What can Andrew Cuomo actually do about Indian Point?

Indian Point. (hopefoote, via flickr)
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Andrew Cuomo has been talking about closing the Indian Point nuclear plant in Westchester for a long time—since shortly after Sept. 11, 2001, during his first, unsuccessful run for governor.

Last summer, Howard Glaser, a top aide to the governor, met in his Capitol office with executives from Entergy, the company that owns Indian Point, and told them that Cuomo was indeed determined to shut it down. And though Cuomo didn't make mention of Indian Point in his January State of the State address, its slate-grey domes provided the grim subtext of his proposal in an accompanying booklet for an “energy highway” that would help meet the “tremendous energy needs” downstate—increasing capacity in anticipation of losing the nuclear plant's considerable output.

The case for closing Indian Point isn't a hard one to make. The plant itself is a creaky anachronism: Its two functioning reactors date to the administrations of Richard Nixon and Gerald Ford, respectively, and one of them has received the highest earthquake-risk rating from the Nuclear Regulatory Commission that it's possible to get without being shut down. The recent earthquake and ensuing nuclear disaster in Fukushima, Japan, coupled with the recent discovery that Indian Point doesn’t just sit on the Ramapo Fault Plain but also near the Peekskill-Stamford fault line, has only heightened concern.

“The Fukushima disaster focused everyone, the public, everyone involved in this debate, on the real risks and costs of an accident at a nuclear power plant,” said Kit Kennedy, the clean energy counsel for the National Resources Defense Council, which is fighting for the plant's closure. “And Indian Point is an aging power plant that has experienced all sorts of issues over the last 40 years. The disaster in Fukushima reminds us that we can’t be complacent about those risks and we should be seeking to move to cleaner, safer power sources.”

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Cuomo, who once called Indian Point "a catastrophe waiting to happen" and stated in his campaign literature in 2010 that he would push for its closure, said recently, “I’ve had concerns about Indian Point for a long time … This plant in this proximity to New York City was never a good risk."

And yet it's not clear what he's in a position to do about it. The governor's justifiably vaunted abilities to leverage public opinion to achieve his aims, and to apply his powers of persuasion to legislators, might not help much: The nuclear power plant in question is regulated not by the state but by the federal government, and it is owned by the nation’s second-largest nuclear-energy company, which employs an army of well-paid lobbyists in both Albany and Washington. Indian Point may simply be too big for Andrew Cuomo to handle.

In 2010 and 2011, Entergy spent about $1 million on Albany lobbyists like Wilson Elser Moskowitz Edelman & Dicker, the Vidal Group, and Featherstonhaugh Wiley & Cline, according to public records. On the federal level, in 2010 and 2011, Entergy spent some $8.2 million on lobbyists, including the Breaux Lott Leadership Group and Peck, Madigan, Jones and Stewart, to make their case on energy issues with the legislature and executive branch.

Entergy has been just as unstinting in its spending on the legal front, which manifests itself in the company's ability to respond quickly and exhaustively to perceived threats to the company's interests at the state level.

In 2010, the state’s Department of Environmental Conservation decision denied Indian Point a water-quality certificate it needs under the federal Clean Water Act to continue pumping up to 2.5 billion gallons of water from the Hudson River into its plant about 35 miles north of New York City to both create steam and cool its reactors. The plant’s reactors, argued the D.E.C. in its decision, “cause significant adverse environmental impact upon aquatic organisms, particularly fish eggs, larvae, and fish.”

Entergy, not surprisingly, sought to nullify that decision by essentially going over the state's head, telling the federal regulatory commission that the state's decision was invalid, and proceeding with business as usual in the meantime.

“They have enormous legal resources at their disposal,” said Philip Musegaas, Hudson River program director for Riverkeeper, the environmental-legal organization (whose vice chair is Cuomo's former brother-in-law Robert Kennedy Jr.) which is involved in the water-certificate dispute. “Their lawyers outnumber us sometimes three to one.”

ON ANY GIVEN DAY, THERE'S A DECENT CHANCE THAT THE ELECTRICITY you’re using to charge your laptop comes from the massive facility situated on the Hudson River about 35 miles north of New York City. Inside its concrete domes, millions of neutrons bombard uranium atoms, releasing the energy inside them to build steam and spin turbines that send voltage down to Westchester and New York City.

The nuclear energy supplied by Indian Point is abundant—approximately 2,000 megawatts, or enough to power something like 2 million homes—cheap, and relatively clean to produce.

During air-conditioning season, New York City can use more than 11,000 megawatts, about a third of the entire state’s overall energy demand, according to Julia Frayer, an energy consultant at London Economics International. And there's currently not enough excess capacity, if you take Indian Point out of the equation, for the city to use that much energy without stressing the system and risking regular blackouts.

