The Matter of Entergy Nuclear Operations v. New York State Department of State ( 2016 )

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 179
In the Matter of Entergy Nuclear
Operations, Inc., et al.,
Respondents,
v.
New York State Department of
State et al.,
Appellants.
Barbara D. Underwood, for appellants.
Kathleen M. Sullivan, for respondents.
Riverkeeper, Inc. et al.; African American
Environmentalist Association et al.; Nuclear Energy Institute;
Chamber of Commerce of the United States of America et al.;
Emily Hammond; Kevin S. Parker et al., amici curiae.
ABDUS-SALAAM, J.:
The issue presented is whether Entergy's pending
application to renew its federal operating licenses for the
Indian Point nuclear reactors on the Hudson River in Westchester
County, for an additional 20 years, is subject to review by the
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New York State Department of State for consistency with the
policies of New York's Coastal Management Program (CMP). The
Department of State, interpreting the CMP, which it authored,
concluded that the renewal application did not fit within the
CMP's grandfather exemptions and that Entergy's application is
therefore subject to review. An agency's interpretation of its
own plan or regulation "is deferentially reviewed by the courts
to determine whether there is a rational basis for the decision
and, if so, [the agency's] conclusion must be upheld" (Matter of
Terrace Court, LLC v NYS DHCR, 18 NY3d 446, 454 [2012]). We
conclude that the Department of State's determination is
rational, and accordingly, the Appellate Division order holding
that Indian Point is exempt from review should be reversed.
I.
Background
Entergy's Indian Point nuclear facility has two active
nuclear reactors, Indian Point 2 and Indian Point 3.1 The
Nuclear Regulatory Commission's (NRC) predecessor, the Atomic
Energy Commission, issued 40-year operating licenses for Indian
Point 2 in 1973 and Indian Point 3 in 1975, when Consolidated
Edison owned all three reactors. The agency now known as the New
York Power Authority acquired the licensed and partially-
completed Indian Point 3 from Consolidated Edison in 1975.
Entergy bought Indian Point 3 from the Power Authority in 2000
1
Indian Point 1 ceased generating electricity in 1974.
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and acquired Indian Point 2 in 2001. Entergy continues to
operate the reactors under the original 40-year licenses in
accordance with federal law (see 5 USC § 558; 10 CFR § 2.109).
Federal law limits the term of a initial operating
license to a maximum of 40 years (see 42 USC § 2133 [c]). In
1995, the NRC adopted its current "Part 54" regulations,
authorizing the re-licensing of nuclear reactors for up to 20
years beyond the original term (see 10 CFR § 54.31 [b]). A
renewed operating license supersedes the original license (see 10
CFR § 54.31 [c]). An application for a license to operate a
nuclear facility requires the NRC to produce a final
environmental impact statement, and an application for a re-
license requires a supplemental site-specific environmental
impact statement, which is in addition to the 2013 Generic
Environmental Impact Statement for License Renewal of Nuclear
Plants (see 10 CFR § 51.20 [b][2]; Pt 5, Subpt A, App B).2 The
applicant is required to submit an environmental report to the
NRC and to identify other necessary environmental permits and
approvals (10 CFR §§ 51.45, 51.53 [c]).
Congress adopted the Coastal Zone Management Act (the
Act) in 1972, to encourage the states to protect their coastal
resources, with an aim "to preserve, protect, develop, and where
possible, to restore or enhance, the resources of the Nation's
2
Reactor License Renewal
http://www.nrc.gov/reactors/operating/licensing/renewal/overview.
html, accessed Oct. 31, 2016.
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coastal zone for this and succeeding generations" (16 USC § 1452[1]). The Act states that "[t]he key to more effective
protection and use of the land and water resources of the coastal
zone is to encourage the states to exercise their full authority"
over coastal lands and waters by adopting coastal management
programs of their own. It provides that a coastal state can
choose to draft a CMP, which is a "comprehensive statement . . .
setting forth objectives, policies, and standards to guide public
and private uses of lands and waters in the coastal zone" (16 USC
§ 1453 [12]). Upon completion, the state then submits the CMP to
the United States Secretary of Commerce for authorization (see 16
USC § 1454).
