In the Matter of Entergy Nuclear Operations, Inc., et al., Respondents,v.New York State Department of State et al., Appellants.BriefN.Y.October 19, 2016APL-2015-00152 To be Argued by: BARBARA D. UNDERWOOD (Time Requested: 20 Minutes) App. Div. Third Dept. No. 518510; Albany Co. Index No. 1535-13 Court of Appeals of the State of New York IN THE MATTER OF ENTERGY NUCLEAR OPERATIONS, INC., ENTERGY NUCLEAR INDIAN POINT 2, LLC, AND ENTERGY NUCLEAR INDIAN POINT 3, LLC, Petitioners-Respondents, -AGAINST- THE NEW YORK STATE DEPARTMENT OF STATE AND CESAR A. PERALES, SECRETARY OF THE NEW YORK STATE DEPARTMENT OF STATE, Respondents-Appellants. REPLY BRIEF OF RESPONDENTS-APPELLANTS BARBARA D. UNDERWOOD Solicitor General ANDREW D. BING Deputy Solicitor General FREDERICK A. BRODIE Assistant Solicitor General LISA M. BURIANEK Assistant Attorney General Environmental Protection Bureau of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondents- Appellants The Capitol Albany, New York 12224 (518) 776-2317 (telephone) (518) 915-7724 (facsimile) Dated: February 16, 2016 Reproduced on Recycled Paper i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ..................................................................... iii PRELIMINARY STATEMENT ................................................................. 1 ARGUMENT ENTERGY’S APPLICATION FOR A 20-YEAR RENEWAL OF INDIAN POINT’S FEDERAL OPERATING LICENSES IS SUBJECT TO REVIEW BY NYSDOS FOR CONSISTENCY WITH NEW YORK’S COASTAL POLICIES ................................... 2 A. License Renewal is a New, Independent, and Separate Federal Action that is Subject to Consistency Review. ......... 2 1. Entergy’s Relicensing Application Is Subject to Review for Consistency with New York’s Coastal Policies. ........................................................................... 3 2. The CMP Does Not Shield “Facilities” From Consistency Review for Relicensing Applications. ........ 5 3. The CMP’s Exemptions Do Not Perpetually Shield from Consistency Review All Applications for Federal Licenses at Indian Point ................................. 10 4. Coastal Consistency Review by NYSDOS Does Not Duplicate Other Regulatory Efforts. ........................... 13 5. NYSDOS Is Responsible for Reviewing Entergy’s Relicensing Application for Coastal Consistency. ....... 17 B. NYSDOS Rationally Concluded that the Indian Point Reactors Did Not Fall Within the CMP’s Exemptions. ....... 20 ii Table of Contents (cont'd) PAGE Argument, Point B (cont'd) 1. NYSDOS Rationally Concluded that Indian Point Does Not Fall Within the CMP’s First Exemption. ..... 22 2. NYSDOS Rationally Concluded that the CMP’s Second Exemption Applied Only to Actions Undertaken Within a Specific Time Period. ............... 27 CONCLUSION ........................................................................................ 31 iii TABLE OF AUTHORITIES CASES PAGE Atl. Cement Co., Matter of v. Williams, 129 A.D.2d 84 (3d Dep’t 1987) ..................................................... 13n Caprio v. N.Y. State Dep’t of Taxation & Finance, 25 N.Y.3d 744 (2015), rearg. denied, 26 N.Y.3d 955 (2015) .................................................................... 18n Crawford v. Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d 291 (1974) .................................................................... 18n Dunham v. Townshend, 118 N.Y. 281 (1890) ...................................................................... 18n Durovic v. Richardson, 479 F.2d 242 (7th Cir. 1973) .......................................................... 21 Entergy Nuclear Indian Point 2, LLC v. N.Y. State Dep’t of Envt’l Conserv., 23 A.D.3d 811 (3d Dep’t 2005), lv. dismissed, 6 N.Y.3d 802 (2006) ...................................................................... 26n Flacke v. Onondaga Landfill Sys., 69 N.Y.2d 355 (1987) ...................................................................... 21 Forti v. N.Y. State Ethics Comm., 75 N.Y.2d 596 (1990) ...................................................................... 12 Miller v. DeBuono, 90 N.Y.2d 783 (1997) ...................................................................... 12 Nation v. City of New York, 14 N.Y.3d 452 (2010) ................................................................. 11,12 Natural Resources Defense Council v. N.Y. State Dep’t of Environmental Conservation, 25 N.Y.3d 373 (2015) ...................................................................... 21 iv Table of Authorities (cont’d) STATE STATUTES PAGE E.C.L. § 8-0111(5)(a) .................................................................................. 22 N.Y. Statutes (McKinney 1971) § 51 .......................................................................................... 11,12 § 213 ............................................................................................... 21 L. 1976, ch. 228, § 5 ....................................................................... 23,24,25 STATE RULES AND REGULATIONS 19 N.Y.C.R.R. Part 600 .......................................................................................... 28 § 600.3(d) ........................................................................................ 27 Part 617 .......................................................................................... 28 22 N.Y.C.R.R. § 500.6 .......................................................................................... 18N FEDERAL STATUTES 16 U.S.C. § 1451(i) .......................................................................................... 14 § 1456(c)(3)(A) ........................................................................ passim FEDERAL RULES AND REGULATIONS 15 C.F.R. § 923.12 ......................................................................................... 