[Albany, NY – January 23, 2018] Two weeks after the Federal Energy Commission rejected a Department of Energy proposal for federal subsidies to prop up uncompetitive nuclear plants , the New York State Supreme Court in Albany County rejected motions to dismiss a lawsuit challenging billions in ratepayer subsidies for aging nuclear plants in New York’s Clean Energy Standard. The case is now headed to trial.

The suit was brought against the New York State Public Service Commission (PSC) and nuclear plant owners by the Hudson River Sloop Clearwater together with concerned citizens and citizens’ groups that include the Nuclear Information Research Service (NIRS), Beyond Nuclear, New York Public Interest Research Group (NYPIRG), Indian Point Safe Energy Coalition (IPSEC), Promoting Health and Sustainable Energy (PHASE), Goshen Green Farms and others. It charges that the PSC failed to follow the law in giving up to $7.6 billion in ratepayer money over 12 years (2017 to 2029) to aging New York nuclear plants, including James A. Fitzpatrick, R.E. Ginna, and Nine Mile Point Unit 1 and Unit 2.

PSC and the nuclear plant owners sought to dismiss the suit for various reasons, including timeliness, the standing of the plaintiffs, and other legal theories. But in a ruling issued yesterday, Judge Roger D. McDonough denied five of the six objections, and ruled the lawsuit will be fully heard, rather than preempted by the respondents’ objections. “The Court declines to entertain such discussions without the benefit of answers and the full administrative record,” wrote McDonough.

The Judge did agree with the respondents on one of their objections, ruling that the challenge to Indian Point’s eligibility for additional zero emission credit subsidies of about $2 billion was not ripe for adjudication yet, since the plant is not currently receiving them. Meanwhile, Fitzpatrick, Ginna and Nine Mile Point have already received an estimated $360 million in ratepayer subsidies over the last nine months. But denying the other five parts of the motion for dismissal guarantees the lawsuit will move forward and be heard on its merits.

“This is a David-vs.- Goliath victory,” said Manna Jo Greene, Environmental Director of Hudson River Sloop Clearwater. “We were opposed by the PSC, the nuclear energy plant owners, Entergy, Exelon, and Constellation, and their phalanx of lawyers. But we prevailed and proved our issues are substantive and triable. It’s vitally important that the court fully adjudicate the reasons why these nuclear subsidies don’t belong in the Clean Energy Standard. It doesn’t serve the public interest or even follow the law that New York’s ratepayers are required to pay to keep these nuclear plants open, when they are no longer economically viable without a subsidy.”

“This decision constitutes a major victory for citizen participation and the rule of law,” said said attorney John L. Parker, of Rockland Environmental Group (REG and its partners Parker, Susan H. Shapiro and Victorine Froehlich were the attorneys for the petitioners in the case). “Nobody is questioning the need for clean energy in the state of New York – a Clean Energy Standard is a vitally important part of efforts to combat climate change. The argument is about whether using billions of dollars of ratepayers’ money to bail out aging, uncompetitive nuclear plants is the way to do it. Now the Court will get to hear those arguments in full.”

“We have had grave concerns since the beginning about the way the Cuomo administration broke the rules and railroaded this $7.6 billion bailout through before New Yorkers even knew it was happening,” said Tim Judson of the Nuclear Information and Resource Service, a national environmental group that was involved in the ZECs case from the start and has watchdogged nuclear subsidies. “It’s a victory for democracy that we are going to get our day in court. Ratepayers across the state are being charged over $40 million every month, based on a decision the Public Service Commission improperly sprung on the public at the last minute. That’s not the way good decisions are made.”

“This is first and foremost a victory for the energy consumers of New York, who support affordability, energy efficiency, and renewable energy, and who do not want to see our hard-earned money squandered on dirty and dangerous nuclear power,” said Jessica Azulay, Program Director of Alliance for a Green Economy, which filed an amicus brief in the case. “When the Public Service Commission rammed through the costly nuclear subsidies being challenged in this case, these consumers and the non-profit public interest organizations that represent them were denied the legally allotted comment period and due process that are required when the government considers a major decision. We are grateful to the court for ensuring that these important issues will now be heard in the light of day.”