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 Appellate Division, Third Department No. 518510 Albany County Clerk’s Index No. 1535/13 Court of Appeals 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. BRIEF OF AMICUS CURIAE LAW PROFESSOR EMILY HAMMOND IN SUPPORT OF PETITIONERS-RESPONDENTS d PARTHA P. CHATTORAJ ALLEGAERT BERGER & VOGEL LLP 111 Broadway, 20th Floor New York, New York 10006 Telephone: (212) 571-0550 Facsimile: (212) 571-0555 Attorneys for Amicus Curiae Law Professor Emily Hammond Date Completed: September 1, 2016 i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................. ii INTEREST OF AMICUS CURIAE ........................................................................ 1 SUMMARY OF THE ARGUMENT ...................................................................... 2 ARGUMENT ........................................................................................................... 3 A. Nuclear Power and the Electric Grid ................................................. 3 B. The Environmental Attributes of Nuclear Power ............................... 5 CONCLUSION ...................................................................................................... 10 ii TABLE OF AUTHORITIES Cases Massachusetts v. EPA, 549 U.S. 497 (2007) .......................................................... 8 Statutes N.Y. Pub. Serv. Law § 164 (McKinney 2015) ....................................................... 5 Regulations Clean Air Act Carbon Pollution Standards for New, Modified and Restructured Power Plants, 80 Fed. Reg. 64,510 (Oct. 23, 2016) ........................... 7 Clean Air Act, 74 Fed. Reg. 66,496 (Dec. 15, 2009) .............................................. 8 Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014) ...................................................................................................... 10 Other Authorities Cal. Air Resources Bd., 2014 Edition: California GHG Emission Inventory (May 13, 2014) ........................................................................................ 6 James Conca, How Deadly is Your Kilowatt? We Rank the Killer Energy Sources, Forbes (June 10, 2012) ............................................................................................. 8 Energy Info. Admin., Net Generation by State by Type of Producer by Energy Source (Oct. 2015) ...................................................................................... 3 Energy Info. Admin., Monthly Nuclear Utility Generation by State and Reactor (Dec. 2015) ...................................................................................... 4, 7 Emily Hammond & David B. Spence, The Regulatory Contract in the Marketplace, 69 VAND. L. REV. 141 (2016) ................................................ 3, 4, 5, 8 iii Emily Hammond & Richard J. Pierce, Jr., The Clean Power Plan: Testing the Limits of Administrative Law and the Electric Grid, 7 GEO. WASH. J. ENERGY & ENVTL. L. 1 (2016) ................................................................................................... 6 Pushker A. Kharecha & James E. Hansen, Prevented Mortality and Greenhouse Gas Emissions from Historical and Projected Nuclear Power, 47 ENVTL. SCI. & TECH. 4889 (2013) .......................................................... 6 Nat’l Renewable Energy Lab., U.S. Dep’t of Energy, Life-Cycle Greenhouse Gas Emissions from Electricity Generation, NREL.gov, ............................................................................................................... 4 Nat’l Research Council of the Nat’l Acad., Hidden Costs of Energy (2012) ....................................................................................................................... 8 N.Y. Pub. Serv. Comm’n, CASE 15-E-0302 & 16-E-0270, Order Adopting a Clean Energy Standard (Aug. 1, 2016) ................................................. 8 N.Y. State Dep’t of Envtl. Conservation, Sea Level Rise: What is Expected for New York, at http://www.dec.ny.gov/energy/45202.html (last visited June 22, 2016) ...................................................................................... 9 N.Y. State Energy Planning Bd., The Energy to Lead: 2015 New York State Energy Plan Vol. I (2015) .............................................................................. 7 Patricio Silvo, ISO New England, Environmental Update, Planning Advisory Committee (Feb. 17, 2016) ...................................................................... 6 Samuel Brinton & Josh Freed, When Nuclear Ends: How Nuclear Retirements Might Undermine Clean Power Plan Progress, Third Way (Aug. 19, 2015)................................................................................................ 6 INTEREST OF AMICUS CURIAE Emily Hammond is a Professor of Law at The George Washington University Law School, and is a nationally recognized expert in energy law, environmental law, and administrative law, with a particular focus on nuclear power, the relationship between electricity fuels and the environment, and environmental regulation in the face of scientific uncertainty. Her scholarly articles have appeared in numerous top-ranked journals, including the Columbia Law Review, the Duke Law Journal, the Michigan Law Review, and the Vanderbilt Law Review. She is a co-author of one of the nation’s leading energy law texts, Energy, Economics and the Environment (2015) (with Joel B. Eisen et al.), and the environmental law textbook Environmental Protection: Law and Policy (7th ed. 2015) (with Robert L. Glicksman et al.), in addition to numerous book chapters and shorter works. A former environmental engineer, Professor Hammond brings technical fluency to issues at the intersection of energy and the environment, and she has frequently testified before Congress and appeared before federal agencies and professional organizations concerning such matters.1 Professor Hammond wishes to emphasize to the Court the critical importance of nuclear power to protecting public health and the environment, 1 No person other than the named amicus or her counsel authored this brief or provided financial support for it. 2 particularly in light of the imperative need to address and reduce human-caused climate change, and respectfully suggests that the Appellate Division properly concluded that Indian Point is grandfathered from review under New York’s Coastal Management Plan (CMP). Accordingly, Professor Hammond, who is not being compensated in this matter, submits this brief in support of Petitioners- Respondents Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Indian Point 3, LLC. SUMMARY OF THE ARGUMENT Nuclear power is the only source of electricity fuel that can generate large- scale, around-the-clock power without emitting dangerous pollutants like soot, mercury, or greenhouse gases (GHGs). Given its operating characteristics, any lost nuclear power is likely to be replaced by fossil-fueled power, setting back significant achievements in air pollution regulation and making clean energy goals all the more difficult to attain. Although Respondents-Appellants make much of nuclear power’s impacts on water bodies, they fail to acknowledge that (a) these impacts are already heavily regulated under the Clean Water Act (CWA); (b) environmental regulation of nuclear power has only strengthened since Indian Point was first licensed in the 1970s; and (c) the relative environmental benefits of nuclear power still make it far superior to competing electricity fuel sources. In 3 light of the climate-change imperative, New York simply cannot afford to lose Indian Point. ARGUMENT Nuclear power offers significant benefits to the environment while providing large-scale, reliable baseload power to the electric grid. In the United States as well as in New York, it provides more carbon-free energy than wind, solar, and hydropower combined. After natural gas, it is the second-largest source of power in New York and it accounts for nearly 60% of New York’s clean energy. See Energy Info. Admin. (EIA), Net Generation by State by Type of Producer by Energy Source (Oct. 2015) (reporting U.S. and New York generation by source through 2014). In terms of scale, reliability, and environmental attributes, no other power source is comparable. A. Nuclear Power and the Electric Grid The significance of nuclear power’s environmental contribution is best appreciated by understanding the mix of electricity fuel sources and how they contribute to the operation of the power grid. Electricity fuel sources can be categorized according to their operating characteristics, cost, and environmental attributes. See Emily Hammond & David B. Spence, The Regulatory Contract in the Marketplace, 69 VAND. L. REV. 141 (2016) (providing full analysis of each of these dimensions). 4 Regarding operating characteristics, the power grid must always meet demand – regardless of how that demand fluctuates on a daily or seasonal basis – or it will fail, resulting in brownouts, blackouts, or damage to the grid itself. Some sources of electricity are capable of running all or most of the time, providing the baseload power necessary to meet the always-present amount of demand. These sources, which include nuclear power, coal, some natural gas, and some hydro, can produce large quantities of power and run at or near full capacity for extended periods of time. Hammond & Spence, supra, at 164. By contrast, other non- emitting2 renewable energy sources like wind and solar are variable; they generate electricity only when the wind is blowing or the sun is shining – and in much smaller amounts than baseload sources. Id. These operating characteristics, combined with cost, are key components of electricity dispatch in New York’s competitive wholesale market, operated by the New York Independent System Operator (NYISO). Generally, nuclear power always runs—Indian Point 2, for example, ran at over 98% of its capacity in 2015. EIA, Monthly Nuclear Utility Generation by State and Reactor (Dec. 2015). 