The Act mandates that once the Secretary has approved a
state's management program,
"any applicant for a required [f]ederal
license . . . affecting any land or water use
or natural resource of the coastal zone of
that state shall provide in the application
to the licensing . . . agency a certification
that the proposed activity complies with the
enforceable policies of the state's approved
program and that such activity will be
conducted in a manner consistent with the
program" (16 USC § 1456 [c][3][A]).
Within six months of submission, the affected state must concur
or object to the certification. Further, the Act provides that
"[n]o license or permit shall be granted by the [relevant]
federal agency" until the state or its designated agency has
concurred with the certification, is deemed to have done so, or
the Secretary overrides the State's objection (16 USC § 1456-4-
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[c][3][A]). Federal regulations under the Act require
consistency review of renewal applications for federal licenses
that affect any coastal use or resource where the activities were
not previously reviewed by the designated state agency, where the
activities are subject to new management changes, or where the
renewal will cause an effect substantially different from those
the state agency originally reviewed (see 15 CFR §§ 930.51[b][1]-
[3]). The Act does not grant any exemptions or exceptions to the
consistency requirement.
In 1982, New York adopted a CMP.3 The Department of
State took the lead in preparing the CMP and administers it. The
United States Secretary of Commerce approved the CMP and it
became effective on September 30, 1982 (see 47 Fed Reg 47056-02
[1982]). The CMP sets forth 44 enforceable statewide policies
relating to coastal activities against which federal license
renewals and other federal actions affecting coastal resources
must be assessed. State actions are also subject to review, but
that review is not conducted by the Department of State but by
the state agency proposing to take the action in accordance with
the regulations promulgated by the Department (see 19 NYCRR §§
600.21. 600.3, 600.4; Executive Law § 919). The CMP's statewide
policies include protecting fish and wildlife resources;
3
New York State Coastal Management Program and Final
Environmental Impact Statement
http://www.dos.ny.gov/opd/programs/pdfs/NY_CMP.pdf, accessed Oct.
25, 2016.
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preventing or minimizing damage from flooding or erosion; meeting
public energy needs in an environmentally safe manner; and
controlling air and water pollution.
New York has designated its Department of State to
review federal agency actions to ensure consistency with the 44
coastal policies set forth in the CMP. The Department conducts a
federal consistency review of a proposed federal license
application pursuant to the federally approved CMP (see 15 CFR §
930.11 [h]). The CMP lists the issuance of an operating license
for a nuclear facility as a reviewable activity that requires the
applicant to submit a federal consistency certification to the
Department. This requirement also expressly applies to renewals
of federal licenses.
Certain projects are exempt from the CMP's consistency
requirement:
"The projects which meet one of the following
two criteria have been determined to [b]e
projects for which a substantial amount of
time, money and effort have been expended,
and will not be subject to New York State's
[CMP] and therefore will not be subject to
review pursuant to the Federal consistency
procedures of the Federal Zone Management Act
of 1972, as amended: (1) those projects
identified as grandfathered pursuant to [the]
State Environmental Quality Review Act
(SEQRA) at the time of its enactment in 1976;
and (2) those projects for which a final
Environmental Impact Statement has been
prepared prior to the effective date of the
Department of State Part 600 regulations [see
Appendix A, DOS Consistency Regulations,
NYCRR Title 19, Part 600, 6600.3 (4)]. If an
applicant needs assistance to determine if
its proposed action meets one of these two
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criteria, the applicant should contact the
Department of State" (CMP, Section 9).4
The license for Indian Point 2 expired in September 2013 and the
license for Indian Point 3 expired in December 2015. In 2007,
Entergy applied to the NRC for a 20-year renewal of both
operating licenses, and initially took the position with the NRC
that its application was subject to the Department of State's
federal consistency review under the CMP. However, in 2012,
Entergy changed its position and sought a ruling from the NRC
that its re-licensing application was not subject to the
Department's review for consistency with the CMP. The State of
New York opposed Entergy’s request and cross-moved for a
declaratory ruling that consistency review was required.5 The
NRC staff recommended that Entergy’s motion be denied because
consistency review issues should be resolved by the Department of
State in the first instance. On June 12, 2013, the NRC’s Atomic
Safety and Licensing Board ruled that Entergy’s motion and New
York’s cross-motion were premature because the New York
4
As noted by the Appellate Division, the provision contains
a typographical error in the original text, and the parties
concur that the reference to section 6600.3 (4) is intended to
refer to 19 NYCRR 600.3 (4), which is now codified at 19 NYCRR §
600.3 (d).
