Ruling allows lawsuit against New York nuclear plant subsidies

January 30, 2018 09:04 PM

New York environmental activists celebrated a court victory that let them press their lawsuit against subsidies for the state’s nuclear power plants.

“Cleaner sources of energy exist and it's time to face that reality,” declared Manna Greene, Environmental Director of the environmental advocacy group Hudson River Sloop Clearwater, a plaintiff in the lawsuit.  “We want to see that money instead going into a rapid transition to a renewable energy economy."

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At issue was a component of Governor Andrew Cuomo’s initiative to have half the state’s electricity come from non-carbon emitting sources by 2030.  Part of that plan is the state’s “Clean Energy Standard” under which nuclear power plants, which generate 20% of New York’s electricity and emit no carbon dioxide, could receive “Zero Emission Credits.” 

In the lawsuit Hudson River Sloop Clearwater v. NYS Public Service Commission, Clearwater and other groups challenged those credits saying they would cost electricity customers $7.6 billion over 12 years.  

On January 22, a Supreme Court Judge in Albany rejected a motion by the plaintiffs in the lawsuit, the New York Public Service Commission and the owners of the nuclear power plants like the R.A. Ginna plant in Ontario, to dismiss the lawsuit.

The primary issue has been cost, explained Rochester environmental lawyer Dwight Kanyuck, because, while carbon free, electricity from nuclear power plants is far more expensive than juice from plants that do emit carbon dioxide, particularly coal and natural gas fired plants, making nuclear power plants unable to survive in a completely open market without help.

“They would close if they didn't have the financial support to continue to operate,” Kanyuck said.  “If they close, you've got to make the power up somehow. So, you could probably ramp up some gas. So you’re going to burn more carbon.  You're going to have carbon emissions.”

Instead of letting the nuclear chips fall, the Public Service Commission instituted the Zero Emission Credits to prop up the nuclear facilities, ensuring a reliable, carbon free source of “base load” electricity for New York’s grid.  “You're getting continued in-state generation of electricity, about 20% of the state’s electricity,” Kanyuck said, “and you're getting it with zero carbon emissions.”

Greene insisted the help is undeserved.  “It really does contradict the idea of the marketplace working,” she said.  “Just at the point where renewables are becoming extremely competitive, we are shifting ratepayer dollars into a stream that we disagree with."

Rather than give aid to the nuclear plants, Greene suggested the subsidy should go to speed the development of renewable energy sources like wind and solar in New York.  “The main issue is where our ratepayer dollars going to be directed?” she asked.  “Are they going to be directed to accelerate the transition to a renewable energy economy? Or are we going to reduce that possibility by putting ratepayer dollars into subsidizing nuclear plants?”

Not feasible, said a filing from the Pace Energy and Climate Center at Pace Law School, delivered to the court in the Hudson River Sloop Clearwater case, insisting that “There are not enough large-scale and customer-sited renewable resources currently available, or anticipated to come on-line in the near-term to meet the State Energy Plan’s emissions reductions goal.”

The Pace brief warns that if the state’s nuclear power plants close before enough renewable energy sources become available, the energy they delivered would likely be replaced by energy from carbon emitting fossil fuel fired facilities like gas and coal plants and concludes that “The Zero Emissions Credit system is a reasonable temporary bridge to support New York’s greenhouse gas and renewables goals.”

Kanyuck granted that funds used for Zero Emissions Credits could indeed be used for renewable sources instead but pointed to other issues preventing greater adoption such as design and permitting challenges and community resistance to projects like large scale wind farms.  “It's fair to say the subsidies are there for the renewables too,” he said.  “And there are other roadblocks to getting renewables rolled out.”

After announcing he would let the Hudson River Sloop Clearwater case proceed, the judge gave the parties 30 days to come up with a hearing to establish where the case goes next.   That could involve taking the dispute to trial or the defendants could take their request that the lawsuit be dismissed to an appeals court, Kanyuck said.   


Charles Molineaux

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