Background:

In the summer of 2013, local residents filed a lawsuit against the Town of Plymouth and Entergy Nuclear Generation Co. for violations of local zoning laws at the Pilgrim Nuclear Power Station. The lawsuit asserts that the town’s Building Inspector unlawfully approved Entergy’s massive new dry cask nuclear waste storage facility as an “as of right” use, without a special permit, and that Entergy worked around local zoning laws by segmenting the massive project into smaller parts.

According to the Plaintiffs’ (see document below), “Defendant Entergy thwarted the operation of these mechanisms by improperly segmenting the project for permitting purposes, and the Defendant Zoning Board of Appeals (“ZBA”) supported issuance of an as-of-right zoning permit for a concrete pad, ignoring Entergy’s new use of the site as a long term nuclear waste storage facility and the massive, expensive and complex construction and operation involved in this use.”

Since the case began in 2013, Entergy attempted various legal tactics to get the case thrown out of court and to limit the evidence that the citizen plaintiffs could use to prove their case. Despite this, the plaintiffs endured and the case finally began trial on August 8 at Land Court in Boston.

WEEK 1 – Standing:

The first week was the “standing” portion of the trial, meaning the plaintiffs’ legal team had to prove that their clients have the right to bring the case against the town and Entergy based on the impact to their property values caused by the nuclear waste storage facility and the fact that the town failed to require a special permit for the project.

All week long, witnesses were called to the stand to testify in support of or against the standing argument (including three of the citizen plaintiffs). Both the plaintiffs and Entergy also called expert witnesses to the stand to be questioned. For the plaintiffs, Dr. Stephen Sheppard, a Professor of Economics at Williams College with research experience in housing markets, testified over a course of three days that the Plaintiffs will suffer a statistically significant diminution of their property values due to Pilgrim’s nuclear waste storage facility. Entergy’s expert witness, Dr. George Tolley, a Professor Emeritus of Economics at the University of Chicago, Skyped in from Chicago to offer his opinion and rebuttal of Dr. Sheppard’s conclusions. According to the Plaintiffs’s Opposition to Defendant Entergy’s Motion for Mandatory Dismissal of Plaintiffs’ Claims, “Dr. Tolley’s testimony consisted of him telling the Court many times that he disagreed with Dr. Sheppard but rarely, if ever, being able to articulate why.”

At the end of week one, Entergy filed memo in support of their motion to dismiss the case based on the Plaintiffs’ not having standing. The Plaintiffs, in response, filed a motion in opposition. According to the Plaintiffs’ opposition, “Entergy and the Town have tried time and again to slam the door to justice on the Plaintiffs and to prevent them from obtaining a full and fair opportunity to have the legal merits of this case adjudicated. Entergy’s instant motion is only the latest attempt to deprive the Plaintiffs of their legal right to obtain zoning relief and the opportunity to pass through the standing gateway.”

Read: Defendant Entergy Nuclear Generation Co.’s Memorandum in Support of Its Motion for Mandatory Dismissal of Plaintiffs’ Claims →

Read: Plaintiffs’ Opposition to Defendant Entergy Nuclear Generation Co.’s Motion for Mandatory Dismissal of Plaintiffs’ Claims →

After considering both sides for several days, the Judge issued a formal order ultimately denying Entergy’s motion to dismiss the case. This means that it was proven that the plaintiffs have standing, and the trial can move forward to the next stage – the “merits” portion of the trial.

WEEK 2 – Merits:

The merits part of the trial began yesterday, August 22. The morning began with opening statements by both sides. Entergy’s council argued that Pilgrim’s dry cask nuclear waste storage facility is an “accessory use” or “part of the principal use itself” (electricity generation) and no way constitutes a new use – therefore a special permit is not needed. The argument was made that the facility could also be seen as an “advance in technology” from what was already there at the site.

On the other hand, the Plaintiffs argued that a special permit was required for 5 reasons:

  1. the light industrial district Pilgrim is sited in does not allow accessory uses,
  2. the special permit cannot support an accessory use,
  3. the long-term storage facility does not qualify as an accessory use since it will outlast the principle use of the site as an energy generation facility,
  4. the storage facility is a “new” method of storage, and
  5. the storage facility is not within the scope of Pilgrim’s original 1967 special permit.

Plaintiffs’ council stated, “the special permit cannot be open-ended and morphed into anything Entergy would like it to be.”

After opening statements, Entergy’s witness Charles Minott, Project Manager for Pilgrim’s nuclear waste storage project, was questioned by Entergy’s council and then cross-examined by Plaintiffs’ council. Several confidential documents were to be used for the cross-examination, so by late morning the courtroom was cleared of everyone except the legal teams and the witness on the stand. Questions around these confidential documents lasted throughout the rest of the day, and therefore, the door to the courtroom remained locked to observers and the other witnesses in line to testify.

The merits stage of trial continues into day two today, with several more witnesses waiting to take the stand.

Stay tuned for more updates from this week.

Final Decision:

The trial is scheduled to continue until August 26 and the court will likely issue a decision sometime this fall. Both sides have the option to appeal the final decision.

Media coverage: