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Entergy Tells New York to Butt Out of Nuke Plant


Entergy, which runs two nuclear power plants that supply nearly a quarter of metropolitan New York’s electricity, asked a judge to tell the state to butt out of the plants’ relicensing process.

Entergy Nuclear Operations sued the New York Department of State in Albany County Supreme Court.

Entergy claims its request to the Nuclear Regulatory Commission to extend the operating licenses of the Indian Point 2 and 3 plants is exempt from state review.

Entergy is embroiled in similar lawsuits for its Vermont Yankee nuclear plant in southern Vermont.

In both states, Entergy claims only the NRC, a federal agency, not a state, may regulate safety concerns of the nuclear power industry.

In its new complaint in Albany, Entergy claims New York State “threatens imminent harm to Entergy by subjecting it to a burdensome and time-consuming regulatory process with an uncertain outcome.”

The complaint continues: “An adverse determination by [New York] on Entergy’s consistency certification would inflict devastating and irreparable injury on Entergy, its shareholders, and the millions of individuals and businesses that rely on power generated by IP2 and IP3” – the Indian Point plants.

Entergy Nuclear is a unit of Louisiana-based Entergy Corp., a Fortune 500 company with more than $10 billion in annual revenue.

Entergy Nuclear owns 11 nuclear power plants, and provides management services to a 12th, that together produced 87.8 million megawatt hours in 2011, according to the company’s website.

It has plants in eight states, including Indian Point 2 and 3 in Buchanan, N.Y., on the east bank of the Hudson River about 35 miles north of New York City. The two units supply more than 2,000 megawatts of electricity to customers in the Big Apple, Long Island and the lower Hudson Valley.

The Indian Point plants were built in the 1960s by Consolidated Edison New York, and began producing power in the 1970s. Entergy Nuclear acquired them in 2000 and 2001.

The plants’ proximity to densely populated New York City, and to a seismic fault line, have raised concerns over the years, especially after the 2011 earthquake and tsunami in Japan that led to the meltdown of reactors at the Fukushima Daiichi nuclear power complex.

Gov. Andrew Cuomo has said repeatedly that he wants the Indian Point plants shut down. He recently asked state energy officials to find alternatives to the power the plants produce.

Entergy Nuclear submitted an application to the Nuclear Regulatory Commission in 2007 for a 20-year extension of the plants’ operating licenses. The Indian Point 2 license is set to expire this year; the license for Indian Point 3 in 2015.

Last summer, the company says in its complaint, it supplemented the application with a letter stating that the plants are not subject to further review under New York’s Coastal Management Program “because both units have been previously reviewed by New York for consistency with the CMP, and the renewal of their licenses will not result in coastal effects that are substantially different than those New York previously reviewed.”

The Coastal Management Program is overseen by New York’s Department of State. It originated in 1982 in response to a federal grants program under the U.S. Coastal Zone Management Act to help states balance economic development and environmental conservation in coastal regions.

In setting up the program, New York included two “grandfathering” provisions so that “projects for which a substantial amount of time, money and effort have been expended” would not be subject to further review, according to the complaint.

When Entergy subsequently petitioned the New York Department of State for a ruling backing up its contention that Indian Point plants were grandfathered under the program “and therefore exempt from procedures requiring review of federal licensing activities for consistency with the CMP’s enforceable policies,” it was turned down.

According to the complaint, New York determined that the license extensions were “material changes” in the plants that negated the grandfathering provisions.

Entergy wants the court to set aside that decision by New York Secretary of State Cesar Perales as arbitrary and capricious and rule that the plants are not subject to review.

The company is represented by Andrew Rose of Nixon Peabody in Albany.

Bobby Burchfield, Matthew Leland and Thomas Tynan of McDermott Will & Emery in Washington, D.C., seek permission to appear pro hac vice for Entergy.

A federal judge in Vermont agreed with Entergy’s claim that only the federal government, not the state, could regulate the safety of the aging Vermont Yankee nuclear plant. Safety issues bear directly upon the extension of its operating license. Vermont appealed to the 2nd Circuit, which heard arguments in January.