Big Setback for Indian Point Relicensing: NY Court of Appeals Ruling

CORTLANDT, NY — The New York State Court of Appeals has ruled that the state has the right to review Entergy's applications to renew Indian Point's operating licenses to to ensure they are consistent with New York’s Coastal Management Plan.

It's a huge setback for the company, because state officials have already denied coastal consistency certification for Entergy’s relicensing application to the Nuclear Regulatory Commission.

Reversing the state Appellate Court's reversal of a state Supreme Court decision, the Court of Appeals ruled unanimously that the New York Department of State was correct regarding its determination that it has the right to review the federal license renewal applications as they pertain to state policies protecting the Hudson River Coastal Zone and its resources.

Entergy, which is before the Nuclear Regulatory Commission for permission to operate for an additional 20 years, issued the following statement:

Entergy is reviewing the court’s decision to determine its next steps, which could include refiling its Coastal Zone Management application that Entergy previously withdrew pending issuance of the NRC’s Final Supplemental Environmental Impact Statement. Notwithstanding today’s court decision, we continue to believe we will ultimately be successful in obtaining a CZM permit and relicensing Indian Point. The facility continues to safely operate in a manner that is fully protective of the Hudson River and in compliance with state and federal law.

Consistency certification is an essential part of the relicensing process.

Entergy filed an application for certification by the State in 2012, but then argued that Indian Point was “grandfathered” out of needing a coastal consistency finding. In 2014, a NYS appellate court ruled that the plant was grandfathered in under the Coastal Management Plan and need not obtain the certification. That decision was appealed to the State’s highest court — the NYS Court of Appeals.

The State Department issued a formal objection in 2015, saying the renewal of the operating licenses for Units 2 and 3 would not comply with large chunks of the CMP. Secretary of State Cesar Perales wrote to Entergy, ”the NRC is prohibited from relicensing the Indian Point facilities unless this objection is overruled by the U.S. Secretary of Commerce.”

SEE: NY Objects to Indian Point Operation, Relicensing

When the issue went to court, environmental activist group Riverkeeper was granted permission to intervene as amicus curiae and filed a brief supporting the DOS.

Riverkeeper President Paul Gallay issued a statement regarding the ruling:

This is a monumental day. This decision effectively stops the Nuclear Regulatory Commission from re-licensing Indian Point.
The Coastal Zone Management Act gives the New York Secretary of State the authority to refuse certification of any project that significantly impacts river resources. In late 2015, the Secretary of State ruled that Indian Point was inconsistent with over a dozen policies designed to protect the Hudson River and its surrounding communities.
The New York State Court of Appeals ruling reinstates the decision by the Secretary of State, which refused to provide coastal zone approval. Without that coastal zone approval, the Nuclear Regulatory Commission cannot relicense Indian Point. It is a complete stopper.
Indian Point is not needed to provide energy to the New York Metropolitan Area. It is not safe to continue operating. And this ruling effectively bars federal relicensing of Indian Point. It’s time to close Indian Point and take advantage of the safe, sustainable energy future that awaits New York.”

Gov. Andrew Cuomo has been trying for years to close the nuclear plant.

SEE: NY Doubles Down on Indian Point Opposition

Today’s decision represents a major victory for the continued health and productivity of our state’s environment," said Attorney General Eric T. Schneiderman. "Among our most important laws are those that protect sensitive ecosystems, including New York’s lower Hudson River and its natural resources. The court has now made it clear that policies protecting New York’s critical coastal resources are a necessary factor in considering whether to relicense the Indian Point facility."

The New York State Department of State is designated by the State under the federal Coastal Zone Management Act (CZMA) to coordinate regulation of the State’s coastal zone. Under the CZMA and the State's Coastal Zone Management Program, federal agencies can issue permits for activities affecting the coastal zones only if they are certified to be consistent with the affected state’s coastal zone program. The “federal consistency” issue affects the federal Nuclear Regulatory Commission’s consideration of the application by Entergy, the owner of the Indian Point nuclear energy facility, for an additional 20-year renewal of the facility’s operating license.

Entergy sued claiming that the State’s coastal zone program exempted the facility from review under certain “grandfathering” provisions in the program. In December 2013, the Supreme Court in Albany County dismissed Entergy’s lawsuit. But in December 2014 the Appellate Division reversed that decision and held that the project at Indian Point was exempt from coastal consistency review under an exemption in the coastal management program. Today’s decision by the State Court of Appeals reverses the Appellate Division’s ruling and holds that the current relicensing application requires state review for consistency with New York’s coastal zone policies.

Today, the Court of Appeals agreed with Schneiderman's office and rejected Entergy’s claim that the Indian Point facility was “grandfathered” from coastal zone review. The Court determined that neither the CZMA nor the State’s program exempted relicensing for extended operations of nuclear power plants from coastal zone consistency review. The Court agreed with Schneiderman's position that Entergy’s license renewal application is subject to the consistency review process.

In November 2015, the NY Department of State denied a coastal consistency certification for Entergy’s relicensing application to the Nuclear Regulatory Commission. The Department determined that Entergy’s relicensing application did not comply with New York’s federally-approved Coastal Management Program, particularly with respect to protections for coastal ecosystems, fish and wildlife resources and habitats.

The case was handled by Solicitor General Barbara D. Underwood, Deputy Solicitor General Andrew D. Bing, Assistant Solicitor General Frederick A. Brodie, and Deputy Bureau Chief of the Environmental Protection Bureau Lisa M. Burianek.