29n § 923.52(a) .................................................................................... 29n § 923.53 .................................................................................... 29n,30 § 923.55 ......................................................................................... 29n v Table of Authorities (cont’d) FEDERAL RULES AND REGULATIONS PAGE 15 C.F.R. (cont’d) § 930.11(d) ...................................................................................... 7n § 930.51(b)(1) .................................................................................... 4 § 930.60(a) ...................................................................................... 12 § 930.125 ......................................................................................... 16 44 Fed. Reg. 37150 (Jun. 25, 1979) ........................................................... 5 MISCELLANEOUS http://www.dos.ny.gov/opd/programs/pdfs/consistency decisions/F-2012-1028.pdf (last viewed Feb. 15, 2016) ............... 18n Letter from John P. Asiello to counsel dated Dec. 16, 2015 ................. 18n “Project” http://dictionary.cambridge.org/us/dictionary/ english/project (last visited Feb. 12, 2016) .................................... 6n http://dictionary.reference.com/browse/project (last visited Feb. 12, 2016) ............................................................. 6n http://thefreedictionary.com/project (last visited Feb. 12, 2016) ............................................................. 6n Tappan Zee Hudson River Crossing Project, Joint Record of Decision, http://www.newnybridge.com/documents/rod/00-record-of- decision.pdf (last visited Feb. 16, 2016) ......................................... 30 PRELIMINARY STATEMENT In its opening brief, the New York State Department of State (NYSDOS) demonstrated that Entergy’s new application to relicense the nuclear reactors at Indian Point for 20 years beyond the expiration of their initial, 40-year licenses was subject to review by NYSDOS for consistency with the coastal policies set forth in New York’s Coastal Management Program. In response, Entergy argues that the Indian Point reactors fall within two narrow, time-limited exemptions to coastal consistency review under the CMP. As a result, Entergy contends, no federal agency activity with regard to those reactors can ever be reviewed by NYSDOS for consistency with the 44 coastal policies set forth in the CMP. More specifically, under Entergy’s interpretation of the CMP, because environmental impact statements were prepared for the Indian Point reactors in 1972 and 1975, before coastal consistency review existed in New York, the relicensing of those reactors 40 years later for an additional 20 years of operation cannot be examined by NYSDOS for consistency with New York’s coastal policies, regardless of how - 2 - dramatically the reactors’ operation and configuration have changed from the original concepts. As NYSDOS argued in its opening brief, that cannot be the law. As explained below, Entergy’s premise that its relicensing application falls within the CMP’s exemptions, and its conclusion that the Indian Point reactors are perpetually exempt from consistency review by NYSDOS, are both flawed. ARGUMENT ENTERGY’S APPLICATION FOR A 20-YEAR RENEWAL OF INDIAN POINT’S FEDERAL OPERATING LICENSES IS SUBJECT TO REVIEW BY NYSDOS FOR CONSISTENCY WITH NEW YORK’S COASTAL POLICIES A. License Renewal is a New, Independent, and Separate Federal Action that is Subject to Consistency Review. Entergy urges that the CMP’s second exemption, covering projects “for which a final Environmental Impact Statement has been prepared” prior to September 1, 1976, “applies literally to Indian Point” because EISs were prepared for the initial 40-year licensing of the Indian Point reactors in 1972 and 1975. (Brief for Petitioners-Respondents [“Resp. Br.”] 27; see R.276.) But that language does not cover the reactors’ relicensing. License renewal is an independent regulatory action - 3 - undertaken by the NRC that is distinct from the initial 40-year-old licensing decision. (See R.3181-3182; Brief for Respondents-Appellants [“App. Br.”] 18-19, 32-34, 38.) As shown below, relicensing the Indian Point reactors for an additional 20 years at the end of their 40-year lifespan is a new and separate project that is subject to coastal consistency review. 1. Entergy’s Relicensing Application Is Subject to Review for Consistency with New York’s Coastal Policies. Characterizing the purpose of grandfather clauses as “protect[ing] private investment” (Resp. Br. 25 n.13), Entergy stresses that money and time were invested in building and operating Indian Point. (See Resp. Br. 24-25). The Court should not be swayed by that reliance argument. Entergy and the reactors’ previous owners have received the benefit of Indian Point’s operation over the entire 40-year term of the reactors’ initial operating licenses without review of those licenses for consistency with New York’s coastal policies. Since nuclear power plant licenses were limited to a 40-year duration (see App. Br. 17-18) and the plants’ original EISs contemplated a 40-year operating life (see App. Br. 50), Entergy had no legally-protected expectation of continuing to - 4 - operate the reactors after their initial licenses had expired, let alone obtaining renewed licenses to operate for an additional 20 years without complying with the requirement of coastal consistency review. The relicensing of a nuclear reactor requires new, distinct, and separately-documented environmental and regulatory analyses. (See App. Br. 17-19, 32-34, 38 and regulations cited.) Under New York’s CMP, “[l]icensing and certification” of nuclear plants are subject to coastal consistency review (R.295); that provision applies equally to “renewals” of such licenses (R.286). (See App. Br. 13, 36-37.) Federal regulations likewise support NYSDOS’s determination that Entergy’s relicensing application is subject to review for consistency with New York’s CMP. Under the CZMA’s regulations, a “federal license or permit” subject to consistency review is a defined term that includes “[r]enewals” of “federal license or permit activities not previously reviewed by the State agency.” 