New York Supreme Court Gives Westchester a Win on Indian Point

Indian PointSept. 22, 2017 - In a legal victory for Westchester, a state court judge ruled in favor of County Executive Robert P. Astorino’s efforts to force New York State to enforce its own environmental laws relating to the closure of Indian Point.

Read the decision.

Governor Andrew Cuomo and state officials had sought to move the case from Westchester to Albany, arguing that it wasn’t “material” that the plant is located in Westchester and that it would be more convenient for state officials to have the case heard in Albany. But Acting Supreme Court Justice Helen M. Blackwood rejected both arguments.

In her decision, Judge Blackwood wrote that Indian Point “is the facility at the very epicenter” of the case and that “it is erroneous to argue that no material events occurred in Westchester County.”

“Were it not for the existence of the facility, the agreement, certification and permit would not even exist,” she wrote. “It cannot be said that the acts which gave rise to the agreement and issuance of the certification and permit did not occur in Westchester.”

In May, Astorino sued Gov. Cuomo, New York State, Riverkeeper and Entergy, the operator of the plant, over their agreement, reached in secret, to close Indian Point. Astorino cited the state’s obvious breaches in following its own environmental laws, laying out in detail how the “three men in a room” deal failed to comply with New York’s State Environmental Quality Review Act, known as SEQRA.
Astorino applauded the judge’s decision to keep the case in Westchester where the risks and dangers of closing Indian Point are the most significant and profound. He said he hoped the case could now move forward without an appeal by the governor and state on the venue. Entergy has said it has “no position” on where the case is held.

“This case is not about what is or isn’t convenient for bureaucrats in Albany, nor does it have to do with the debate over nuclear energy,” said Astorino. “It has to do with the rule of law and the health, safety and pocketbooks of nearly 1 million Westchester residents and 9 million New Yorkers who were left out of the process to close Indian Point. New York must comply with its own environmental laws. We’re gratified that the case will be heard where it belongs – in Westchester.”

The County Executive’s legal arguments are clear and direct: that the state failed to meet its obligations under SEQRA to conduct environmental reviews before it announced its decision in January to close Indian Point. And by moving forward on the closure without the required environmental reviews, the state put the public at risk by failing to examine:

  •  whether sufficient energy sources will be available to replace the loss of 2,000 megawatts of electricity (roughly 25 percent of the current supply to nine million Westchester and New York City residents) so that rolling blackouts can be avoided;
  • whether the anticipated increases in electric bills will cause economic hardships for individuals, families, and businesses, particularly among minorities, low-income residents, seniors and others on fixed incomes;
  • whether the loss of thousands of jobs and a billion dollars of economic activity will devastate local communities and the county at large. (Payment in Lieu of Taxes losses alone are estimated at $72 million for Westchester County, the Town of Cortlandt, the Village of Buchanan and the 2,500-student Hendrick Hudson School District);
  • whether replacing zero-emission nuclear power with fossil fuels will contribute to climate change;
  • whether the decommissioning of the plant will require a taxpayer bailout since current funds are estimated to be more than $1 billion short of what will be needed;
  • whether the public will be exposed to health and safety dangers from leaving spent, radioactive fuel rods on site for a period estimated to range from 60 years to forever.

SEQRA is required for almost every basic public project, such as building pools, roads, playgrounds, purchasing computers and even renaming county facilities. The state is ignoring the law when it comes to one of the biggest environmental decisions in New York’s history – the closing of a nuclear plant, Astorino maintains.

Astorino’s lawsuit seeks to invalidate the agreement to close Indian Point until a full environmental review is conducted; ensure the environmental impact statement includes a comprehensive assessment of the socio-economic, energy replacement and environmental consequences of closing the plant; and guarantee any recommendations made by the state to mitigate the consequences of closing the plant will be subject to public review and debate prior to any final deal to close the plant.

The lawsuit is being litigated by Philip Halpern, one of New York’s preeminent trial attorneys with more than three decades of experience and the managing partner of the firm Collier, Halpern & Newberg, LLP. There are no costs to the county unless approved by the Board of Legislators.