Saturday, July 11, 2009

NY Supreme Court Decision on Adverse Environmental Impact

On June 19th, the New York Supreme Court issued its decision in Entergy's Article 78 petition. As background, the Assistant Commissioner decided that adverse environmental impact (AEI) caused by the Indian Point cooling water intake structure already had been established and therefore, Entergy could litigate that issue in the SPDES proceeding. Entergy appealed that aspect of the Interim Decision because Entergy viewed AEI as a threshold question. In other words, if the intake structure does not cause AEI, then there is no need for the best technology available (BTA) analysis. The court dismissed the petition for lack of ripeness.

The court did not hold that Indian Point’s cooling water system causes adverse environmental impact. The opinion recognizes that Indian Point currently operates under a valid SPDES permit. The opinion says the draft SPDES permit, which states that the intake structures cause an adverse environmental impact and establishes cooling towers as the best technology available, are non-final agency action. Therefore, there is currently no valid BTA determination and the contents of the final SPDES permit (including whether AEI exists or whether cooling towers are the best technology available) are uncertain until the completion of the pending administrative process.

New York Supreme Court Decision

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