15 C.F.R. § 930.51(b)(1). This provision was specifically intended to “assure[] the State agency of an opportunity to review licenses and permits which were originally approved by the Federal government prior to [coastal] management program approval and are subject to . . . renewal following management - 5 - program approval.” 44 Fed. Reg. 37150 (Jun. 25, 1979). That is because “an applicant does not have a vested right to receive approval of a renewal . . . without first complying with the law existing at the time approval is sought.” Id. The CZMA is far from “irrelevant” (Resp. Br. 26); in fact, the CMP requires that NYSDOS “carry out its federal consistency review responsibilities in full compliance with the requirements of the Coastal Zone Management Act and 15 C[F]R Part 930.” (R.284.) NYSDOS has not previously reviewed the Indian Point reactors’ operating licenses for consistency with New York’s coastal policies. (R.3182.) It thus may do so now, when the licenses are being renewed. In sum, whether viewed from the state level, the federal level, or both, NYSDOS’s review of Entergy’s relicensing application for consistency with New York’s coastal policies is authorized and appropriate. 2. The CMP Does Not Shield “Facilities” From Consistency Review for Relicensing Applications. Entergy contends that the Indian Point reactors are forever exempt from coastal consistency review under the CMP because “the - 6 - exemption uses the terms ‘project’ and ‘facility’ as synonyms, meaning that the Indian Point facility is covered for its lifetime” (Resp. Br. 3 [emphasis in original]; see Resp. Br. 33-34). Entergy is wrong. The exemption uses the term “project,” not “facility.” “Project” is not synonymous with a brick-and-mortar plant. As used here, a “project” is “something that is contemplated, devised, or planned”;1 “[a]n undertaking requiring concerted effort” or “[a] plan or proposal for accomplishing something”;2 or “a piece of planned work or activity that is completed over a period of time and intended to achieve a particular aim.”3 All those definitions describe the same concept—a planned undertaking or activity. That concept may encompass, among other things, (a) the construction or modification of a physical facility and the facility thus constructed; (b) the operation of a facility for a defined period of time; or (c) the extension or alteration of the operation of a physical plant beyond its original expected term, or under new or different conditions. 1 See http://dictionary.reference.com/browse/project (last visited Feb. 12, 2016). 2 See http://www.thefreedictionary.com/project (last visited Feb. 12, 2016). 3 See http://dictionary.cambridge.org/us/dictionary/english/project (last visited Feb. 12, 2016). - 7 - The relevant statutes and regulations also support an understanding of “project” that covers not merely the physical facility involved but also the activities contemplated at the facility. The federal CZMA provides for consistency review of an application “for a required Federal license or permit to conduct an activity, in or outside of the coastal zone, affecting any land or water use or natural resource of the coastal zone of that state.” 16 U.S.C. § 1456(c)(3)(A). The federal consistency review procedures in New York’s CMP likewise apply to “activities.” (R.283.) The covered “activities” include, among other things, “[a]ctivities requiring federal licenses, permits and other regulatory approvals.” (R.283.)4 The CZMA’s federal consistency provisions empower the states to regulate federal agency licenses or permits to conduct an “activity,” see 16 U.S.C. § 1456(c)(3)(A). That term is synonymous with the dictionary definitions of “project” quoted above, and is inconsistent with Entergy’s artificially-restricted concept of projects as solely physical “facilities.” 4 Under the CZMA regulations, an “associated facility” may also be subject to consistency review. See 15 C.F.R. § 930.11(d). Federal consistency review thus may apply to physical facilities. Here, however, NYSDOS did not conduct a federal consistency review of Indian Point’s physical “facilities,” but rather reviewed the coastal effects of their continued operation under newly- extended licenses. - 8 - Examples of “activities” subject to federal consistency review under the CMP illustrate a wide range of federal agency actions, including the “Establishment of harbor lines,” “Disposal of dredged spoils into the waters of the U.S.,” and “Orders for interconnection of electric transmission facilities” (R.294), as well as numerous other activities for which federal licenses or permits are required (R.293-295). In the paragraphs prior to the exemption, the CMP uses the more limited word “facility” to identify specific facility-related issues: for example, consideration of “various types of facilities which may locate in coastal areas” or “uses and facilities of regional benefit.” (R.276.) All of those “uses and facilities” are “projects” as that term is used in the exemption. The term “project” readily encompasses a proposal for relicensing a nuclear power plant, which requires detailed and extensive new documentation and investigation and does not follow automatically from the original licensing decision. (See App. Br. 