, col. 1. The RICO ease itself has, according to Suffolk County, cost taxpayers some 7.5 million dollars in fees and at least that amount has probably been expended by LILCO. Certain of LILCO’s fees are passed on to ratepayers as business expenses. Further litigation will lead to many millions of dollars in added expenses, benefiting lawyers, to the detriment of taxpayers and ratepayers. 2. The Reaction of the Class to the Settlement. The court was impressed with the sincerity and good faith of those who communicated with the court. The beliefs of ratepayers who opposed as well as those who supported the settlement were deeply held. The sentiments of those who addressed the court were divided. Most of those who participated in the fairness hearings or who filed written submissions with the court expressed negative feelings about the settlement. This group was, however, but a minor fraction (much less than V10 of 1%) of the total class of ratepayers. The silence of the overwhelming majority does not necessarily indicate that the class as a whole supports the proposed settlement, but silence certainly cannot be equated with opposition. See Traffic Executive Ass’n— Eastern R.Rs. v. Long Island R.R., 627 F.2d 631, 634 (2d Cir.1980). As noted above, opposition to a class settlement — even by a majority of the class — is not a bar to court approval if the settlement is fair. Grant v. Bethlehem Steel Corp., 823 F.2d 20, 23 (2d Cir.1987). Even express opposition by more than half the class does not demonstrate that the settlement is unfair, nor that court approval should be withheld. TBK Partners, Ltd. v. Western Union Corp., 675 F.2d 456, 458 (2d Cir.1982). As the Second Circuit has explained, preventing a settlement that a district court properly determines to be fair and reasonable solely because of majority opposition “not only deprives other class members of the benefits of a manifestly fair settlement and subjects them to the uncertainties of litigation,. but ... [may] result[ ] in the eventual disappointment of the objecting class members as well.” Id. at 462-63. A “democratic vote,” suggested by one of the objectors at the fairness hearings, would be virtually impossible since the costs of ensuring that each member of the class fully understood the issues bearing on the settlement before voting would be prohibitive — particularly in view of the intense hostility of ratepayers toward LILCO. See In re “Agent Orange” Prod. Liab. Litig., 597 F.Supp. 740; Grant v. Bethlehem Steel Corp., 823 F.2d 20, 23 (2d Cir.1987). The court acts as a fiduciary to guard the rights of all class members. Percodani v. Riker-Maxson Corp., 50 F.R.D. 478, 478 (S.D.N.Y.1970), aff'd sub nom. Farber v. Riker-Maxson Corp., 442 F.2d 457 (2d Cir.1971). [T]he mere fact that the only class members expressing opinions regarding the settlement were a vocal minority opposing it does not alter the district court’s discretion in approving the settlement or its duty to protect the interests of the silent class majority.... We perceive no reason why a settlement cannot be considered fair despite opposition from all who responded when the responding class members were significantly less than half the class. Grant v. Bethlehem Steel Corp., 823 F.2d at 23-24. See also TBK Partners Ltd. v. Western Union Corp., 675 F.2d at 462. Many, if not most, of those objecting to the settlement'opposed it for reasons having no direct bearing on the reasonableness of the RICO suit agreement. Instead, the objections were grounded in other well-intentioned but legally irrelevant concerns. For example, most of those who communicated with the court had Shoreham’s closing on their minds. Information gleaned at the hearing as well as various public opinion polls, referred to below, make it clear that the majority of people in Nassau and Suffolk are opposed to the operation of the Shoreham Nuclear plant. Most understand that the closing of the plant might lead to higher rates and loss of taxes to Suffolk County, Brookhaven Township and local muncipalities in which the plant is located. They would prefer to shift as much of the cost of closing Shoreham as possible to LILCO and its shareholders. In their minds the RICO case and the Shoreham controversy are closely related and they see the RICO litigation as providing a mechanism for placing Shoreham’s costs on LILCO’s shareholders. Fear that Shoreham might open permeated the hearings. This issue is discussed at greater length below. Some of those who opposed the settlement did not understand why, once the jury had ruled, the court could set aside the verdict. It is likely their objection rested on the belief that the court had overturned the factual findings of the jury. That was not the case. The court’s dismissal of Suffolk’s claims rested on the legal theory that the RICO statute did not apply to the County's claims. See 710 F.Supp. 1387 (E.D.N.Y.1989). Questions of law such as these are solely the province of the court. Where, as here, novel and complex legal questions are involved, it is sound practice to provide a full development of the record, including decision by a jury, before ruling on the law. See, e.g., 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2725, p. 85 (“resolution of complex questions of law frequently requires a more concrete factual development than may be obtained through summary proceedings”); id., § 2732 (describing evolution of “notion that summary judgment may not be appropriate in complicated and important litigation”); Kennedy v. Silas Mason Co., 334 U.S. 249, 256, 68 S.Ct. 1031, 1034, 92 L.Ed. 1347 (1948) (“summary procedures, however salutory where issues are clear-cut and simple, present a treacherous record for deciding issues of farflung import, on which this Court should draw inferences with caution from complicated courses of legislation ... and practice”). This approach is especially encouraged where complex and important issues of a constitutional dimension are raised. See Felix v. Young, 536 F.2d 1126, 1135 (6th Cir.1976). The practice avoids the need for a retrial should there be a reversal on the law, and therefore rests in part on concerns of judicial economy and efficiency. This objection, although understandable from a layperson’s point of view, is untenable as a matter of law. Other objectors were interested in public ownership and operation of LILCO. They believed that forcing LILCO into bankruptcy might reduce the cost of purchase or condemnation of LILCO’s property. Any bankruptcy proceedings would be conducted in this court. It is not at all clear what the effect of bankruptcy would be since the bankruptcy judge might have power to raise rates immediately to make LILCO profitable. See, e.g., M.L. Wald, “Seabrook Utility in a Battle Over Who Regulates Rates,” N.Y. Times, Feb. 28, 1989, Business Section, p. 1, col. 1. Moreover, the PSC has firmly opposed the bankruptcy option. In its report supporting the Governor's proposed settlement, the staff of the PSC observed that “the chaos and uncertainty resulting from a bankruptcy ... compels rejection of bankruptcy as a viable alternative.” State of New York, Public Service Commission, Cases 29484 and 88-E-084, Staff’s Initial Brief Supporting the Settlement, August 9, 1988, at 9. In any event, attorneys, accountants, consultants and others would earn additional huge fees in any bankruptcy proceeding without a gain, and with the serious possibility of a loss in efficiency — all to the detriment of ratepayers and taxpayers. The fact that the settlement will probably result in a financially viable LILCO is not a basis for rejecting the settlement. The ability of the defendant to pay a judgment is a critical factor in settlement. As the Second Circuit has explained: Common sense seems to dictate the necessity, to say nothing of the propriety, of such a consideration.... According to the United States Supreme Court: “Further, the judge should form an educated estimate of ... the possible difficulties of collecting on any judgment which might be obtained, and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise.” Protective Committee v. Anderson, ... [390 U.S. 414, 424-25, 88 S.Ct. 1157, 1163-64, 20 L.Ed.2d 1 (1968).] City of Detroit v. Grinnell Corp., 495 F.2d at 467 (emphasis in original). See also City of Detroit v. Grinnell Corp., 356 F.Supp. 1380, 1389 (S.D.N.Y.1972), aff'd in part and rev’d in part, 495 F.2d 448 (2d Cir.1974) (“the prospect of a bankrupt judgment debtor at the end of the road does not satisfy anyone involved in the use of class action procedures”); Grunin v. International House of Pancakes, 513 F.2d at 119, 124-25; In re Federal Skywalk Cases, 97 F.R.D. 380, 387, 389 (W.D.Mo.1983). Most importantly, a large proportion of objectors had been leaders in the fight to block the opening of Shoreham. Some from the east end of Suffolk County objected to those they described as outsiders taking part in a struggle to which the leaders had devoted so much time and effort. Thus, derogatory remarks were made at the hearing in Hauppauge about “outsiders” participating in the litigation— including references to a judge from Brooklyn and an attorney for the class and mediator from New York — who could not be aware of the long struggle to close Shoreham. This devoted band which so passionately opposes nuclear power cannot control the resolution of this case when millions of people served by LILCO may have interests not necessarily congruent with theirs. Generals in a war are not necessarily those best able to make the decisions that are required if hopes for peace are to be realized. Many of those who objected compared the total settlement figure — 400 million dollars, including attorneys’ fees, payable over more than ten years — with the total possible judgment on behalf of the class — some 10 billion dollars — and found it wanting. This attitude is understandable but, as indicated below, it fails to take into account the probabilities of success and of collection. Given the risks of prevailing on appeal, and ultimately on the merits, the settlement providing for $390 million in rate reductions and refunds is well within the range of reasonableness. See In re “Agent Orange” Prod. Liab. Litig., 597 F.Supp. at 762; Flinn v. FMC Corp., 528 F.2d 1169, 1172-73 (4th Cir.1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976). Although this is not such a case, “[t[here is no reason, at least in theory, why a satisfactory settlement could not amount to a hundredth or even a thousandth part of a single percent of the potential recovery.” City of Detroit v. Grinnell Corp., 495 