State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 11, 2014 518510 

________________________________

In the Matter of ENTERGY 

NUCLEAR OPERATION, INC., 

et al.,

Appellants,

v OPINION AND ORDER

NEW YORK STATE DEPARTMENT 

OF STATE et al.,

Respondents.

________________________________

Calendar Date: October 6, 2014

Before: Lahtinen, J.P., McCarthy, Egan Jr., Devine and 

 Clark, JJ.

__________

Quinn Emanuel Urquhart & Sullivan, LLP, New York City

(Kathleen M. Sullivan of counsel), Nixon Peabody, LLP, Albany

(Andrew C. Rose of counsel), Marcus V. Brown, Entergy Services,

Inc., New Orleans, Louisiana and William B. Glew Jr., Entergy

Services, Inc., White Plains, for appellants.

Eric T. Schneiderman, Attorney General, Albany (Denise A.

Hartman of counsel), for respondents.

__________

Clark, J.

Appeal from a judgment of the Supreme Court (Lynch, J.),

entered December 19, 2013 in Albany County, which dismissed

petitioners' application, in a combined proceeding pursuant to

CPLR article 78 and an action for declaratory judgment, to review

a determination of respondent Department of State denying

petitioners' request for a declaration that their power plants

are exempt from New York's Coastal Management Program.
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Petitioners are the owners and operators of nuclear power

plants in Westchester County that are known as Indian Point

Nuclear Generating Plant Unit No. 2 (hereinafter Indian Point 2)

and Indian Point Nuclear Generating Plant Unit No. 3 (hereinafter

Indian Point 3). 

"The Atomic Energy Act of 1954

'establishes a comprehensive regulatory

framework for the ongoing review of

nuclear power plants located in the United

States' and vests the Atomic Energy

Commission, and its successor agency, the

[Nuclear Regulatory Commission

(hereinafter NRC)], with broad regulatory

power to ensure 'that the generation and

transmission of nuclear power does not

unreasonably threaten the public welfare'"

(Brodsky v United States Nuclear

Regulatory Commn., 704 F3d 113, 116 [2d

Cir 2013], quoting County of Rockland v

United States Nuclear Regulatory Commn.,

709 F2d 766, 769 [2d Cir 1983], cert

denied 464 US 993 [1983]). 

The NRC is accordingly entrusted with exclusive authority "to

license and regulate the construction and regulation of nuclear

power plants" (Duke Power Co. v United States Nuclear Regulatory

Commn., 770 F2d 386, 388 [4th Cir 1985]; see Entergy Nuclear

Vermont Yankee, LLC v Shumlin, 733 F3d 393, 409 [2d Cir 2013]). 

The Atomic Energy Commission issued a 40-year operating license

for Indian Point 2 in 1973, and the NRC issued a similar license

for Indian Point 3 in 1975 (see 42 USC § 2133 [a], [c]).

Petitioners applied to the NRC for 20-year renewals of both

operating licenses in 2007. A complicating factor arose,

however, in that respondent Department of State (hereinafter

Department) created the New York State Coastal Management Program

(hereinafter CMP) after the original operating permits had been

issued. The Coastal Zone Management Act of 1972 (see 16 USC

§ 1451 et seq.) invited states in coastal areas to develop such

plans and submit them to the United States Secretary of Commerce
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for approval (see 16 USC §§ 1452 [2]; 1453 [12]; 1454, 1455). 

The Department was authorized to prepare the CMP in 1981

(see Executive Law § 913, as added by L 1981, ch 840) and, in

1982, the Secretary of Commerce approved the terms of the

completed CMP (see 47 Fed Reg 47056-02 [1982]). As a result of

that approval, 

"any applicant for a required Federal

license or permit to conduct an activity

. . . affecting any land or water use or

natural resource of the coastal zone [in

New York] shall provide in the application

to the licensing or permitting agency a

certification that the proposed activity

complies with the enforceable policies of

the [CMP] and that such activity will be

conducted in a manner consistent with" the

CMP (16 USC § 1456 [C] [3] [A]). 