17-19, 32-34.) Entergy’s reliance on the word “facility” is misplaced because Entergy seeks relicensing in order to conduct a host of uses and activities in and around those buildings, including the operation of - 9 - nuclear reactors and spent fuel pools, the continuous diversion of river water to enable those operations, the generation of electricity, and the delivery of electricity to the grid for an additional 20 years beyond the expiration of its initial licenses. By substituting the term “facility” for the “project” in the CMP’s exemptions, Entergy asks the Court to ignore the many distinct activities that it conducts in the coastal zone at Indian Point. In short, extending the operation of the physical plants at Indian Point beyond the period of its initial license is a new project in the ordinary meaning of that term—that is, after all, why a new license is required. This Court should not permit Entergy to obscure that fact by substituting the term “facility” for “project” in the statutory exemption that governs this case.5 5 The CMP’s statement that “[n]o negative effects on energy use and development are expected” as a result of its implementation (R.331, cited at Resp. Br. 18) does not support Entergy’s position. That passage does not purport to exempt existing nuclear plants from federal consistency review; rather, it asserts that review will not be harmful to energy use and development. Indeed, that same passage of the CMP cautions that energy facilities in the coastal area must be “developed with satisfactory environmental safeguards” and that NYSDOS would participate in “review procedures” for such facilities. (R.331.) - 10 - 3. The CMP’s Exemptions Do Not Perpetually Shield from Consistency Review All Applications for Federal Licenses at Indian Point The CMP expressly identifies “[l]icensing . . . of nuclear power plants” as subject to federal consistency review (R.295), and further provides that “renewals” of such regulatory approvals are also subject to review (R.286). Therefore, the text of the CMP makes clear that Indian Point’s license renewals are covered. Entergy’s position that the CMP’s consistency review exemptions apply to each physical facility “for its lifetime” (Resp. Br. 3)—without regard to subsequent license renewals (Resp. Br. 34-35)—is flatly inconsistent with that text. Thus, even if the initial operating licenses had been subject to review for consistency with New York’s CMP, the application for renewal of those licenses would be still subject to review unless specifically exempted (and we demonstrate below that no exemption applies). Because the initial operating licenses were issued before the CMP was adopted in 1982, and no applications were pending at that time, Indian Point’s initial operating licenses were not even eligible to be reviewed for consistency and they were not eligible for the CMP’s - 11 - exemptions from consistency review. The CMP nowhere states that it applies to federal actions taken, or licenses granted, prior to its adoption. Therefore, neither the CMP nor its exemptions should be construed as applying to such preexisting federal actions. See generally Nation v. City of New York, 14 N.Y.3d 452, 456-57 (2010) (legislation should not be construed to operate retroactively “unless the language expressly or by necessary implication requires it”) (citation and internal quotation marks omitted); N.Y. Statutes § 51 at 93 (McKinney 1971). The process of federal consistency review operates upon, and is triggered by, the existence of an application to a federal agency, and no such application for Indian Point 2 or 3 was pending when the CMP was adopted. The Indian Point reactors’ initial operating licenses were not subject to coastal consistency review because both reactors were already fully licensed and operational when the CMP received federal approval in 1982. There was no application pending before a federal agency in 1982 that would have been subject to federal consistency review.6 See 6 Similarly, Indian Point was fully operational when SEQRA was enacted on June 1, 1976, so the initial operating licenses were not subject to SEQRA review either—although certain activities for Indian Point 3, aside from its licensing and operation, were identified as exempt by the New York Power Authority. (R.3222; see Point B(1)). - 12 - generally 16 U.S.C. § 1456(c)(3)(A) (federal consistency review applies “[a]fter final approval by the Secretary [of Commerce] of a state’s [coastal] management program”); 15 C.F.R. § 930.60(a). The fact that the CMP did not apply to Indian Point’s initial licensing does not bar its application to relicensing applications, however. A statute or regulation is “not retroactive . . . when made to apply to future transactions merely because such transactions relate to and are founded upon antecedent events.” Nation, 14 N.Y.3d at 457 (internal quotation marks and citation omitted); N.Y. Statutes § 51 at 87 (McKinney 1971). Thus, for example, an engineer who previously filed false documents could be barred by regulation from submitting documents to the New York City Department of Buildings, even though the prior filings were made before the regulation’s adoption. Id. at 457-58; accord Miller v. DeBuono, 90 N.Y.2d 783, 790 (1997); Forti v. N.Y. State Ethics Comm., 75 N.Y.2d 596, 609 (1990). Indeed, since Indian Point’s initial operating licenses have never been subject to coastal consistency review, it would be especially implausible to find that New York has given them a perpetual exemption that extends to renewals of those licenses. Rather, by - 13 - applying to the NRC for renewal of its operating licenses, Entergy subjected Indian Point to federal coastal consistency review for the first time in 2007.7 NYSDOS’s November 6, 2015 consistency decision on Indian Point’s license renewal application was not a review of the “facility” as a physical building, see Point A(2), but rather of the coastal effects on the Hudson River from relicensing that facility to operate for an additional 20 years. 