2 The term “non-emitting” refers to a source’s ability to generate power without simultaneously emitting GHGs or other air pollutants. The term does not capture a full life-cycle analysis; however, it bears emphasis that nuclear, hydro, wind, and solar are comparable in their overall low GHG emissions on a full life-cycle basis. See Nat’l Renewable Energy Lab., U.S. Dep’t of Energy, Life-Cycle Greenhouse Gas Emissions from Electricity Generation, NREL.gov, http://www.nrel.gov/docs/fy13osti/57187.pdf (summarizing methodology and results of Life Cycle Assessment Harmonization Project). 5 Energy sources are dispatched according to their marginal short-run costs, that is, the cost required to generate one additional unit of electricity: baseload coal and natural gas typically have the lowest such costs. Other sources, like some natural gas and hydro, can more easily ramp up and down to meet fluctuating demand but have higher marginal costs. Finally, at times of high demand, expensive, older plants might be brought online; these sources, which include older coal plants and even petroleum-fired plants, often have detrimental air quality impacts. EIA, Net Generation by State, supra (reporting New York’s 2014 generation by source). The variable sources like wind and solar have no fuel costs and thus low-to-zero marginal short-term costs, but as mentioned already, they cannot be dispatched on demand and thus require the other sources on the grid to ramp up or down in response to whether these variable sources are generating. Hammond & Spence, supra, at 164. To ensure both that the needs of the grid are met, and consumers are protected against sudden increases in particular fuels, maintaining a diverse generation mix is an important part of state electricity policy. See N.Y. Pub. Serv. Law § 164 (McKinney 2015) (including fuel diversity among evaluative criteria for electric generation siting approval). B. The Environmental Attributes of Nuclear Power Given nuclear power’s operating characteristics and scale, it is best compared to fossil-fueled power like coal and natural gas combined cycle, because 6 all of these sources can provide large amounts of steady, always-on baseload power. Indeed, both recent history and future projections anticipate that the fossil fuels would replace most of any retired nuclear power.3 E.g., Samuel Brinton & Josh Freed, When Nuclear Ends: How Nuclear Retirements Might Undermine Clean Power Plan Progress, Third Way (Aug. 19, 2015) (projecting natural gas as primary replacement fuel); Pushker A. Kharecha & James E. Hansen, Prevented Mortality and Greenhouse Gas Emissions from Historical and Projected Nuclear Power, 47 Envtl. Sci. & Tech. 4889 (2013) (same); Patricio Silvo, ISO New England, Environmental Update, Planning Advisory Committee, at 17 (Feb. 17, 2016) (reporting increased GHG emissions following closure of Vermont Yankee); see also Cal. Air Resources Bd., 2014 Edition: California GHG Emission Inventory 4 (May 13, 2014) (reporting increased GHG emissions following closure of San Onofre). Although the running characteristics of the baseload sources are comparable, their relative environmental attributes are significantly different. Only nuclear energy generates electricity without also emitting GHGs, criteria pollutants, or air toxics. Indeed, the climate change imperative makes retaining nuclear power all 3 In New York, hydropower also provides baseload. But because hydropower is unlikely to replace Indian Point should it be unable to renew its license, it is not considered in detail here. Note as well, that hydropower carries its own significant negative environmental externalities. For further discussion, see Emily Hammond & Richard J. Pierce, Jr., The Clean Power Plan: Testing the Limits of Administrative Law and the Electric Grid, 7 Geo. Wash. J. Energy & Envtl. L. 1, 13-14 (2016). 7 the more urgent. Nuclear power is the only large-scale source of clean baseload electricity. Consider these very conservative calculations: In 2015, Indian Point generated over 16,400 GWh of electricity.4 If that electricity were replaced by new natural gas combined cycle (NGCC) at an emission rate of 1030 lb CO2/MWh,5 then The annual increase in CO2 emissions would be 8.5 million tons. In and of itself, an increase in emissions is significant because it undermines climate-change mitigation needs. But lost nuclear power would also make it very difficult—if not impossible—for New York to achieve specific federal and state climate policy requirements. Under the federal Clean Power Plan (CPP), for example, EPA has set a target for New York to decrease CO2 emissions by 3.3 million tons by 2030.6 Without Indian Point, New York is set back more than twofold in achieving this target. Further, the State of New York is currently working to implement its State Energy Plan, which would decrease GHG emissions by 40% of 1990 levels by the year 2050. See N.Y. State Energy 4 Energy Info. Admin., Monthly Nuclear Utility Generation by State and Reactor (Dec. 2015) (providing 2015 historical generation values). Note that 2015 data is denoted preliminary. 5 This is the net-output emission rate promulgated by EPA for new NGCC power plants under the Clean Air Act. Carbon Pollution Standards for New, Modified and Restructured Power Plants, 80 Fed. Reg. 64,510, 64,515 (Oct. 23, 2016). It is a conservative estimate because in reality, some older sources with higher rates of CO2 emissions would also contribute to filling the gap left by Indian Point. 