Astorino Defies County Board in Filing Indian Point Suit

John Jordan | May 2017

Westchester County Executive Robert Astorino

WHITE PLAINS—If the Westchester County Board of Legislators wouldn’t take on Governor Andrew Cuomo and Entergy on the deal reached earlier this year to close Indian Point, Westchester County Executive Robert Astorino decided he would do it on his own.

Astorino announced on May 9th that he had filed suit against New York State, Entergy and others over the pending closure of the Indian Point Energy Center in Buchanan.

Astorino filed two lawsuits individually and in his capacity as Westchester County Executive, charging that New York State and Indian Point Nuclear Power Plant 2 and 3 operator Entergy Nuclear failed to comply with New York State’s environmental laws when it announced the closure of the power plants in January. Gov. Andrew Cuomo and Entergy announced on Jan. 9th a deal to shut down the Unit 2 reactor in April 2020. Unit 3 will be shut down in April of 2021. The Unit 1 reactor was permanently shut down in October 1974.

“Our lawsuit has nothing to do with the debate over nuclear energy,” said Astorino at a press conference at his office in White Plains. “It has to do with safety and the rule of law. Ultimately, the issue isn’t whether Indian Point stays open. It’s that any plan to close the plant must fully comply with the law.”

The Article 78 proceedings charge that Governor Cuomo, Entergy and environmental watchdog group Riverkeeper failed to comply with the New York State Environmental Quality Review Act when they reached the agreement but failed to study the economic impacts the closure will cause to Westchester and the region. The lawsuit seeks to invalidate the closure agreement until a full environmental review is conducted.

The second Article 78 filing challenges the state’s issuance of a State Pollutant Discharge Elimination System permit and a Water Quality Certification permit that were both issued to Entergy on Jan. 9, the day of the closure announcement.

The County Executive had announced in early April his administration’s intent to file litigation against New York State and others over the Indian Point closure. However, the Republican County Executive failed to secure any support from the Democratic majority of the County Board of Legislators to allow the lawsuit to be filed. The County Executive said that the litigation filed by him individually and as County Executive will not result in any taxpayer expense. Rather than be handled by county government legal staff, the case will be litigated by the Philip Halpern, managing partner of the White Plains-based law firm Collier, Halpern, Newberg & Nolletti, LLP. The County Executive noted that the county faced a deadline of Tuesday to file suit, while the second litigation regarding the permits has a deadline of Aug. 24, which could allow other interested parties to join the suit. He said there would be no costs to the county unless approved by the Board of Legislators.

“The closing of Indian Point will likely trigger catastrophic consequences, while creating a zombie property doomed to be a nuclear waste cemetery for the entombment of spent fuel rods for many decades if not generations,” Astorino said at a press conference in White Plains.

Among some of the issues Astorino said need to be addressed include whether sufficient energy sources will be available to replace the loss of 2,000 megawatts of electricity (which supplies roughly 25% of the current energy to nine million Westchester and New York City residents) and how much will electric bills rise due to the closure and how will that impact residents and businesses in the region. The County Executive also pointed to the $72 million in Payment in Lieu of Taxes losses that will be felt by Westchester County, the Town of Cortlandt, the Village of Buchanan and the 2,500-student Hendrick Hudson School District.

In response to local criticism of the surprise closure, Gov. Cuomo announced on Feb. 28 the formation of an Indian Point Closure Task Force to study the economic impacts the closure will cause.

Astorino was critical of Democratic county legislators for failing to get behind his call back in April to file suit. Majority Leader and Democratic legislator Majority Leader Catherine Borgia said in a prepared statement, “The County Executive’s political ambitions are clearly more important to him than the taxpayers of Westchester. He has once again made known his intent to use taxpayer-funded resources—without Board of Legislators Approval—for a frivolous lawsuit he knows we can’t win. Any unilateral attempt to use outside counsel on behalf of the taxpayers is in violation of our county’s charter. The surrounding communities are better served by bringing all sides together to work on real economic and environmental mitigation solutions; and that is what Democrats are focused on.”

John Jordan
Editor, Real Estate In-Depth