4. Coastal Consistency Review by NYSDOS Does Not Duplicate Other Regulatory Efforts. Entergy stresses that, “[f]rom construction through initial operation,” the Indian Point reactors received a “full range of approvals from federal, state, and local agencies.” (Resp. Br. 5.) But the reactors’ initial construction and operation are not at issue here. This case instead concerns Entergy’s application to the NRC to operate the Indian Point reactors for 20 additional years beyond their 40-year lifespan, and 7 This case therefore differs materially from Matter of Atl. Cement Co. v. Williams, 129 A.D.2d 84, 88 (3d Dep’t 1987), in which the Third Department opined that DEC should not “unduly burden[]” companies applying for the renewal of state permits which DEC had previously approved. (See Resp. Br. 34). NYSDOS, the designated agency for coastal consistency review, has not previously undertaken a consistency analysis of Indian Point’s federal licenses. (R.3182.) - 14 - the implications of that proposal for New York’s Hudson River coastal resources. As demonstrated above and in NYSDOS’s opening brief, that new federal agency activity is subject to coastal consistency review. In enacting the CZMA, Congress specifically intended to give the States the opportunity to veto federal licenses that conflict with their coastal policies. Congress believed that “[t]he key to more effective protection and use” of the coastal zone is “to encourage the states to exercise their full authority” over coastal lands and waters. 16 U.S.C. § 1451(i). To achieve that goal, the CZMA set up a system under which applicants for federal licenses must certify their compliance with the policies in the applicable state CMP, and the state in turn must “notify the Federal agency concerned that the state concurs with or objects to the applicant’s certification.” 16 U.S.C. § 1456(c)(3)(A). In undertaking coastal consistency review, NYSDOS is implementing this federal statutory mandate, not “second guessing” other agencies’ environmental reviews. Consistency review under the CMP does not duplicate other regulatory regimes. To the contrary, the CMP was intended to “cause changes in the way existing environmental and economic development - 15 - activities of State agencies affect the use of coastal resources.” (R.65.) The CMP effected those changes, in part, by applying 44 identified coastal policies to new federal and state actions in a coordinated fashion. (See R.141.) Prior to the CMP, coastal issues “were not . . . being adequately addressed by existing State law or regulations.” (R.141.) Entergy is simply mistaken when it argues that a separate coastal consistency review is not required because the CMP provides that Indian Point’s aquatic impacts will be regulated by DEC. (See Resp. Br. 18.) The CMP’s 44 coastal policies all were “derived from existing laws and regulations administered by state agencies” (R.142), and the CMP did not displace those laws. The CMP specifically assigned to NYSDOS the sole responsibility for “conducting the Federal consistency review process at the State level” (R.95) and “reviewing federal activities” for consistency with the 44 coastal policies (R.283). To conduct such reviews, NYSDOS must “evaluate major actions proposed in the Coastal Area of the State by Federal agencies or by entities requiring Federal permits and determine the consistency of those actions with the [CMP’s] policies.” (R.95.) No other State agency - 16 - performs that function. (See R.94-95, 283-284, 286, 3175-3176; App. Br. 39-40.) It is likewise inaccurate to say that NYSDOS seeks to “second- guess” the decisions of federal nuclear regulators (Resp. Br. 1.) The federal regulators are not charged with evaluating the impact of a project on New York’s coastal resources. Rather, Congress required that “any applicant for a required Federal license . . . to conduct an activity . . . affecting any land or water use or natural resource of the coastal zone of that state shall provide . . . a certification that the proposed activity complies with the enforceable policies of the state’s approved [coastal management] program and that such activity will be conducted in a manner consistent with the program.” 16 U.S.C. § 1456(c)(3)(A). And the CZMA assigns the task of determining “consistency” not to a federal agency, but to “the state or its designated agency,” see 16 U.S.C. § 1456(c)(3)(A), subject to limited federal review, see 15 C.F.R. § 930.125. New York’s designated agency for that purpose is NYSDOS. (See App. Br. 12-13 and materials cited.) Thus, for example, while the NRC may “comprehensively regulate[]” spent nuclear fuel storage (Resp. Br. at 12), the question - 17 - addressed by NYSDOS is not how spent nuclear fuel should be stored, but whether storing spent nuclear fuel on the banks of the Hudson River is consistent with the coastal policies set forth in New York’s CMP. Similarly, while DEC and the NRC may be addressing Indian Point’s “potential aquatic impacts” within their respective purviews (Resp. Br. 11), only NYSDOS is charged with deciding whether the NRC’s renewal of Indian Point’s federal operating licenses—the federal agency action—would be consistent with New York’s 44 coastal policies. 