F.2d at 455 n. 2. See also TBK Partners Ltd. v. Western Union Corporation, 675 F.2d at 463-64; Parker v. Anderson, 667 F.2d at 1210 n. 6. The settlement fund is not as grossly disproportionate to the best possible recovery as some objectors suggested. The amount should be balanced against the potential actual damages possible with continued litigation, not against the trebled damages available under the provisions of RICO. As the Second Circuit noted, “there are strong reasons why trebling is improper when computing a base recovery figure which will be used to measure the adequacy of a settlement offer.” City of Detroit v. Grinnell Corp., 495 F.2d at 458. The Court of Appeals' reasoning in the Grin-nell case, an action for treble damages under the Clayton Act, applies with equal force to the instant case brought under RICO: [T]o argue that treble damages ought to be considered in a calculation of a base recovery range is to distort the entire theoretical foundation which underlies the settlement process. It requires defendants to admit their guilt for the purpose of settlement negotiations. One of the underlying premises on which such negotiations are based, however, is that defendants never have to concede their guilt_ To require ... defendants automatically to concede guilt at the outset of negotiations ... would upset the delicate settlement balance by giving too great an advantage to the claimants — an advantage that is not required by [the law] and on which might well hinder the highly favored practice of settlement. Id. at 459. Some of those who objected were bitter over LILCO’s alleged poor service to them and others over the years. They felt they had been abused and cheated by high rates. Almost no utility has the affection of all those it serves no matter how many advertising dollars are spent in an effort to portray the company as a warm and caring friend. Nevertheless, this antipathy to LILCO — based as it is on factors other than the RICO suit — cannot be permitted to carry the day for those who oppose settlement. Other objectors felt that LILCO could not be trusted to carry out the settlement. Some of them expressed a low opinion of the PSC and its ability to avoid being "captured” by the utility to the detriment of the class. There is, of course, always a possibility that the terms of the settlement will not be carried out. As indicated below, however, adequate steps have been taken to protect the class. A number of objectors, particularly the lawyers for various intervenors, were upset that they had not fully participated in settlement negotiations. Both the February 13 and February 15 orders make clear the legal basis for limiting intervenors’ participation in negotiations. Almost any major litigation of this kind, particularly one with strong emotional, political and important economic consequences, is settled only after private negotiations among the leading parties. Settlement of disputes could not in many instances take place without some private negotiations. The interests of those who have not participated in the negotiation process are protected by their right to be heard at public hearings after a tentative settlement is reached. Vulcan Society v. Fire Department, 20 E.P.D. (CCH) ¶ 30,131, 1979 WL 259 (S.D.N.Y.1979) illustrates this point. In a class action race-discrimination case, the trial judge denied a motion by intervenor unions to require other parties to allow the unions to participate in ongoing settlement negotiations. Denying the motion, the court recognized that (a) parties “cannot be prevented from negotiating on their own”; (b) “negotiations must be confidential to have any chance of succeeding”; (c) “inter-venors’ participation” would only tend to complicate the negotiations, both on substantive matters and in terms of management; and (d) “any rule that entitled inter-venors to participate in negotiations between the other parties to a litigation would ultimately act as a constraint on the right to intervene.” Because Vulcan Society, like this case, was a class action, the court recognized that “intervenors’ interests will be fully protected, since they will be entitled to object to any settlement ultimately proposed.” It has been contended by some that the schedule of fairness hearings gave class members insufficient time to analyze the settlement and prepare objections. Given the interrelation of the settlement discussions with other factors, such as ongoing “global” settlement hearings in Albany and licensing of Shoreham hearings in Washington, it cannot be said that this objection is well founded. What constitutes a reasonable time varies from case to case. The manner of giving notice and its timing are left to the discretion of the trial court by Rule 23(e). In re “Agent Orange” Prod. Liab. Litig., 597 F.Supp. at 759. In Grunin v. International House of Pancakes, 513 F.2d at 121, notice was given only nineteen days before the fairness hearing. Here, notice was ordered on February 15th, twenty-two days before the final fairness hearing at which members of the class could voice their objections, and the settlement and its terms were extensively reported in the press and other news media the day before. LILCO mailed individual notices concerning the settlement terms and hearing dates to its