Powering down: An end to the long battle against Indian Point

Indian Point nuclear plant is closing. It's an ancient, decrepit, dangerous, uneconomical white elephant 35 miles from Manhattan on the banks of the Hudson River. It is too dangerous and too close to New York City to continue operation. But for 55 years, the plant defied common sense and survived as the poster child for the political power of the nuclear industry.

The story of Indian Point Energy Center is a testament to persistence and politics. The deal to close the plant was driven by Gov. Andrew Cuomo. Good for him, a promise kept. He's also the architect of public subsidies for failing upstate nuke plants, but never mind. He's done well, and truly.

There's a wonderful cautionary tale in the decades of work that culminated in Cuomo's closure announcement: Don't let the bastards get you down. And there's recognition to be offered to a lot of folks.

It began when the environmental movement was born on the Hudson River, when Pete Seeger and his Hudson River Sloop Clearwater organization campaigned against a different power plant proposed for the banks of the river. But folks soon turned to opposing Indian Point.

The reasons were obvious: No nuclear plant should be sited so close to a major city. Indian Point had the worst safety record in the nation, it's situated on an earthquake fault and, over time, it aged and began to fall apart. The Nuclear Regulatory Commission was a bad regulator, and it wasn't even a cheaper source of energy, once you calculated all the taxpayer subsidies: fuel costs, disposition of waste, insurance limits, free public water, etc.

But the struggle to bring these dangers to the fore was not easy. Forty years ago, people began to take a hard look at Indian Point, and I began serving in Westchester County and then in the state Legislature, representing communities within 10 miles of Indian Point. The power of public office enabled me to do a bunch of investigations into what was really going on at the plant, and to bring lawsuits to try to stop bad and dangerous stuff.

We started in 1978 with a look at the transport of low-level radioactive waste (not spent uranium fuel) through the streets of Westchester to a government facility in South Carolina. A little dangerous, but unnecessarily so. It was an insight into how government and some corporations were in cahoots to protect private interests, and it piqued my interest into examining things like the safety of the casks and storage pools for toxic spent fuel.

In 2000, there was a major explosion and radioactive leak at Indian Point, which at that time was owned by New York's beloved electric utility, Con Edison. The utility, it turns out, had failed to repair or maintain parts of the reactor generator that it knew were rusting away. Eventually the pipes burst and lots of radioactive steam escaped into the air. To make matters worse, Con Ed decided to charge the public for the costs of its own negligence. The Legislature and Gov. George Pataki agreed on a law that forced Con Ed, not ratepayers, to pony up for the repairs. Con Ed sued in response, and I began my history of courtroom appearances litigating Indian Point issues in federal and state court. This one eventually reached the U.S. Supreme Court, where we lost, in a truly awful decision.

In 2001, a 9/11 terrorist plane flew over Indian Point on the way to the World Trade Center. That focused attention of what was called the “evacuation plan,” and we began the first investigation into what was actually in it. The plan was a real phony – unworkable and buried by the Federal Emergency Management Agency. It was as dishonest a public document as any I've seen. The plan only applied to folks within 10 miles of the plant. The roads simply couldn't take the planned congestion. People in New York City were told to stay home and close the windows. We fought with then-FEMA Administrator Michael Brown (Remember Hurricane Katrina? “Brownie, you’re doing a heckuva job.” That guy.) and local officials who developed the plan. That led to the first official state investigation of Indian Point when Pataki commissioned former FEMA head James Lee Witt to look at the evacuation plan. Witt confirmed what we had known about the plan, but it never got any better.

By early 2002, we were amazed to learn that Indian Point was taking about 2.7 billion gallons of Hudson River water every day, using it to cool down the reactors and dumping back into the river untreated. The plant didn’t pay a cent for the industrial use of a public asset, and it did not have the required Clean Water Act permit to allow it to suck up all that water.

The owner of the plant, Entergy, had finagled with the Pataki administration to avoid the law, pointing to an application it filed for a water permit with the state Department of Environmental Conservation years ago. Rather than ruling on the application, the agency sat on the application and refused to rule, instead granting decades worth of temporary permits. We talked to the Hudson River enviros, especially Pete Seeger, and decided to sue DEC. Our theory was that the department had a legal obligation to rule on the permit application, approve or disapprove, and that sitting on it indefinitely and issuing interim permits was illegal. Seeger and I, and other local activists, served as the plaintiffs (I was also their lawyer), DEC as the defendant, and off we went.

And we won. The result was that DEC began legal consideration of the application and a gigantic set of hearings began, and continue to this day. DEC finally agreed that what Entergy was doing was illegal and recommended the requirement of a $1 billion cooling system to be paid for on Entergy’s dime. This would have long-term and powerful consequences.