6 This reduction is from 2012 baseline level of 34.6 million tons. EPA, Clean Power Plan, State at a Glance: New York (Aug. 2015). 8 Planning Bd., The Energy to Lead: 2015 New York State Energy Plan Vol. I (2015).7 Without Indian Point, New York is further behind in meeting its own clean energy goals; see also N.Y. Pub. Serv. Comm’n, CASE 15-E-0302 & 16-E- 0270, Order Adopting a Clean Energy Standard, at 1-6 (Aug. 1, 2016) (describing New York’s clean energy goals and needs). Indian Point’s environmental benefits have concrete impact locally, not just in the state, national, or global arenas.8 It provides about 25% of the power used by New York City and Westchester County on an annual basis, and does so without emitting the harmful pollutants that fossil fuels impose on urban population centers.9 Moreover, climate impacts are expected to be disproportionately borne by low-income communities in urban centers. For example, warmer temperatures will be particularly hard on lower-income urban communities where it is more difficult to afford air conditioning. See 7 The State Energy Plan relies on CO2-eq, which includes GHGs additional to CO2, so it is not directly comparable to the CPP, which focuses on CO2 only. 8 Occasionally, opponents of climate change mitigation argue that individual sources of GHG make too little an impact to justify mitigation measures. As the Supreme Court has stated, however, what matters is “slow[ing] the pace.” Massachusetts v. EPA, 549 U.S. 497, 525 (2007). 9 In addition to GHGs, fossil fuel combustion also emits criteria pollutants like particulate matter, sulfur dioxide, and nitrogen oxides, which cause asthma, respiratory disease in children, premature death in people with lung or heart disease, and many other negative health effects; natural gas emits fewer of many of these pollutants than coal. See Hammond & Spence, supra, at 167; see also Nat’l Research Council of the Nat’l Acad., Hidden Costs of Energy (2012); James Conca, How Deadly is Your Kilowatt? We Rank the Killer Energy Sources, Forbes (June 10, 2012). 9 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66,525 (Dec. 15, 2009) (describing disproportionate impacts on city-dwellers and those without access to air conditioning, among others). It is particularly incongruous that the State would attempt to use New York’s CMP to halt Indian Point’s relicensing given the purpose of the CMP: to protect New York’s coast. The biggest risk to New York’s coast, of course, is climate- change-induced sea-level rise. See N.Y. State Dep’t of Envtl. Conservation, Sea Level Rise: What is Expected for New York, at http://www.dec.ny.gov/energy/45202.html (last visited June 22, 2016) (“Sea-level rise poses a significant risk to New York’s people, resources, and economy.”). Preserving nuclear power helps mitigate this risk. Shuttering nuclear power will only heighten it. No electricity fuel source is perfect; the parties in the instant appeal appear to agree that generating nuclear power requires cooling water and creates spent fuel. But these aspects of nuclear power are heavily and fully regulated under comprehensive regulatory regimes that have only increased in stringency since Indian Point opened. The Nuclear Regulatory Commission (NRC) must comply with the National Environmental Policy Act (NEPA) and its own implementing regulations in considering a license renewal application. 10 C.F.R. pt. 51. The 10 Clean Water Act (CWA), which is administered pursuant to a cooperative federalism structure by the New York State Department of Environmental Conservation,10 imposes strict requirements associated with Indian Point’s cooling water intake structures and discharges. Indian Point’s spent nuclear fuel is similarly highly regulated, and is currently stored onsite pursuant to detailed NRC regulations. See Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014). In this appeal, Respondents-Appellants rely heavily on the concept of “material change” in attempting to circumvent this already-robust regulatory framework, without acknowledging that Indian Point has only strengthened its environmental protections over the years. The only “material change” that should matter in this decade is the climate-change imperative. Simply put, losing Indian Point would cause a significant climate setback for the State of New York – increasing CO2 emissions to the detriment of the future. CONCLUSION The Appellate Division’s Order and Judgment should be affirmed. 10 Indeed, as noted by Entergy, New York’s Coastal Management Plan expressly contemplates that such matters are within the purview of the state’s water discharge permit system. (Br. for Pet’rs.-Resps. Entergy at 18.) 11 Dated: September 1, 2016 New York, New York Respectfully submitted, ALLEGAERT BERGER & VOGEL LLP By: ______________________________ Partha P. Chattoraj 111 Broadway, 20th Floor New York, New York 10006 (212) 571-0550 Attorneys for Amicus Curiae Professor Emily Hammond /s/ Partha P. Chattoraj