5. NYSDOS Is Responsible for Reviewing Entergy’s Relicensing Application for Coastal Consistency. Entergy’s discussion of Indian Point’s benefits (Resp. Br. 8-14) is addressed to the wrong forum. The economic, energy, and environmental effects of nuclear power plants (Resp. Br. 8-9) are all matters to be considered by NYSDOS under the CMP, not reasons for exempting this project from consistency review. (See, e.g., R.184 [Policy 18 – economic, social and environmental interests], 225 [Policy 27 – energy needs and environmental compatibility].) The CMP also considers the impacts on the aquatic environment (Resp. Br. 9-12) and the storage of spent nuclear fuel (Resp. Br. 12-14). (See R.168 [Policy 9 – - 18 - fish and wildlife resources], 170 [Policy 10 – development of fish resources], 232 [Policy 30 – discharge of pollutants], 237 [Policy 36 – storage of hazardous materials], 238 [Policy 38 – water conservation], 239 [Policy 39 – hazardous solid wastes], 240 [Policy 40 – effluent from electric generating facilities].) Indeed, NYSDOS considered those very issues in its objection8 to Indian Point’s relicensing, which Entergy references at pages 23-24 of its brief. See, e.g., Objection at 21-22 (Policies 9 and 10 – fish resources), 23-31 (Policy 18 – economic, social and environmental interests), 32-34 (Policy 27 – energy needs and environmental compatibility), 34-36 (Policies 8, 36, and 39 – pollutants and hazardous wastes), 36-37 8Available at http://www.dos.ny.gov/opd/programs/pdfs/consistencyDecisions/ F-2012-1028.pdf (last visited Feb. 15, 2016). Although the Court did not accept submission of this decision pursuant to 22 N.Y.C.R.R. § 500.6, it did permit NYSDOS to update its brief by referencing the decision. See letter from John P. Asiello to counsel dated Dec. 16, 2015. Since the decision is available on the internet and a matter of public record, we cite it as we would other publicly-available sources. See Caprio v. N.Y. State Dep’t of Taxation & Finance, 25 N.Y.3d 744, 756 (2015), rearg. denied, 26 N.Y.3d 955 (2015); Crawford v. Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d 291, 298-99 (1974); Dunham v. Townshend, 118 N.Y. 281, 286 (1890). The decision is cited here to establish the issues addressed by NYDOS in its decision—which is reviewable elsewhere—and not to ask this Court to accept or reject its conclusions. - 19 - (Policies 30 and 38 – discharge of pollutants and water conservation), 37-38 (Policy 40 – effluent from electric generating facilities). The costs and benefits of relicensing Indian Point for 20 additional years should be subjected to that sort of careful, coordinated regulatory weighing. They are neither fully nor accurately portrayed in Entergy’s brief which, among other things, argues that the measures to minimize fish entrainment and impingement “have succeeded” and cites as its source Entergy’s own license renewal application. (See Resp. Br. 11, citing R.4567.) In reply, it is sufficient to note that DEC disagrees with Entergy’s assertion. DEC has concluded that modifications implemented by Entergy resulted “in only a small reduction in the number of aquatic organisms entrained” by Indian Point’s water intake system. (R.3139.) DEC has observed that Indian Point has “not . . . installed any technology to minimize the amount of entrainment” caused by the reactors’ water intake systems; DEC further noted that Entergy’s operation of those intake systems still “results in the entrainment mortality of approximately one billion aquatic organisms each year.” (R.3149.) - 20 - If Entergy thinks NYSDOS’s careful weighing is wrong, it may seek to appeal the objection to the U.S. Secretary of Commerce and then to the federal courts. (See App. Br. 10-11.) What it may not do—yet what it seeks to do here—is circumvent the consistency review process by asserting, incorrectly, that the CMP affords the Indian Point reactors a perpetual exemption. B. NYSDOS Rationally Concluded that the Indian Point Reactors Did Not Fall Within the CMP’s Exemptions. Entergy stresses that a CMP “may . . . contain exemptions.” (Resp. Br. 15.) The question here, though, is not whether New York’s CMP contains exemptions, but how and by whom an exemption should be construed. In a detailed response to Entergy’s request for a declaratory ruling, NYSDOS—which authored the CMP—construed its two exemptions and determined that they did not apply to the license renewal application for Indian Point. (See R.486-500.) “[G]reat weight and judicial deference” should be accorded to an agency’s interpretation and application of its own program where, as here, “the judgment of the agency involves factual evaluations in the area of the agency’s expertise - 21 - and is supported by the record.” Flacke v. Onondaga Landfill Sys., 69 N.Y.2d 355, 363 (1987). The reviewing court “may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious.” Id.; accord Natural Resources Defense Council v. N.Y. State Dep’t of Environmental Conservation, 25 N.Y.3d 373, 397 (2015). The Appellate Division acknowledged this standard as well. (R.4609.) Further, contrary to Entergy’s suggestion (Resp. Br. 24), a “grandfather clause” exception like the ones at issue “is to be construed strictly against one who invokes it.” Durovic v. Richardson, 479 F.2d 242, 250 n.6 (7th Cir. 1973); see also N.Y. Statutes § 213 at 372-73 (McKinney 1971) (exception in statute “must be strictly construed” and “all doubts should be resolved in favor of the general provision rather than the exception”). Applying the proper standards, this Court should uphold NYSDOS’s determination that Indian Point does not fall within either of the CMP’s exemptions from federal consistency review. - 22 - 1. NYSDOS Rationally Concluded that Indian Point Does Not Fall Within the CMP’s First Exemption. Construing the CMP’s first exemption, which covers “those projects identified as grandfathered pursuant to [SEQRA] at the time of its enactment in 1976” (R.276), NYSDOS properly focused on the word “identified.” (R.489.) That word, NYSDOS