Goodwin attorneys achieved a significant victory on behalf of Entergy Corporation when the U.S. Court of Appeals for the District of Columbia Circuit on June 26 rejected challenges brought by the State of Vermont and outside groups to the Nuclear Regulatory Commission’s grant of Entergy’s 20-year renewed operating license for its Vermont Yankee nuclear power station.
In 2006, Entergy applied to renew its original operating license for Vermont Yankee, which was due to expire in March 2012. In connection with that application, Entergy needed to demonstrate compliance with Section 401 of the Clean Water Act, which requires an applicant for a federal license that involves discharges of pollutants (here, thermal discharges of cooling water) to obtain from the state a certification of expected compliance with state water quality standards. In its 2006 application, Entergy relied on the certification obtained from Vermont in connection with the original operating license. In the alternative Entergy relied on Vermont Yankee’s Section 402 NPDES permit, which is conditioned on compliance with state water quality standards.
The State of Vermont, which at the time was not opposed to Entergy’s license renewal application, never challenged Entergy’s position on Section 401 compliance during administrative proceedings before the NRC. Following a change in administration, however, the state adopted a well-publicized strategy of opposing license renewal by every possible means. Therefore, when the NRC granted Entergy’s application and issued the renewal license in 2011, the State, joined by private petitioners, challenged the license on the grounds that Entergy had not obtained a new Section 401 certification. The expectation was that if Entergy had to apply to Vermont for a new certification, the State would deny the application out of hand.
Goodwin Procter, which had not handled Entergy’s proceedings before the NRC, was brought in as appellate counsel. Our attorneys made a number of arguments, with emphasis given to the petitioners’ failure to exhaust their available administrative remedies, but also on the merits. The NRC also filed a brief supporting its issuance of the license. The case attracted considerable amicus curiae interest, with the State of New York and Riverkeeper filing briefs in support of the petitioners, and the Energy Future Coalition filing in support of the respondents.
In a 20-page unanimous decision, a panel of the D.C. Circuit (Judges Henderson, Rogers and Garland) agreed that the petitioners’ failure to first raise their arguments during five years of administrative proceedings was fatal to their claims. It rejected arguments by the petitioners that they had in fact preserved the issue before NRC, as well as their appeal to the court to exercise its discretion to consider the issue. With its decision, the D.C. Circuit resolved all federal challenges to Entergy’s operation of Vermont Yankee.