Entergy Nuclear Generation Company v. Massachusetts Department of Environmental Protection

(Massachusetts Appeals Court)

• Opposing an Unauthorized Expansion of Regulatory Authority

In this case NELF filed an amicus brief in support of Entergy Nuclear Generation Company, which operates the Pilgrim Nuclear Power Station in Plymouth (the only remaining nuclear station generating electricity in Massachusetts).  Entergy withdraws water from Cape Cod Bay in order to use the water to cool the power station.  The company commenced a declaratory judgment action to contest the claim of the Massachusetts Department of Environmental Protection (“DEP”) that DEP possesses the authority under the state Clean Waters Act to regulate these withdrawals.  Unlike DEP’s undoubted statutory authority to protect water quality by regulating discharges into surface waters of the Commonwealth, DEP possesses no apparent authority under the Act to regulate withdrawals of water.  Entergy succeeded in obtaining a declaratory judgment to that effect in the state trial court.  On appeal, DEP sought to overturn the judgment, justifying its regulations on the basis of an interpretation of the Act that ignored the plain language of the Act, discarded DEP’s own regulatory definitions, and misrepresented the relationship between federal and state environmental law.  The case therefore provided an excellent opportunity for NELF to advocate its position that statutes affecting property and business should be interpreted in a manner that is both reasonable and consistent with legislative intent.  In its brief, NELF systematically rebutted DEP’s legal and factual mischaracterizations by examining the definitions of a series of crucial terms as well as by countering DEP’s wayward interpretation of the provisions of the Act.  NELF also clarified interrelations of the state Act and the federal Clean Water Act and argued that, contrary to DEP’s contentions, federal law neither requires nor authorizes state regulation of water withdrawals.  In the policy section of its brief, NELF observed that DEP’s result-oriented arguments diverge greatly from the intent of the Act and had burdened Entergy’s operations with unnecessary costs and uncertainty.