Entergy Nuclear Generation Co. v. United States
130 Fed. Cl. 466
| Fed. Cl. | 2017Background
- Boston Edison contracted with DOE in 1983 under the Standard Contract, which obligated DOE to begin disposing of Pilgrim Nuclear Power Station spent nuclear fuel (SNF) by 1998; DOE did not perform.
- In 1999 Boston Edison sold Pilgrim to Entergy; the sale transferred post-closing rights to Entergy but reserved to Boston Edison claims "accrued as of the Closing Date."
- Boston Edison previously sued for diminution-in-value and obtained a trial award later altered on appeal; the Federal Circuit held prospective decommissioning damages were not then recoverable and did not decide rights that postdate decommissioning.
- This court later dismissed Boston Edison’s decommissioning-related claim without prejudice, explicitly allowing refiling when decommissioning-related mitigation costs are incurred from the decommissioning fund.
- Boston Edison sued in May 2016 asserting damages are now ascertainable because Entergy has announced a 2019 shutdown; Entergy and the government presented evidence that Pilgrim remains operational, no decommissioning activities have begun, and no withdrawals for decommissioning or SNF management have been made from the decommissioning trust.
- The court held an evidentiary hearing, reviewed NRC rules limiting use of decommissioning funds for SNF planning, and concluded Boston Edison’s claim is unripe because decommissioning (and fund withdrawals for SNF costs) has not begun.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ripeness / ascertainability of Boston Edison’s decommissioning damages | Boston Edison: decommissioning has begun (Entergy’s 2015 notice and planned 2019 shutdown) so damages are now ascertainable and ripe. | U.S.: claim is unripe because Entergy has not incurred decommissioning SNF costs from the decommissioning fund; prior SNF storage costs do not render Boston Edison’s claim ripe. | Held: Claim not ripe. Decommissioning has not begun and no decommissioning-fund withdrawals for SNF have occurred; dismiss without prejudice. |
| Whether prior SNF storage expenditures make Boston Edison’s claim ripe | Boston Edison: prior SNF-related activity supports ripeness. | U.S.: ripeness depends on costs incurred as a consequence of decommissioning, not on unrelated operational SNF costs. | Held: Prior SNF costs for ongoing operations do not make Boston Edison’s post-decommissioning claim ripe. |
| Standing / assignment of post-sale rights | Boston Edison: reserved rights to certain claims; may refile when damages are incurred. | U.S.: argues Boston Edison assigned post-sale rights to Entergy and lacks standing. | Held: Court previously rejected government’s standing/assignment arguments; not re-ruled here. |
| Statute of limitations (accrual) | Boston Edison: limitations haven’t run because damages were not ascertainable until decommissioning-related costs are incurred. | U.S.: argues limitations ran earlier (by 2005). | Held: Court previously held statute does not begin to run until corresponding damages are actually incurred; not a basis to dismiss now. |
Key Cases Cited
- Boston Edison Co. v. United States, 64 Fed. Cl. 167 (2005) (initial trial decision addressing diminution-in-value claim)
- Boston Edison Co. v. United States, 67 Fed. Cl. 63 (2005) (partial consolidation and related rulings)
- Boston Edison Co. v. United States, 80 Fed. Cl. 468 (2008) (trial judgment on diminution and mitigation issues)
- Boston Edison Co. v. United States, 93 Fed. Cl. 105 (2010) (award for mitigation costs to Entergy)
- Boston Edison Co. v. United States, 658 F.3d 1361 (Fed. Cir. 2011) (Federal Circuit: prospective decommissioning damages not recoverable at time of sale; left unresolved post-decommissioning rights)
- Boston Edison Co. v. United States, 106 Fed. Cl. 330 (2012) (court denied dismissal with prejudice and reserved Boston Edison’s right to refile when decommissioning costs are incurred)
- Indiana Michigan Power Co. v. United States, 422 F.3d 1369 (Fed. Cir. 2005) (principle that prospective damages for anticipated future nonperformance are not recoverable in partial breach)
- Molins PLC v. Quigg, 837 F.2d 1064 (Fed. Cir. 1988) (ripeness requires a more concrete setting for nascent claims)
- Sommers Oil Co. v. United States, 241 F.3d 1375 (Fed. Cir. 2001) (standards for drawing inferences on motions to dismiss)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard for Rule 12(b)(6))
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Kam-Almaz v. United States, 682 F.3d 1364 (Fed. Cir. 2012) (pleading and inference standards in the Federal Circuit)