5
See State of New York Response to Entergy’s Request to
The Atomic Safety and Licensing Board for a Declaratory Order
Concerning Coastal Zone Management Act Issues and Cross-motion
for Declaratory Order
http://pbadupws.nrc.gov/docs/ML1309/ML13095A481.pdf, accessed
Oct. 25, 2016.
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Department of State and the NRC staff had not yet consulted.6
Entergy subsequently sought a declaratory ruling from
the Department of State as to whether its license renewal
application was exempt from the CMP's consistency requirement.
It argued that the license renewals were not subject to
consistency review because, with respect to the first exemption,
Indian Point 2 and 3 were grandfathered under SEQRA (see ECL art
8; ECL § 8-0111[5][a]) at the time of its enactment in 1976, and
with respect to the second exemption, the facilities' final
environmental impact statements were adopted before the effective
date of the Department of State regulations referenced in that
exemption.
The Department of State determined that Entergy's
application to extend its operating licenses for 20 years was not
exempt from consistency review under the CMP. Entergy then
commenced this hybrid CPLR article 78 proceeding/declaratory
judgment action seeking to annul the Department's determination
and requesting a declaratory judgment that the Indian Point
nuclear reactors are not subject to the CMP. Supreme Court,
among other things, upheld as rational the Department's
determination that neither exemption in the CMP applied, and
dismissed the proceeding (42 Misc 3d 897 [2013][Sup Ct, Albany
6
See In the Matter of Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Units 2 and 3)
http://pbadupws.nrc.gov/docs/ML1316/ML13163A233.pdf. accessed
Oct. 25, 2016.
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County]). The Appellate Division reversed, holding that Indian
Point fit within the second of the two exemptions listed in the
CMP (125 AD3d 21 [3d Dept 2014]). The Appellate Division did not
address whether Indian Point had also met the criteria of the
first listed exemption. We granted the Department of State
appellants' motion for leave to appeal (25 NY3d 908 [2015]).7
II.
The Exemptions
In considering the Department of State's interpretation
of the exemptions set forth in the CMP, we are mindful of well-
established principles that we recently reiterated and applied in
Matter of Natural Resources Defense Council, Inc. v New York
State Dept. of Envtl. Conservation (25 NY3d 373 [2015]). "[T]he
construction given statutes and regulations by the agency
responsible for their administration, if not irrational or
unreasonable, should be upheld" and "this Court treads gently in
second-guessing the experience and expertise of state agencies
charged with administering statutes and regulations" (id. at 397
[internal citations and quotation marks omitted]). While the CMP
is not a statute or regulation, it is a program authored and
administered by the Department of State, and approved by the
United States Secretary of Commerce, that sets forth enforceable
7
By determination dated November 6, 2015, the Department of
State completed its consistency review and objected to Entergy's
certification of consistency with the CMP. That determination is
not before us.
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statewide policies. As such, the Department's interpretation of
that program is entitled to deference.