But in 2007, we discovered that Indian Point was still not meeting fire safety requirements, and had defective fire insulation on the important electric cables that could shut down the reactor. Worse, the Nuclear Regulatory Commission knew about it and had given Indian Point a secret exemption from the fire safety requirements. Again, working with local folks, we sued. I was the plaintiff and lawyer, and the NRC was the defendant. That was the beginning of a nine-year odyssey in the federal court system that included the help of lawyer Dan Kramer and his crack pro bono team at Paul Weiss, a brush with then-U.S. Court of Appeals Judge Sonia Sotomayor, and five separate rulings by federal judges. Ultimately, we lost that fight.

Indian Point’s NRC operating license expired in 2013, after which the commission started relicensing hearings – and distorted the legal requirements for relicensing in the process. For example, the NRC disallowed any evidence that the plant violated its own safety requirements and focused only on whether certain plant valves were unacceptably old. But the environmental community rallied and fought the relicensing, tooth and nail. New York started a second permit process under its Coastal Zone Management Act powers that doubled down on the ongoing Clean Water Act process. All three are ongoing, and present a real problem for Entergy.

Lest all this activity appear to be the only work being done on Indian Point, or even the most important, we need to recognize the continuing and effective efforts of individuals and organizations like Riverkeeper, the National Resources Defense Council, and the Indian Point Safe Energy Coalition, among many others. These groups were on the front lines of grinding legal battles – keeping the political leadership on its toes, shaping public opinion, and watching the plant and its regulators like a hawk. Riverkeeper, especially, made Indian Point a signature issue, led by John Cronin, Alex Matthiessen, Paul Gallay and the ubiquitous Hamilton Fish, whose shrewd and consistent leadership was crucial. But the plant and the nuclear industry had strong protectors in politics and in government. As persistent as we were, and as right as we were on the legal issues, closing the plant seemed remote.

Thankfully, new forces emerged. As time passed, economic realities began to have a cumulative impact on Indian Point. The reactor grew old and began to fall apart, and the costs of repair and maintenance went through the roof. The looming additional costs of the cooling system that the DEC permit required added to the plant’s economic woes. The plunge in energy prices – largely a function of the proliferation of fracking – added revenue shortfalls to the increased costs. Meanwhile, Cuomo persisted in his promise to close the plant and Entergy made a decision to sell off its nuclear portfolio.

All of a sudden the handwriting was on the wall. Even with the government subsidies, Entergy was about to lose money on Indian Point, exacerbated by the uncertainty surrounding the various licensing and permit processes. The state was also awash in replacement electricity, and the phony assertions that New Yorkers would see major increases in their electric bills as a result of the plant’s closure was obviously untrue.

The tide had turned, and Cuomo pounced. His team, led by the departing Director of State Operations Jim Malatras, started highly secret and difficult negotiations with Entergy and the enviros. Entergy was tired of the fight, afraid of the economics and wanted to sell the plant to someone who would run it for its remaining few years. The enviros were facing a Trump Nuclear Regulatory Commission that was likely to relicense the reactors; they had insufficient resources to wage every legal battle, while having considerable leverage over the outcomes of the various permit fights.

The final deal is not perfect. The non-public details are crucial: Will taxpayers now have to pick up the costs of decommissioning? How soon will the plants actually close? What about new safety concerns like deteriorating bolts holding the reactor together? What happens to the spent fuel? Who can enforce the deal if Entergy gets frisky? Who will buy and operate the plant? None of this is chopped liver. But the plant is finally closing, and that's a very good thing.

The details of the knock-down-drag-out negotiations will eventually emerge. They're interesting, but the important lesson is less about the last battle and more about decades of persistent, principled work by lots of people.

It was never difficult to marshal evidence and argument about the health, safety and economic truths about Indian Point. Any fair-minded examination of how the plant was constructed and operated, how it was regulated, how it got subsidies and taxpayer benefits, and above all, how dangerous it is, would reach the same conclusion: close it.

Alas, evidence and argument are too often insufficient. Indian Point was the battlefield over which bigger issues loomed. After catastrophes at Three Mile Island, Chernobyl and Fukushima, who would control nuclear facilities? Could a state overpower the NRC? Can citizens force bureaucracies to reform? What will happen to folks whose jobs are attached to Indian Point? Is nuclear power inherently too dangerous, or is it possible to build newer and safe plants? What is the role for nuclear power in a non-carbon world?

None of those questions have been answered by the closing of Indian Point, nor have these larger battles been won. As often happens, the politics and the winning or losing of a particular fistfight becomes more important than the issues it raises. But lessons can be learned. For a generation of citizen activists, it's a good day, a rare victory. For cynics, it's a reminder that politicians can persist, force compromise and keep promises. For the public, things will be safer, and sooner than we had feared.

Richard Brodsky is a lawyer and a senior fellow at both Demos and NYU's Wagner School. He is also a former 14-term assemblyman from Westchester County.