Entergy Nuclear Generation Co. v. Department of Environmental Protection
459 Mass. 319
Mass.2011Background
- Massachusetts DEP regulates water quality under the State Act, including CWIS regulations governing intake structures at industrial facilities.
- Entergy challenged the CWIS regulations as ultra vires, arguing the State Act does not authorize regulation of CWISs.
- Pilgrim Nuclear Power Station has a CWIS drawing Cape Cod Bay water and an existing joint EPA/DEP discharge permit that predates CWIS amendments.
- CWIS harms include impingement and entrainment of aquatic life; the CWIS regulations tie into protecting designated water uses and standards.
- The State Act creates a comprehensive water protection program with broad regulatory authority, including conditions beyond discharges.
- The court must decide whether DEP’s CWIS regulations are a valid exercise of State Act authority and address declaratory relief standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CWIS regulations are valid under the State Act. | Entergy argues State Act lacks CWIS authority. | Entergy contends authority is broader and includes CWISs to protect water quality. | Yes; CWIS regulations are valid under the State Act. |
| Whether declaratory relief is appropriate to challenge the CWIS regulations. | Entergy has standing to challenge agency authority affecting its CWIS. | Department contends no actual controversy or imminent injury. | Yes; declaratory relief appropriate to adjudicate agency power over CWISs. |
| Whether the State Act grants broad authority to regulate CWISs despite lack of explicit CWIS references. | Authority is not authorized absent explicit CWIS language. | Authority is implied to protect water resources and fulfill the Act’s purpose. | Yes; broad regulatory authority to regulate CWISs is implied and consistent with the Act. |
| Whether the department’s interpretation should be afforded deference given past statements and practice. | Abrupt shift in stance requires limited deference. | Past communications are ambiguous; longstanding oversight shown via Pilgrim permit. | Yes; deference afforded; interpretation reasonable under the State Act. |
Key Cases Cited
- Riverkeeper, Inc. v. United States Environmental Protection Agency, 475 F.3d 83 (2d Cir. 2007) (economic and ecological impacts of CWISs acknowledged; cited for environmental harm)
- Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498 (U.S. Sup. Ct. 2009) (supreme court discusses CWIS regulatory context)
- PUD No. 1 of Jefferson County v. Washington Dep’t of Ecology, 511 U.S. 700 (U.S. Sup. Ct. 1994) (State authority to impose conditions beyond discharge recognized)
- Cambridge Elec. Light Co. v. Department of Pub. Utils., 363 Mass. 474 (Mass. 1973) (regulations need not be explicit to carry out statutory scheme)
- Commonwealth v. Donohue, 452 Mass. 256 (Mass. 2008) (discusses scope of agency powers and statutory interpretation)
- Friends & Fishers of the Edgartown Great Pond, Inc. v. Department of Envtl. Protection, 446 Mass. 830 (Mass. 2006) (delegation and purpose of environmental protection statutes)