If the state objects to the applicant's certification of

consistency, 

"[no] license or permit shall be granted

. . . unless the Secretary [of Commerce],

on his [or her] own initiative or upon

appeal by the applicant, finds, after

providing a reasonable opportunity for

detailed comments from the Federal agency

involved and from the state, that the

activity is consistent with the objectives

of this chapter or is otherwise necessary

in the interest of national security" (16

USC § 1456 [3] [A]; see 15 CFR 930.63,

930.64).

There is no dispute that Indian Point 2 and Indian Point 3,

which lie on the banks of the Hudson River, have an impact upon a

coastal area that is subject to the CMP (see 16 USC § 1453 [1];

Executive Law § 911; 19 NYCRR 600.2 [h]). Therefore, petitioners

would ordinarily be required to certify in their renewal

application to the NRC that the renewal of the operating permits
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would be consistent with the terms of the CMP. Petitioners

noted, however, that the CMP exempts from consistency review 

"(1) those projects identified as

grandfathered pursuant to [the] State

Environmental [Q]uality Review Act at the

time of its enactment in 1976; and (2)

those projects for which a final

[e]nvironmental [i]mpact [s]tatement has

been prepared prior to the effective date

of the Department of State [p]art 600

regulations [see Appendix A, DOS

Consistency Regulations, NYCRR Title 19,

Part 600, (600.3 [d])]."1 

The CMP further encouraged individuals to request clarification

if they were unsure as to whether a project fell within one of

the exemptions and, as such, petitioners requested a declaratory

ruling from the Department to assess if the renewal application

was exempt from consistency review (see State Administrative

Procedure Act § 204; 19 NYCRR 264.2). The Department declined to

issue a declaratory ruling because the CMP is not a formal

regulation, but did issue an advisory opinion finding that the

renewal application was not exempt. 

Petitioner then commenced this combined CPLR article 78

proceeding and declaratory judgment action seeking review of the

advisory opinion and a declaration that Indian Point 2 and Indian

Point 3 are not subject to the CMP. Supreme Court found that the

Department's advisory opinion was reviewable, upheld it as

rational and dismissed the proceeding.2 Petitioners now appeal.

1 The bracketed provision contains a typographical error in

the original text, but the parties concur that it is intended to

refer to 19 NYCRR 600.3 (4), which is now codified at 19 NYCRR

600.3 (d).

2 For purposes of this appeal, respondents do not dispute

that Supreme Court was empowered to review what the Department

deemed to be an advisory opinion.
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We reverse. As respondents correctly note, "[a]n agency's

interpretation of its regulations must be upheld unless the

determination is irrational and unreasonable" (Matter of Marzec v

DeBuono, 95 NY2d 262, 266 [2000] [internal quotation marks and

citation omitted]; see CPLR 7803 [3]). An example of such

irrationality exists where "a regulatory construction . . .

conflicts with the plain meaning of the promulgated language"

(Matter of Visiting Nurse Serv. of N.Y. Home Care v New York

State Dept. of Health, 5 NY3d 499, 506 [2005]; see Matter of

County of St. Lawrence v Daines, 81 AD3d 212, 218 [2011], lv

denied 17 NY3d 703 [2011]). Petitioners argue that the

Department's reading of the exemptions set forth in the CMP

conflicts with the plain meaning of those terms, and we agree. 