approximately one million customers over the period February 17 to February 21, 1989. Moreover, it is misleading to characterize the notice period as confined exclusively to those 22 days between formal court-ordered class notice and the final fairness hearing. While some intervenors were nowhere to be seen until shortly before the settlement notice went out to the class, other class members had been engaged in the ongoing litigation with LILCO for the previous two years. Such pre-notice participation is a “highly relevant” consideration in evaluating claims of violation of Rule 23 and the dictates of due process. Grunin v. International House of Pancakes, 513 F.2d at 121. A hearing was conducted at least once at each of the three courthouses in the district. All of those who wished to be heard were heard orally or in writing. The court stayed in session into the evening hours to enable those who worked to attend. Experts testified for and against the settlement and anyone was permitted to cross-examine them. The issues were fully briefed by the attorneys. The hearings were held after a two month trial where extensive evidence was introduced, full briefs were filed and many rulings of the court docketed. Extensive discussion in the press provided an unusual opportunity for those interested to become aware of the issues. Seldom has there been as extensive an opportunity to be heard at Rule 23 hearings. The argument that the hearings were inadequate is untenable. In considering the sequence of hearings it must be recognized that many other bodies and persons had given public indication that they were awaiting some action in the RICO suit with the hope that a “global” settlement could be reached, sealing the fate of Shoreham, providing some protection for ratepayers and LILCO, and furnishing a basis for a peaceful future in power generation and distribution on Long Island. As a practical matter, relevant events in Albany and elsewhere were dependent on the prompt resolution of the RICO suit. The Governor and LILCO were, simultaneously with the settlement negotiations in this case, arranging for Shoreham’s closing and deciding ratemak-ing issues. Aspects of the Governor’s activities implicated the PSC and other state agencies. See Exhibit 2 attached. The PSC itself was in the process of granting LILCO a temporary rate increase conditioned on the temporary closing of Shore-ham. The Nuclear Regulatory Commission (NRC) was about to license Shoreham for commercial power production. Simultaneously with the above state and national events, the Suffolk County legislature was itself concerned not only with the continuing issue of closing Shoreham but with settling a tax certiori suit against the town of Brookhaven for upwards of $500 million dollars — with an exposure to the County of a potential liability in the hundreds of millions of dollars — based on claims by LILCO that its real property taxes were too high. Reducing LILCO’s real estate taxes in Suffolk County means reduced expenses and rates to all ratepayers, including those in Nassau and Queens. Resolution of this tax certiorari suit in favor of LILCO may have a beneficial impact on ratepayers outside the county, whose interests may therefore be adverse to those of Suffolk County taxpayers. Given this congeries of issues, a prompt decision to settle the RICO suit was an essential prerequisite to overcoming paralysis in dealing with Shoreham and to disposing of a series of interrelated issues to the benefit of ratepayers, opponents of Shoreham, and taxpayers. A number of people support Shoreham’s opening. They opposed settling because termination of the RICO case might prevent the opening of Shoreham. Though a minority, this group believed that future power needs on Long Island would require Shoreham, particularly if the price of oil from overseas (where almost all of LILCO’s fuel originates) continues to rise. Some in this group were LILCO shareholders who were also ratepayers. Some businesses were apparently of this view, although they tended to oppose the settlement on less controversial procedural grounds. In short, much of the opposition to the settlement focused on private agendas independent of the merits of the RICO suit. This opposition cannot be dispositive. 3. The Stage of the Proceedings and the Amount of Discovery Completed. There has been a full trial after extensive discovery. LILCO and Suffolk County presented their information and arguments over a two month period. The transcript, including those at the fairness hearings, totalled over 7800 pages. Briefs and exhibits would almost fill a substantial room. There are well over 600 docket entries. It is unlikely that any significant information has been left unrevealed. 4. The Risks of Establishing Liability. This court’s memorandum and order, 710 F.Supp. 1387 (E.D.N.Y.1989), dismissing the complaint of Suffolk County, established that as a matter of law there is no basis for the class complaint. Stare decisis makes that decision the law of the case, binding on the class unless it is reversed on appeal. Even if the court’s decision that RICO does not apply to this rate-making dispute is overturned on appeal there are three other substantial bases for a dismissal of the action: First, the doctrine of primary jurisdiction mandates the deferral to the PSC of factual issues raised by Suffolk’s claims. Second, abstention doctrines require that the court not act; the court has determined that preemption does not overcome the doctrine of abstention. Cf. Note, The Preemption Dimension of Abstention, 89 Colum.L.Rev. 310 (1989). And, third, failures of proof require setting aside the jury’s verdict. Each of these grounds is substantial. They are adverted to in the court’s earlier oral and written decisions. In combination they substantially reduce the probability of success on appeal. 