Indian Point lawsuit to be heard in Westchester, despite state challenge

Two lawsuits from Westchester County Executive Robert Astorino challenging a state settlement that will close Indian Point Energy Center by 2021 will be heard by a state judge in Westchester, following a ruling handed down Sept. 20.

State attorneys representing Gov. Andrew Cuomo and other state officials named in the lawsuit had asked the court to move the proceedings up to Albany County. A state supreme court judge in White Plains denied that request in a ruling last week.

Lawyers for the state argued that, despite the plant’s Buchanan location, the case should be heard in Albany, where the settlement to close Indian Point was reached. An Albany location for the hearing would also be more convenient for witnesses and access to the “voluminous” Department of Environmental Conservation records relevant to the case, the state argued.

Astorino’s attorney, Philip M. Halpern of Collier, Halpern, Newberg & Nolletti LLP in White Plains, said that the material events for the proceeding occurred in Westchester. It is in Westchester that “the closure of Indian Point….will have potentially devastating environmental, economic and social impacts” on the county, he said.

Acting Supreme Court Justice Helen M. Blackwood sided with Astorino. Blackwood said that while the court found the convenience of witnesses located in Albany “compelling,” the state did not provide enough evidence that moving the trial would serve the convenience of nonparty witnesses.

Further, Blackwood described Indian Point as the “facility at the very epicenter of the applications, litigation, inspections and determinations” that led to the agreement to close the plant.

“Were it not for the existence of the facility, the agreement, certification and permit would not exist,” Blackwood added in the 10-page decision.

The ruling represents the first action in the legal fight over the 2,000 megawatt Buchanan nuclear plant between former gubernatorial rivals Astorino and Cuomo.

Astorino, a Republican running for re-election in November, announced in May that he would file a lawsuit to have a state settlement to close the plant by 2021 annulled.

Indian Point owner and operator Entergy Corp. is expected to close the plant’s Unit 2 reactor by April 2020 and its Unit 3 reactor by April 2021 under the terms of a legal settlement reached in January. The agreement settled litigation between Entergy, the state and the environmental group Riverkeeper. As part of that deal, the state Department of Environmental Conservation agreed to provide Entergy temporary permits to operate the facility through 2021.

Astorino has filed two lawsuits challenging that settlement. The first is a hybrid Article 78 proceeding that asks the court to annul the agreement to close the plant, arguing that it required a full environmental review. The second seeks to annul the two permits issued by the state Department of Environmental Conservation that allow Entergy to operate in the state through 2021.

Astorino has said that a full environmental review of the settlement to close Indian Point could help examine whether there are sufficient energy resources to replace the plant’s power supply in Westchester and New York City, how much its closure could increase electric bills in the county and what economic impact the loss of jobs and tax revenues would have on the surrounding towns.

The county executive filed the lawsuit in his name only. The county’s Board of Legislators declined to support the legal action after Astorino first proposed the lawsuits in April. Halpern’s legal bills are still being submitted to the county, but they will not be paid unless the board votes to approve the expenditures, according to Astorino’s office.