News from Attorney General Eric T. Schneiderman

November 21, 2016

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NEW YORK – Attorney General Eric T. Schneiderman issued the following statement  on today’s decision by the New York Court of Appeals affirming the requirement that the consistency of relicensing the Indian Point nuclear power facility with State policies protecting the Hudson River Coastal Zone and its resources be addressed as part of considering  whether to relicense the facility to operate for an additional 20 years: 

“Today’s decision represents a major victory for the continued health and productivity of our state’s environment. 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 Attorney General 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 Attorney General 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.