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. RESPONDENTS-APPELLANTS’ BRIEF IN RESPONSE TO THE AMICUS BRIEF FILED BY THE AFRICAN AMERICAN ENVIRONMENTALIST ASSOCIATION AND NATIONAL BLACK CHAMBER OF COMMERCE 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: June 16, 2016 Reproduced on Recycled Paper i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ...................................................................... ii PRELIMINARY STATEMENT ................................................................. 1 ARGUMENT THE ISSUES RAISED BY AAEA AND NBCC ARE NOT PROPERLY BEFORE THE COURT ............................................... 1 CONCLUSION .......................................................................................... 4 ii TABLE OF AUTHORITIES FEDERAL STATUTES PAGE 16 U.S.C. § 1456(c)(3)(A) .................................................................................. 2 PRELIMINARY STATEMENT Respondents-appellants the New York State Department of State and Cesar A. Perales (together, NYSDOS) respectfully submit this brief, pursuant to this Court’s Rule 500.12(f), in response to the amicus curiae brief of the African American Environmentalist Association (AAEA) and the National Black Chamber of Commerce (NBCC). ARGUMENT THE ISSUES RAISED BY AAEA AND NBCC ARE NOT PROPERLY BEFORE THE COURT AAEA and NBCC oppose “any closure of the Indian Point 2 and Indian Point 3 nuclear power reactors,” and describe the adverse effects they allege would result “[i]f the Indian Point reactors are closed.” (Amicus Br. 2, 9; see also, e.g., id. at 5, 12, 15.) This Court, however, has been asked to decide only whether the proposed license renewal of the Indian Point nuclear power plants is exempt from coastal consistency review by NYSDOS. The key inquiry is whether NYSDOS has authority, under New York’s Coastal Management Program (CMP), to review the pending application for a 20-year renewal of Indian Point’s federal licenses for consistency with - 2 - the CMP – not whether Indian Point should be closed. (See Br. for Respondents-Appellants at 5-6; Br. of Petitioners-Respondents at 4-5.) In its response to Entergy’s request for a declaratory ruling, NYSDOS opined that the relicensing application was not exempt from review for consistency with the CMP. (Record on Appeal (“R.”) 494, 497.) Supreme Court agreed with that opinion. (R.15-17.) The Third Department disagreed and ruled that Indian Point as a whole was exempt from the CMP. (R.4609-4611.) If this Court reverses the Third Department and holds that NYSDOS retains authority to conduct a consistency review of Indian Point’s relicensing, as we have explained it does, the focus of the parties’ dispute may shift to the merits of that review. While NYSDOS’s consistency review is complete and a decision has now been issued, any challenge to that review must be addressed in a different proceeding, in accordance with the procedures set forth in the governing statutes and regulations. A dispute over the merits of NYSDOS’s consistency review decision might involve proceedings before the U.S. Secretary of Commerce, see 16 U.S.C. § 1456(c)(3)(A), or result in further court proceedings; it is not properly before this Court at this time. The issue - 3 - before this Court is whether the Department was authorized to conduct the consistency review in the first place. Neither the content nor the potential effect of NYSDOS’s consistency decision changes the issue before the Court in this appeal. Entergy recognized that expressly in two letters to the Court. (See Letter from Kathleen M. Sullivan, Esq. to John P. Asiello, Esq. dated Nov. 11, 2015 at 1-2; Letter from Kathleen M. Sullivan, Esq. to John P. Asiello, Esq. dated Dec. 1, 2015 at 1.) The Court itself declined to accept for filing NYSDOS’s November 6, 2015 decision when NYSDOS’s counsel submitted it pursuant to Rule 500.6 as a development affecting the appeal; the Court determined that it would note the fact of the decision but not the decision’s content. (See Letter of John P. Asiello, Esq. to counsel dated Dec. 16, 2015.) For the same reasons that led this Court to reject material concerning the merits of NYSDOS’s consistency review, this amicus brief likewise should not be considered. - 4 - CONCLUSION The Appellate Division’s order and judgment should be reversed for the reasons set forth in NYSDOS’s opening brief and reply brief. Dated: June 16, 2016 Albany, New York 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 By: FREDERICK A. BRODIE Assistant Solicitor General The Capitol Albany, New York 12224 Telephone: (518) 776-2317 Facsimile: (518) 915-7724 Reproduced on Recycled Paper