reasoned, signified that “the exemption from consistency is not coextensive with the SEQRA grandfathering provision.” (R.489.) Subject to certain exceptions, SEQRA’s grandfathering provision broadly excluded from coverage “[a]ctions undertaken or approved prior to the effective date of this article,” i.e., September 1, 1976. E.C.L. § 8-0111(5)(a). In the CMP, the distinctive phrase “identified as grandfathered” must have some meaning beyond simply referencing SEQRA’s statutory provision; if NYSDOS had wanted to bring about the result urged by Entergy (Resp. Br. 37), it would simply have exempted projects “grandfathered under” SEQRA without requiring those projects to have been “identified” as grandfathered “pursuant to” SEQRA. NYSDOS reasonably viewed the word “identified” as referring to the separate statutory process under which, not later than August 1, - 23 - 1976, each state agency was directed to “submit to the director of the budget a list of projects which such agency deems to have been approved” for the purpose of exempting those projects from SEQRA. (R.489, quoting L. 1976, ch. 228, § 5; see also R.4279-4280 [describing process].) The director of the budget would then “review such lists to certify that substantial time, work and money have been expended on such projects.” (R.489, quoting L. 1976, ch. 228, § 5.) Once the director of the budget made such a certification, an “official list of projects” identified as exempt would be submitted to the commissioner of environmental conservation, and the projects on that list “shall be deemed approved and therefore not subject” to SEQRA’s provisions. (R.489, quoting L. 1976, ch. 228, § 5.) As NYSDOS explained, “[t]he exemption is not ‘automatic;’ the relevant agency had to expressly identify the specific project as being exempt from SEQRA.” (R.489.) In its response to Entergy’s declaratory ruling request, NYSDOS concluded that the CMP’s first exemption referred to projects expressly “identified” through that process. (R.488-490.) Because the licensing and operation of Indian Point 2 and 3 were not listed, NYSDOS concluded that the exemption did not apply to either facility. (R.3180.) - 24 - The agency’s conclusions were reasonable, and find ample support in the exemption’s text. As the agency that drafted the CMP, NYDOS is entitled to a measure of deference in explaining the purpose and meaning of the text. NYSDOS explained that it made a deliberate decision to “rel[y] upon the lists of grandfathered SEQRA projects compiled by other state agencies” (R.490; accord R.3179), rather than to make its own determination about whether a project qualified for the exemption. For that reason, while SEQRA provided that, for projects to qualify for the official list, the director of the budget must certify that “substantial time, work and money have been expended on such projects” (R.489, quoting L. 1976, ch. 228, § 5), the CMP states that projects subject to the exemptions “have been determined to be projects for which a substantial amount of time, money and effort have been expended.” (R.276; emphasis added and typographical error corrected.) By this language, the CMP adopted the lists compiled pursuant to SEQRA, and did not undertake to determine for itself whether a particular project was one for which the requisite time, money and effort had been expended. (R.3179.) - 25 - Although Entergy acknowledges the existence of the listing process (Resp. Br. 38), it argues that, because state agencies were given until August 1, 1976 to compile their lists, projects on the lists could not have been grandfathered “at the time of [SEQRA’s] enactment in 1976” as set forth in the CMP. (Resp. Br. 38-39.) Entergy is wrong because it reads the exemption as applying to projects identified at the time of SEQRA’s enactment, rather than projects identified—later, pursuant to ch. 228, § 5—as having been grandfathered at the time of SEQRA’s enactment. The projects on the agency’s list were all expressly “deem[ed]” by the agency “to have been approved prior to the effective date” of SEQRA. (R.3220; accord R.3218.) Therefore, when listing projects for exemption from SEQRA, the agency and the Director of the Budget “identified” projects as having been exempt “at the time of [SEQRA’s] enactment.” NYSDOS’s reading of the CMP’s first exemption makes sense, and falls within the broad interpretive latitude afforded to administrative agencies. Entergy’s reading of the exemption, on the other hand, makes the words “identified as” unnecessary—to obtain the meaning urged by Entergy, the exemption could simply have referred to projects - 26 - “grandfathered by” SEQRA rather than “identified as grandfathered pursuant to” SEQRA. Once the first exemption is properly understood as referring to projects appearing on list compiled in 1976, it is plain that the exemption has no application here. The Power Authority of the State of New York, then the owner of Indian Point 3, compiled the relevant list of actions (R.3221-3223) and submitted it to the director of the budget (see R.3220), who approved it on or before April 17, 1978 (R.3218). The list did not include Indian Point 2 at all (see R.3221-3223); it included only specified actions for Indian Point 3 (see R.3222), but did not cover the reactor’s licensing or operation (R.3180). Nor did the list address or even conceive of a renewal of either Indian Point license decades in the future. (See R.3222.) Therefore, the CMP’s first exemption does not cover the relicensing of Indian Point 2 or 3. (See R.3179-3180.)9 9 Contrary to Entergy’s assertion (Resp. Br. 36-37), new actions relating to the Indian Point reactors are subject to SEQRA. For example, a SEQRA analysis was undertaken for Indian Point 3’s sale to Entergy in 2000. (See