That's where the governor's energy highway comes in, which would form part of a new wave of energy sources that, over time, could replace the capacity that would be lost by shutting Indian Point. There’s a proposed transmission line down from Quebec, which would bring 1,000 megawatts into the city; the Hudson Project, which would string an up-to 660-megawatt line beneath the Hudson from New Jersey; and Cricket Valley Energy’s proposed 1,000-megawatt natural-gas plant to be built in Dutchess County.

There are also are possibilities for adding capacity through the retrofitting of existing power plants in the city, a process known as “repowering,” of which the governor made mention in the book accompanying his State of the State address this year.

“I think that they may be able to get by completely without Indian Point, but at what price, that’s really the ultimate question,” says Frayer, who is consulting with TDI on the Quebec-New York transmission line. “It could be unnecessary from a resource-adequacy perspective.”

In truth, resource adequacy is only one concern, and not necessarily the greatest one, in a big-picture context when it comes to energy in New York. There are also questions of pricing and air pollution, both of which are likely to go up if the nuclear facility is replaced by plants that burn fossil fuels.

“Its retirement will cause a substantial increase in air emissions under all the scenarios analyzed in our study,” said Charles River Associates in a report prepared at the behest of the Bloomberg administration, which opposes Indian Point’s retirement.

Rick Gonzales, the chief operating officer for the state entity charged with maintaining the electric grid, said in his testimony at an Assembly hearing on Indian Point: “The cost to generate electricity from an existing nuclear power facility is likely to be less than any other replacement generation option available. Therefore, the cost of electricity to serve New York may increase if Indian Point is retired. Since the mix of potential replacement supply is not known at this time, it is not possible to determine what the actual cost increases might be.”

But putting all those considerations aside—it is certainly possible to replace the facility's energy-generation capacity eventually, and the arguments about air pollution versus safety is ultimately a philsophical one about priorities—the most important near-term question may simply be whether the Cuomo administration has the ability to shut Indian Point down.

The Nuclear Regulatory Commission has the sole authority to renew, or not renew, nuclear reactor licenses. And they've historically been inclined to give Indian Point the benefit of the doubt. In August 2009, the commission made the following statement: “The Nuclear Regulatory Commission has issued its final safety evaluation report (SER) for the proposed renewal of the operating licenses for Indian Point Nuclear Generating Unit numbers 2 and 3, and concluded that there are no open items that would preclude license renewal for an additional 20 years of operation.”

It is rare, in any case, for the commission to shutter nuclear power plants.

“N.R.C. typically works very hard with an applicant to renew their license and would probably go through and suggest technical changes that they think may be necessary to make sure the re-licensing is safe and sufficient,” Frayer said.

Entergy doesn’t expect a decision until at least 2013.

The state does have at least one other lever in hand: that state D.E.C. water quality permit, which was first withheld by the David Paterson administration in 2009.

“The big issue is that if they don’t get their water permit in place, they can’t operate,” said Frayer.

Theoretically, Entergy could build what are called cooling towers or cooling ponds, but those come at a huge cost: “It’s so expensive its may actually prohibitive,” Frayer said.

A similar, but not completely analogous, conflict has been playing out in New England. Though the regulatory commission renewed the license for Entergy’s Vermont Yankee Nuclear Power Station, which powers about a third of the state’s energy needs, Vermont lawmakers passed a bill requiring state approval for Vermont Yankee to continue operating. And that state approval was not forthcoming.

The case went to court, and a federal judge sided with Entergy, ruling that the state had overstepped its bounds, and that the Vermont legislature had overstepped its bounds by focusing in its public hearings on the health affects of radiation, something he said fell squarely within the regulatory bounds of the federal government.

Vermont’s attorney general is now appealing.

If New York is to follow Vermont’s example, Governor Cuomo “had better be very careful about what he says,” advised Pat Parenteau, a Vermont Law School professor.

Parentau said if New York State focuses not on public health issues, but on its interest in protecting its water supply, its move to close Indian Point might pass muster in court.

“The state has clear authority under the Clean Water Act and the Supreme Court has upheld that a couple of times,” he said.

But even then, it will take a lot of time, and litigation, to get to the point where the plant is actually affected. The nuclear power facility can continue operating even after its licenses expire in 2013 and 2015, if the process is tied up in litigation. So while New York State is lining up its replacement sources of energy, Entergy will be able to continue squeezing whatever money it can from a power plant in which it has invested billions. And who knows where Andrew Cuomo will be by then?

"They’ll fight their relicensing case,” said Musegaas, of Riverkeeper. “They’ll fight the state permit case. It’s always cheaper for a corporation like Entergy to pay lawyers to litigate these things than to upgrade these facilities."

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