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Goodwin Procter Appellate Victory Allows Entergy to Continue Operating Massachusetts Power Plant

03.04.13

Goodwin Procter attorneys achieved a significant victory for client Entergy Corporation in the U.S. Court of Appeals for the First Circuit when, on February 25, the court rejected a challenge to Entergy’s 20-year renewal license to operate the Pilgrim nuclear power station in Plymouth, MA brought by the Commonwealth of Massachusetts to the Nuclear Regulatory Commission (NRC).

In 2006, Entergy applied to renew its 40-year operating license for Pilgrim, which was due to expire in June 2012. In connection with that application, the NRC was required by the National Environmental Policy Act (“NEPA”) to prepare an environmental impact statement (“EIS”) detailing the potential environmental risks from Pilgrim’s continued operation. Under NEPA, NRC also was required to supplement the EIS if new information should arise painting a “seriously different” picture of environmental impacts, in comparison to the information considered in formulating the EIS.

The EIS for Pilgrim was completed in 2007 and the evidentiary record in the license renewal proceeding closed, but the proceeding continued for some time thereafter. In March 2011, while proceedings were still underway, the earthquake and tsunami in Japan resulted in the well-publicized accident at the Fukushima nuclear power plant. The NRC reacted to the Fukushima incident by quickly ordering various safety upgrades at US nuclear facilities (including Pilgrim) and commissioning a task force to study the necessity of additional measures. The task force subsequently issued a report recommending further steps to improve emergency preparedness.

Massachusetts invoked the Fukushima incident in the ongoing administrative proceedings to argue that the Pilgrim EIS needed to be supplemented. The Commission, however, declined to reopen the administrative record or supplement the EIS, instead granting Entergy’s license renewal application. Massachusetts appealed.

The Goodwin team argued that the NRC had a rigorous process for identifying safety risks at Pilgrim and that there was no new information from the Fukushima accident suggesting that, with respect to Pilgrim, NRC had underestimated risks. The NRC also filed a brief supporting its issuance of the license, focusing on the Commonwealth’s failure to satisfy the NRC’s procedural standards for reopening a closed record.

In a unanimous decision, the First Circuit rejected the challenge to the Pilgrim license, agreeing that Massachusetts had failed to show that the Fukushima accident suggested a greater risk of accidents at Pilgrim than the NRC already had taken into account. The First Circuit also noted that any further safety measures identified by the NRC’s study of the Fukushima accident can be implemented by the NRC through separate regulatory mechanisms. With its decision, the First Circuit resolved all federal challenges to Entergy’s operation of Pilgrim.

The Goodwin Procter team was led by partners Kevin Martin, who argued the case on behalf of Entergy before the First Circuit, and Elise Zoli.