R.3369, 3420-21.) SEQRA review is likewise required for Entergy’s application to renew its SPDES permits, which is currently being adjudicated by the DEC. See Entergy Nuclear Indian Point 2, LLC v. N.Y. State Dep’t of Envt’l Conserv., 23 A.D.3d 811, 812 (3d Dep’t 2005), lv. dismissed, 6 N.Y.3d 802 (2006). (See generally R.500; App. Br. 16 n.2; Resp. Br. 11.) - 27 - 2. NYSDOS Rationally Concluded that the CMP’s Second Exemption Applied Only to Actions Undertaken Within a Specific Time Period. As NYSDOS explained in its response to Entergy’s request for a declaratory ruling (R.497), the CMP’s second exemption focused on a specific, limited window of time: the period between SEQRA’s effective date and the State coastal consistency regulations’ effective date. (See App. Br. 3.) The exemption covered “those projects for which a final Environmental Impact Statement has been prepared prior to the effective date of the Department of State Part 600 regulations [see Appendix A, DOS Consistency Regulations, N.Y.C.R.R. Title 19, Part 600, 600.3(d)].” (R.276; brackets in original; typographical error corrected.) The plain language in the referenced regulation, 19 N.Y.C.R.R. § 600.3(d), provides: “This Part shall not apply to [an] action for which a final environmental impact statement has been prepared or for which a determination has been made that the action will not have a significant effect on the environment, pursuant to 6 N.Y.C.R.R. Part 617 prior to the effective date of this Part.” 19 - 28 - N.Y.C.R.R. § 600.3(d). The Part 617 regulations, cross-referenced in section 600.3(d), implemented SEQRA’s EIS requirement. Entergy argues that the cited rule’s reference to the SEQRA regulations “does not make the EIS exemption track the exemption in the cross-referenced regulation.” (Resp. Br. 30.) But Entergy has no authority to support its interpretation, and NYSDOS—the agency that drafted the CMP and the Part 600 regulations—disagrees with Entergy’s reading. NYSDOS has explained that by referencing the exemption in section 600.3(d), the CMP intended to “adopt[] the same exemption” and thereby exempt actions for which final EISs “were prepared pursuant to 6 N.Y.C.R.R. Part 617 during the six-year interval between SEQRA’s September 1, 1976 effective date and the effective date of 19 N.Y.C.R.R. Part 600 on September 28, 1982.” (R.495.) Moreover, because the Indian Point reactors were initially licensed and operational prior to the effective dates of SEQRA and the CMP, their initial operating licenses were not subject to review under either regulatory regime. (See Point A(3).) The CMP’s exemptions were thus irrelevant to Indian Point in 1982 when the CMP was approved, and are irrelevant to the license renewal application now. - 29 - Even if the second exemption were relevant to Indian Point, that exemption referenced a citation to SEQRA’s EIS regulations, not NEPA’s analogous EIS requirement. By incorporating a reference to SEQRA’s regulations for EIS preparation while not referencing NEPA’s, the CMP’s drafters evidenced their intent not to include NEPA EISs in the second exemption. The fact that the exemptions are located in a section entitled “Special Federal Program Requirements” does not extend the CMP exemptions across the board to all “federal projects” as Entergy contends (see Resp. Br. 32). The federal requirements to which the section heading refers—national interest in planning for and siting facilities, uses of regional benefit, consistency review of federal actions, and public participation—are requirements imposed by the CZMA and its regulations on state coastal management programs,10 and are cited in the CMP’s text (see R.276). Each of those requirements is discussed 10 See 15 C.F.R. § 923.52(a) (coastal management program must provide for adequate consideration of national interest in siting facilities of greater than local significance); 15 C.F.R. § 923.12 (coastal management program must not unreasonably restrict or exclude land and water uses of regional benefit); 15 C.F.R. § 923.53 (coastal management program must include procedures to implement federal consistency requirements); 15 C.F.R. § 923.55 (coastal management program must provide for full participation by interested public and private parties). - 30 - in turn later in the section. (See R.276-302.) The CMP’s time-limited exemptions applied to consistency review procedures, one of the CZMA’s federally-required components incorporated into the CMP. (R.276.) See 16 U.S.C. § 1456(c)(3)(A); 15 C.F.R. § 923.53. Apart from the fact that the general section heading does not substantively limit the exemption set forth later in the document, the second exemption is not a “null set” (see Resp. Br. 32) because facilities frequently require both federal and state approvals. See n.9 above; see, e.g., Tappan Zee Hudson River Crossing Project, Joint Record of Decision, available at http://www.newnybridge.com/documents/rod/00record-of-decision.pdf (last visited Feb. 16, 2016). In sum, NYSDOS’s interpretation of the second exemption is reasonable. Applying the deferential standard of review, it must therefore be sustained. CONCLUSION For the reasons set fo:r;th above and in respondents' opening brief, the Appellate Division's order should be reversed. Dated: Albany, New York February 16, 2016 BARBARAD. UNDERWOOD Solicitor General ANDREW D. BING Deputy Solicitor General FREDERICK A. BRODIE Assistant Solicitor General LISA M. BURIANEK Assistant Attorney General, Environmental Protection Bureau of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondents-Appellants By: a~~...c... FREDERICK A. B.RODIE Assistant Solicitor General The Capitol Albany, New York 12224 Telephone: (518) 776-2317 Facsimile: (518) 915-7724 Reproduced on Recycled Paper - 31 -