5. The Risks of Establishing Damages. The amount of damages could be readily extrapolated to the class were the verdict by Suffolk County against LILCO to be upheld. The class might be entitled to further damages were it to prevail on those claims not established by Suffolk County. They, too could be readily established by computation. 6. The Risks of Maintaining the Class Action at Trial. Were there a legal basis for the RICO claim, which there is not, the class could take advantage of the doctrine of collateral estoppel to rely on the case made by Suffolk County in its RICO trial. A further trial to establish the contentions lost by Suffolk County could then be sought by the class since it would not be bound by collateral estoppel, not having had a due process opportunity to establish its claims. This second phase trial would be before another jury, would last at least a month and would cost several million dollars in legal fees. Appeals would add to these fees. As noted in 4 above, the chances of success are poor. 7. The Ability of the Defendant to Withstand a Greater Judgment. The cost of the settlement to LILCO is approximately 400 million dollars payable over eleven years, or slightly over 200 million dollars in present value. During negotiations the PSC calculated that this is the maximum that can be paid by LILCO if it is to regain financial health. The hearings established that it was the PSC staff which provided this figure based on its expertise. The court finds this conclusion sufficiently established to warrant accepting it as a basis for the settlement. LILCO’s present equity is under 4 billion dollars. Damages to the class extrapolated from the first trial phase — the litigation by Suffolk County — are over 4 billion dollars. Maximum damages for the possible second phase trial by the class, when added to first phase damages, would be in the order 10 billion dollars. Full damages after either the first or second phase trials would bankrupt LILCO. It is not clear how much damages could be recovered during bankruptcy or what the cost to ratepayers of bankruptcy would be. As already indicated, it is not clear whether the Bankruptcy Court would fix rates and whether they would be higher than those fixed by the PSC. It appears likely that the benefits to the class upon bankruptcy would be considerably less than the maximum possible recovery under either trial phase one or two. Whether the class would receive any benefit at all or suffer a net detriment from a trial and bankruptcy is not clear. 8. The Range of Reasonableness of the Settlement Fund in the Light of the Best Possible Recovery. The best possible actual in-pocket recovery were the Suffolk County verdict to be upheld on appeal would, after several years of appeals and possible retrials, be in the order of billions of dollars. It should be recognized, however, that this sum would be offset by the higher interest charges paid by LILCO in the interim and the higher resulting electric rates and by the cost of probable bankruptcy. Given the various uncertainties, the best possible recovery, were the litigation to be fought in the courts to the bitter end, would probably be between several hundred million and under a billion dollars. 9. The Reasonableness of the Settlement Fund in the Light of the Attendant Risks of Litigation. This is the principal factor. It requires weighing the amount of the settlement against the merits of the plaintiffs case. Given the court’s conclusion that there is no substantial merit to the plaintiffs’ case, it is apparent that a $400 million dollar settlement is advantageous to the class. Since most members of the class are interested in 1) keeping electric rates at a minimum and 2) closing Shoreham, these two factors need to be separately considered, a. Minimizing Rate Increases It has already been noted that the credible experts agree that prompt settlement for the amount agreed upon will probably result in lower interest rates charged to LILCO and, therefore, a smaller cost to ratepayers than would otherwise be the case. Under PSC practice any increased cost of borrowing by LILCO while the litigation winds its way through the appellate courts will ultimately be paid by the ratepayers themselves. It is estimated that, because of rising interest rates, failure to resolve the Shoreham controversey last year has already added an additional $30 million a year — some 1.5 percent — to LILCO customers’ annual electric bills. Newsday, Feb. 21, 1989, at 7, col. 3. Keeping Shoreham open and other indirect costs of the litigation have been estimated at as high as one million dollars a day. Id. at 25, col. 1. That there is a substantial financial drain on LILCO and its ratepayers in continuing the