Matter of Entergy Nuclear Operation, Inc. v. New York State Department of State, 125 A.D.3d 21

Petitioners Entergy own and operate Indian Point Units 2 and 3, nuclear plants on the Hudson River with federal operating licenses originally issued in the 1970s and renewed by NRC applications in 2007.
New York’s Coastal Management Program (CMP), approved in 1982, requires federal-license applicants affecting the coastal zone to certify consistency with CMP enforceable policies; the CMP contains exemptions for certain "grandfathered" projects and projects for which a final environmental impact statement (EIS) was prepared prior to the CMP regulations taking effect.
Indian Point Units 2 and 3 had final EISs prepared under NEPA in 1972 and 1975 (pre-dating SEQRA and the 1982 CMP regulations).
Petitioners asked the NY Department of State (Department) for a declaratory ruling that the license-renewal applications are exempt from CMP consistency review; the Department declined to issue a declaratory ruling but issued an advisory opinion that the exemption did not apply because the EISs were not prepared under SEQRA.
Petitioners brought a combined CPLR article 78 proceeding and declaratory judgment action; Supreme Court upheld the Department’s advisory opinion and dismissed. The Appellate Division reversed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Indian Point Units 2 & 3 are exempt from CMP consistency review because final EISs were prepared before 1982	Petitioners: the CMP exemption refers to any final EIS prepared prior to the CMP regulations, so NEPA EISs predating 1982 trigger the exemption	Department: exemption applies only to EISs prepared under SEQRA, not NEPA	Held: Reversed — plain meaning covers pre-1982 EISs regardless of SEQRA; Indian Point units are exempt
Whether the Department reasonably required SEQRA as the source of the pre-1982 EIS	Petitioners: no statutory/regulatory basis to require SEQRA; SEQRA expressly allows use of NEPA EISs and SEQRA is modeled on NEPA	Department: CMP/SEQRA are intertwined and the exemption should be read to reference SEQRA EISs	Held: Department’s interpretation is irrational and conflicts with plain language; cannot be sustained
Applicability of SEQRA’s grandfathering (ECL 8‑0111(5)) to the renewal application	Petitioners: the projects themselves were grandfathered because final EISs existed pre-1982; only federal license renewal is pending before NRC	Department: argued SEQRA-related provisions could affect review	Held: ECL 8‑0111(5) inapplicable — no state action requiring SEQRA review exists here, only a federal license renewal

Brodsky v. United States Nuclear Regulatory Commn., 704 F.3d 113 (2d Cir.) (describing Atomic Energy Act’s comprehensive federal regulation of nuclear plants)
County of Rockland v. United States Nuclear Regulatory Commn., 709 F.2d 766 (2d Cir.) (federal preemption of state regulation of nuclear power plant licensing)
Duke Power Co. v. United States Nuclear Regulatory Commn., 770 F.2d 386 (4th Cir.) (NRC exclusive authority to license and regulate nuclear plants)
Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 733 F.3d 393 (2d Cir.) (federal licensing/regulatory authority over nuclear plants)
Matter of Marzec v. DeBuono, 95 N.Y.2d 262 (standard for upholding an agency interpretation of its regulations)
Visiting Nurse Serv. of N.Y. Home Care v. New York State Dept. of Health, 5 N.Y.3d 499 (an agency interpretation is invalid if it conflicts with plain regulatory language)
Matter of County of St. Lawrence v. Daines, 81 A.D.3d 212 (agency interpretation irrational when conflicting with plain meaning)
Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400 (SEQRA modeled on NEPA; cross‑use of EISs addressed)