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Lawsuit against Nuclear Subsidies headed for Court Trial

Challenge to N.Y. Nuclear Subsidies Will Go to Trial, Power, 01/25/2018 | Sonal Patel A lawsuit challenging subsidies for New York’s nuclear plants will head to trial after the state’s  Supreme Court rejected motions to dismiss it.

The measure deals a small setback for Exelon Corp., whose subsidiaries own the R.E Ginna and Nine Mile Point nuclear plants in upstate New York. Defendants in the lawsuit also include Entergy Corp., which owns Indian Point 2 and 3, and the New York State Public Service Commission (PSC).

Exelon had successfully lobbied the state to approve the Clean Energy Standard in August 2016, a  program that requires all six New York investor-owned utilities and other energy suppliers to pay for the intrinsic value of carbon-free emissions from nuclear power plants by purchasing “Zero-Emission Credits” (ZECs) between 2017 and 2029.

The measure has drawn strong opposition. The lawsuit filed by several citizens’ groups—including  the Nuclear Information Research Service, Beyond Nuclear, New York Public Interest Research Group,  Indian Point Safe Energy Coalition, Promoting Health and Sustainable Energy, and Goshen Green Farms—charges that PSC failed to follow the law by giving up more than $7.6 billion in ratepayer funds over 12 years to the companies’ financially ailing nuclear plants.

Specifically, the groups argued that the PSC failed to follow requirements in the State Administrative Procedure Act, and that the PSC’s actions were arbitrary and capricious—both by misapplying the social cost of carbon metric as a legal basis to include nuclear reactors in the Clean Energy Standard, and by declaring the reactors “publicly necessary.” Other stated causes of action allege that the PSC violated pubic service law by setting rates that are “unjust, unreasonable, unjustly discriminatory, and unduly preferential.”

The state and nuclear plant owners sought to dismiss the lawsuit, arguing that some claims are untimely because they were filed outside of the four-month statute of limitations after the Clean Energy Standard became final and binding. Respondents also argued that petitioners lack sufficient standing to pursue some claims, because alleged economic injuries were outside a defined zone of interests.

On Monday, Judge Roger D. McDonough dismissed claims by 56 of the 61 petitioners on the basis that they were time-barred. However, he denied five of the six objections posed by the respondents, ruling that the lawsuit should be fully heard rather than preempted by the respondents’ objections. “The Court declines to entertain such discussions without the benefit of answers and the full administrative record,” he wrote.

The ruling notes that at least three of the nuclear plants—James A. Fitzpatrick, R.E. Ginna, and Nine Mile Point Unit 1 and Unit 2—have received an estimated $360 million in subsidies over the past nine months. McDonough ruled, however, that while Indian Point was eligible for ZECs amounting to about $2 billion, contentions concerning that plant were not ripe for adjudication as the plant has not yet received them.

The citizens’ groups hailed the decision as a major victory for the rule of law. …….. http://www.powermag.com/challenge-to-n-y-nuclear-subsidies-will-go-to-trial/

January 26, 2018 - Posted by Christina Macpherson | Legal, USA