litigation while the fate of Shoreham remains unresolved is clear. Settlement of the RICO case constitutes an essential first step before New York’s government in Albany can, as a practical matter, enact the tax and other rate relief measures and arrange for the added power sources needed to minimize future rate increases and provide reliable power. Thus, without a prompt settlement, it is unlikely that other governmental agencies can take appropriate actions to protect Long Island ratepayers. Testimony at the fairness hearings indicated that rates might actually be lower were Shoreham to close rather than open. While this is not a factor affecting the fairness of the settlement, it does suggest that closing Shoreham might not have an adverse effect on rates. b. Closing Shoreham Counsel for the representative plaintiffs and the plaintiffs themselves assert that they agreed to the settlement on the understanding that Shoreham be closed. This issue is central to the controversy. Undoubtedly the desire to prevent LILCO from opening Shoreham was a chief motive for Suffolk’s development of its RICO theory in this litigation. Various opinion polls as well as these fairness hearings and prior aspects of the litigation have demonstrated that the overwhelming majority of people in Nassau and Suffolk insist that Shoreham never open. See Newsday, July 3, 1988, at 30 (Gallup poll conducted June 21-26, 1988, indicated that 71% of Long Island residents oppose opening of Shoreham); K. Grossman, Power Crazy, at xi and fn. 14 (1986) (poll commissioned by Newsday in late 1985 showed that 77% of Suffolk County residents opposed opening of Shoreham). Residents have demonstrated that their fear of a possible atomic disaster at Shoreham, putting in jeopardy the lives of their families, is now so strong and settled that no arguments about cost or safety will dissuade them. In a democracy such as ours, when the people speak so decisively, government carries out the popular will — absent some challenge by the populace to fundamental constitutional rights such as free speech for minorities. In a few years when power and fuel are short and pollution by fossil fuels an even greater problem than it is today, many will rue the day that Shoreham was torn down. But today’s decisions must be made on the basis of current fears and calculations, not hindsight. Shoreham is dead. Those who refuse to acknowledge the obvious only make it more difficult to bury the controversy and get on with life. This nuclear plant, in all its technical glory, will be torn down because the people will it. To paraphase Shakespeare’s words, mouthed by Hamlet: “Imperious Shore-ham, dead and turned to clay, Might stop a hole to keep the wind away.” An equally mordant, but perhaps more apocalyptic vision applicable to Shoreham, is that of Shelley in the well known Ozymandias: I met a traveler from an antique land Who said: “Two vast and trunkless legs of stone Stand in the desert. Near them, on the sand, Half sunk, a shattered visage lies...." “My name is Ozymandias, king of kings: Look on my works, ye Mighty, and despair!” Nothing beside remains. Round the decay Of that colossal wreck, boundless and bare, The lone and level sands stretch far away. As the trial and hearings demonstrated, Shoreham was built at the urging of many who now insist on its destruction. When the idea for Shoreham was conceived in the late 1960’s and early 1970’s, there was widespread support in Albany and Long Island for an atomic energy plant on Long Island. Among the strongest supporters were the officials of Suffolk County. Reliance by Long Island on imported oil for its electric generators made Long Island particularly vulnerable to escalating costs as Mideast oil jumped in price. Nuclear energy was deemed a panacea. The PSC, the NRC and other agencies, and elected officials in Albany and Long Island all encouraged LILCO to build Shoreham. LILCO borrowed billions of dollars to satisfy that request. Technical problems steadily increased the cost of the plant and delayed completion. With time, the risks attendant on nuclear incidents and the ultimate costs and risks of disposal of the plant and its spent fuel soured many former proponents. The Three Mile Island nuclear incident led to much stricter NRC standards, requiring the redesigning and rebuilding of portions of the plant at ever-increasing costs. Chernobyl and the scandal of unsafe conditions at plants manufacturing nuclear bomb components added to a growing revulsion against nuclear power on Long Island. The geographical configuration of the island presented much more difficult problems of evacuation in case of a nuclear accident than exist in inland areas where evacuation can take place in four directions rather than in one — to the west. By the early 1980's Suffolk County had decided to oppose Shoreham. Together with allies in Albany and the support of growing numbers of people living on Long Island, it has effectively blocked Shore-ham’s opening. Despite the fact that the plant has been ready for operation for some years and that it is reputedly one of the safest nuclear plants in the world, it has never produced power in commercial amounts. In short, while Shoreham was built largely with the support of government at every level and with at least the