Regarding the first exemption, for "those projects
identified as grandfathered pursuant to State Environmental
Quality Review Act [SEQRA] at the time of its enactment in 1976,"
Entergy contended before the Department of State that Indian
Point 2 and 3 were identified as grandfathered pursuant to SEQRA
at the time of its enactment. In response, the Department
reasoned that the exemption was not automatic, that the relevant
agency had to expressly identify the specific project as being
exempt from SEQRA, and that the exemption from consistency was
not coextensive with the SEQRA grandfathering provision. It
looked to the "grandfathered projects lists," established
pursuant to SEQRA, in which each state agency provided "the
director of the budget [with] a list of projects such agency
deem[ed] to have been approved" for the purposes of exempting
those projects from SEQRA, even though the project was approved
prior to SEQRA's effective date (see L 1976, ch 228, § 5). Indian
Point 2 was never on such a list. Thus, the Department concluded
that it did not qualify for the first exemption. Regarding
Indian Point 3, the Department noted that, in 1978, the New York
Power Authority had included Indian Point 3 on such a list.
Nevertheless, the Department concluded that this listing did not
exempt the current re-licensing application as the 1978 listing
was limited to construction of certain facilities and acquisition
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of certain real property and easements, none of which referred to
the operation of Indian Point 3.
Supreme Court correctly determined that the Department
of State's interpretation of the first exemption is rational and
should be upheld. The Department takes the position that the
phrase "identified as grandfathered" must have some meaning
beyond simply referencing SEQRA, or the exemption would have just
said "grandfathered under SEQRA." The word "identified" is
reasonably interpreted by the Department as implying an
affirmative step, such as the placing on a list. Furthermore,
the CMP exemption refers to SEQRA legislation that was enacted in
1976, and as noted by the Department, the 1976 SEQRA legislation
specifically directed state agencies to create a list of projects
deemed approved and not subject to SEQRA (see L 1976, ch 228, §
5), whereas the more general grandfathering provision that
Entergy would have us apply was adopted in the original SEQRA
legislation in 1975 (see L 1975, ch 621). Thus, the Department
of State's interpretation of the first exemption -- unlike
Entergy's -- gives effect to the plain language of the exemption,
and we uphold the Department's conclusion that the first
exemption is inapplicable to Indian Point.
The second exemption applies to "those projects for
which a final environmental impact statement has been prepared
prior to the effective date of the Department of State part 600
regulations," with a reference to Part 600 and Part 600.3(d).
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The Department determined that this exemption must be understood
as exempting projects for which a SEQRA environmental impact
statement had been prepared, and projects which pre-existed, but
would have otherwise been subject to, the part 600 regulations on
their effective date. Context is important when considering this
exemption. The Part 600 regulations referenced in the bracketed
language of the second exemption relate only to state agencies'
consistency review of their own actions and apply only to actions
undertaken by state agencies. Thus, because the licensing of
Indian Point did not involve a state agency reviewing its own
actions, the Department of State rationally concluded that this
exemption does not apply.
Additionally, the Department reasoned that the second
CMP exemption directly references, and must be read in the
context of 19 NYCRR § 600.3 (4), which expressly references final
environmental impact statements prepared pursuant to SEQRA. The
Department explains that when it created the exemption, it was
solving a transition problem. State actions are subject to
review for consistency with the CMP, but that review -- known as
"state consistency review" -- is conducted not by the Department
of State but by the state agency proposing to take the action, in
accordance with regulations promulgated by the Department. The
exemption ensured that projects on which state agencies had
invested time, effort, and resources in the preparation of a
state environmental impact statement would not thereafter be
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required to undergo a consistency review. Stated differently, it
exempted from consistency review only projects that had been
subject to review under SEQRA but had not been subject to review
for consistency with the state’s coastal policies because the
Part 600 regulations had not taken effect. There is no exemption
for projects subject to federal environmental impact statements.
Indeed, the plain language of the exemption implies that the
reason for the second exemption was that the Part 600 regulations
were not yet available for use.
In light of this language, it was rational for the
Department of State to reject Entergy's argument that final
environmental impact statements pursuant to the National
Environmental Policy Act (NEPA) would satisfy this exemption, and
that statements prepared under SEQRA are not required. In this
appeal, Entergy, citing 6 NYCRR part 617, points out that SEQRA
permits the use of final environmental impact statements prepared
under NEPA. However, the Department of State rationally
concluded that a federal environmental impact statement issued
under NEPA before 1976 is not contemplated by the second
exemption because the purpose of the exemption was to ensure that
projects on which state agencies had invested time, effort, and
resources in the preparation of a state environmental impact
statement would not thereafter be required to undergo a
consistency review.8
8
It is also worth noting that a federal environmental impact
statement does not necessarily or automatically satisfy SEQRA, as
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The Appellate Division rejected as irrational the
Department of State's position that the final environmental
impact statements must have been prepared pursuant to SEQRA. The
court was persuaded by Entergy's argument that SEQRA permits the
use of final environmental impact statements prepared under NEPA
and that there is no indication that the final environmental
impact statements prepared for Indian Point 2 and 3 would not
have complied with SEQRA. But the fact that SEQRA permits the
use of a statement prepared under NEPA misses the point. The
Department's interpretation is rational given the references to
the Part 600 regulations in the bracketed language of the second
exemption and the explained purpose of the exemption; those
regulations relate only to state agencies' review of their own
actions and apply only to actions undertaken by State agencies.
In other words, it is the context of Part 600, and not the
definition of an environmental impact statement in Part 617, that
matters. When considered in context, the language of the
exemption is tied to the Department's intent in drafting the
exemption.
Entergy also argues that, if the second exemption is
interpreted as the Department of State contends, then the
exemption never applied to anything, and is essentially a null
set. However, the exemption did apply to something, but it only
the regulation obviates the need for a SEQRA environmental impact
statement only insofar as a federal environmental impact
statement "is sufficient to make findings" under the SEQRA
regulations (6 NYCRR § 617.15).
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applied to projects by state agencies that were in progress as of
the effective date of the CMP regulations and that, without the
exemption, would have been subject to CMP review.9
Finally, aside from Department of State's
interpretation of the specific language of the exemptions, it is
plain that these narrow exemptions for projects that had final
environmental impact statements completed prior to the adoption
of the CMP do not apply to re-licensing. Entergy's current
application for a license to operate the Indian Point nuclear
reactors for an additional 20 years is a new federal action,
involving a new project, with different impacts and concerns than
were present when the initial environmental impact statements
were issued over 40 years ago. Thus, just as renewal of a
license to operate a nuclear power plant triggers the requirement
that the NRC produce a supplemental environmental impact
statement (see 10 CFR § 51.20), both the Coastal Zone Management
Act and the CMP require consistency review for re-licensing of
nuclear facilities.10 The Department's position that the Indian
Point reactors are not forever exempt from consistency review
9
The Department has informed this Court that in September
2016, it submitted to the National Oceanic Atmosphere
Administration's Office of Ocean and Coastal Resources Management
a routine program change to the CMP that would eliminate certain
provisions that the Department has concluded are obsolete,
including the exemptions at issue in this appeal.
10
As noted by the Department, it has previously conducted
federal consistency reviews of NRC license renewal applications
for three other aged nuclear power plants located in New York --
the James A. Patrick power plant, the R.E. Ginna nuclear plant,
and the Nine Mile Point Unit 1 plant.
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under the CMP, is reasonable.
In sum, the Department of State's interpretation of the
exemptions in the Coastal Management Program, and its conclusion
that Entergy's application to re-license the nuclear reactors at
Indian Point is subject to consistency review are rational, and
must be sustained. Accordingly, the Appellate Division order
should be reversed, with costs, the petition denied, and judgment
granted in favor of the Department of State appellants in
accordance with this opinion.
* * * * * * * * * * * * * * * * *
Order reversed, with costs, petition denied, and judgment granted
in favor of appellants in accordance with the opinion herein.
Opinion by Judge Abdus-Salaam. Chief Judge DiFiore and Judges
Pigott, Rivera, Stein, Fahey and Garcia concur.
Decided November 21, 2016
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