Petitioners particularly focus upon the second exemption in

the CMP, which exempts from consistency review "those projects

for which a final [e]nvironmental [i]mpact [s]tatement has been

prepared prior to the effective date of the Department of State

[p]art 600 regulations [see Appendix A, DOS Consistency

Regulations, NYCRR Title 19, part 600, (600.3 [d])]." 19 NYCRR

part 600 took effect in 1982. Indian Point 2 and Indian Point 3

went into operation prior to the State Environmental Quality

Review Act (see ECL art 8 [hereinafter SEQRA]) taking effect in

1976 and, as such, environmental impact statements were not

prepared under SEQRA. Final environmental impact statements were

prepared pursuant to the National Environmental Policy Act of

1969 (42 USC § 4321 et seq. [hereinafter NEPA]), however, and

statements were completed for Indian Point 2 and Indian Point 3

in 1972 and 1975, respectively. Accordingly, applying the plain

meaning of the language in the CMP, Indian Point 2 and Indian

Point 3 are exempt from consistency review. 

The Department nevertheless held that the exemption did not

apply to Indian Point 2 and Indian Point 3 because their final

environmental impact statements had not been prepared pursuant to

SEQRA. There is simply no basis in law for injecting such a

requirement. The Department noted that 19 NYCRR 600.3 (d) is

cited in the exemption and refers to final environmental impact

statements prepared under the SEQRA regulatory regime, but that

regime permits the use of final environmental impact statements

prepared under NEPA (see 6 NYCRR 617.2 [n]; 617.15 [a]; Philip
-6- 518510 

Weinberg, Practice Commentaries, McKinney's Cons Laws of NY, Book

171⁄2, ECL 8-0111). Indeed, SEQRA is modeled upon NEPA, and there

is no indication that the final environmental impact statements

prepared for Indian Point 2 and Indian Point 3 would not have

complied with SEQRA (see Matter of Jackson v New York State Urban

Dev. Corp., 67 NY2d 400, 414 [1986]). 

The Department further asserted that limiting the exemption

to statements prepared under SEQRA was required because SEQRA and

the CMP were "intertwined" with regard to coastal review. That

intertwining only came about, however, because the Legislature

directed the Commissioner of Environmental Conservation to amend

the SEQRA regulatory regime at the same time it authorized the

Department to create the CMP (see Executive Law § 919 [3], as

added by L 1981, ch 840). To put it differently, neither SEQRA

nor NEPA would have required a coordinated review of projects

affecting coastal areas completed prior to 1982. We thus agree

with petitioners that the Department's reading of the second

exemption offends the plain meaning of its language, is

irrational and cannot be sustained.3

As a final matter, ECL 8-0111 (5) is not pertinent to the

applicability of the CMP. ECL 8-0111 (5) (a) (ii) provides that

the requirements of SEQRA do not apply to "[a]ctions undertaken

or approved prior to [1976], except . . . [i]n the case of an

action where the responsible agency proposes a modification of

the action and the modification may result in a significant

adverse effect on the environment, in which case an environmental

impact statement shall be prepared with respect to such

modification." Actions, however, are "projects or activities

involving the issuance to a person of a lease, permit, license,

certificate or other entitlement for use or permission to act by

one or more [state or local] agencies" (ECL 8-0105 [4] [i];

see ECL 8-0105 [3]; 6 NYCRR 617.2 [b], [c]). As discussed above,

the projects at issue here are exempt from review under the CMP

because final environmental impact statements were filed for both

3 Nothing in our decision should be read as precluding the

Department from amending the CMP to require consistency review in

cases such as the one presently before us (see 16 USC § 1455 [e];

15 CFR 930.51 [b]). 
-7- 518510 

prior to 1982. There is accordingly nothing further for the

Department to review, with the only relevant activity being the

application for renewal of the operating permits before the NRC,

a federal agency. Thus, there is no action to which the

grandfathering provisions of SEQRA could apply.

In light of the foregoing, we need not reach petitioners'

remaining claims.

Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ., concur.

ORDERED that the judgment is reversed, on the law, without

costs, petition granted and it is declared that Indian Point

Nuclear Generating Plant Unit No. 2 and Indian Point Nuclear

Generating Plant Unit No. 3 are exempt from New York's Coastal

Management Program.

ENTER:

Robert D. Mayberger

Clerk of the Court