acquiescence of the majority of Long Island residents, those who encouraged the building have changed their minds. Obviously, LILCO shareholders must, in our capitalist society, bear much of the risk and cost of this change in attitude that makes Shoreham unusable. Some of that price has been paid in sharp drops in the price of LILCO’s securities and missed dividend payments. Much of the cost has already been paid by the average stockholders — many of whom were people of modest means saving for retirement — in loss of value and dividends. It is an anomoly that speculators who bought up the stock at low prices will probably make maximum gains when necessary financial health is restored to LILCO. This kind of unfairness started with our nation’s birth when speculators bought up soldiers’ paper pay and then made fortunes after Hamilton put federal finances on a stable basis and redeemed the Confederation’s pledges. R. Severo & L. Milford, The Wages of War 36-38, 53-55 (1989). It does not make the settlement less desireable to ratepayers. Putting LILCO’s finances on a stable footing is, the PSC has emphazied, essential to permit refinancing of LILCO’s debt at reasonable interest rates that ultimately will be embodied in electric rates. Rate-making is not for the court, nor for Suffolk County. It is entrusted to the PSC which must assume responsibility for arranging an appropriate balance of costs to be paid by LILCO, the state government, local government and ratepayers. In the negotiations attempting to settle the Shoreham dispute in its broad implications, elected officials have been reluctant to accept responsibility for accomplishing the closing of Shoreham with concomittant future higher electric rates. The Governor of the State of New York, almost alone among elected officials, has forthrightly addressed the problem and taken responsibility, with the assistance of other government agencies, for developing an integrated plan for closing Shoreham. See Exhibit 2; Public Service Commission, Cases 29484 and 88-E-084, Staff’s Initial Brief Supporting the Settlement, August 9, 1988. The Governor first sought the political support of the legislatures in Albany and in Suffolk before committing the state to the “global” settlement that was required to ensure closing Shoreham. It was not forthcoming. While insisting on the closing of Shoreham, the Suffolk County legislature has not been willing to accept responsibility for resulting higher electric rates. Somewhat the same view has prevailed among the legislative leaders in Albany. The result has been a stalemate and increasing future costs to ratepayers. This gridlock has now been resolved by a number of developments making it clear that Shoreham will not open. They are: 1) The RICO case has settled and by this memorandum and order it is approved as fair. The RICO case is for all practical purposes, as dead as Shoreham. The assumption of the court and the class is that Shoreham will never open. 2) On February 28, the day before the fairness hearings were to begin, the Governor and LILCO entered into an agreement to close Shoreham. See Exhibit 2. Subsequently, legislative leaders in Albany reportedly indicated general satisfaction with this agreement. While the agreement is subject to the approval of LILCO’s Board of Directors and shareholders, the PSC and other state agencies, these approvals are so highly likely, given present political and economic pressures, that Shoreham’s closing can be considered a fait accompli. 3) The PSC has accepted responsibility for declaring Shoreham closed. It clearly signaled this decision when it conditioned a temporary increase in rates on the requirement that Shoreham not be operated. See Public Service Commission, Order Authorizing Temporary Rates, Cases 29484 and 88-E-084, Issued and Effective Feb. 16, 1989. In view of the Governor’s position, it can confidently be expected that any future rate increases will be similarly conditioned on the permanent closing of Shore-ham. 4) LILCO, by accepting the rates described in 3), has effectively accepted the Governor’s condition of keeping Shoreham closed. It cannot, as a practical matter, open Shoreham during the period the temporary rates described in 3) are in effect. It is understood that LILCO will continue to apply for a license and may even bring court proceedings to cancel the condition described in 3). Such efforts are for the record and to preserve a negotiating position. Since LILCO is not viable economically without PSC rate increases, it must comply with the PSC’s condition that Shoreham not be operated. Failure to comply will mean revocation of the rate increases and LILCO’s bankruptcy. 5) Arrangements have been approved by the New York Power Authority to build an electric cable under Long Island Sound to tie LILCO’s distribution system into the state’s power grid, which extends upstate and into Canada, to take advantage of cheaper and cleaner hydroelectric power. This development, the building of local peaking power plants and severe conservation measures may moderate rising rates and ensure adequate peak power resources in the future. Dangers continue to exist, however, since citizens in many areas appear unwilling to accept the building in their own “backyards” of the local peaking power plants needed