First Circuit denies hearing in NextEra Seabrook challenge

The U.S. Court of Appeals for the First Circuit has ruled against a hearing in a challenge to a 20-year license extension for NextEra Energy’s (NYSE: NEE) Seabrook nuclear plant in New Hampshire.

The Nuclear Regulatory Commission (NRC) has said in recent months that it is going slow on the Seabrook license extension while it studies small concrete cracking issues at the plant.

The unsuccessful request for a hearing was brought by Beyond Nuclear and other parties, including the New Hampshire Sierra Club and the Seacoast Anti-Pollution League.

“We are pleased the First Circuit Court of Appeals upheld the NRC’s decision that Beyond Nuclear’s (et al) hearing request did not meet contention admissibility standards,” a NextEra spokesperson said in a Jan. 7 email to GenerationHub. “As the largest generator of energy from wind and solar in North America we believe in a balanced energy mix that includes nuclear as well as energy from renewable sources,” the spokesperson said.

Subsidiary NextEra Energy Seabrook had applied to the NRC in May 2010 to renew the license for Seabrook 1, which is a significant supplier for New England’s baseload power, according to the court decision.

The Seabrook plant is a pressurized water reactor located roughly 40 miles from Boston, Mass.

The appeals court panel noted that Seabrook is the region’s largest nuclear reactor, at 1,245 MW. It provides more than 8% of the actual generation of the Independent System Operator for New England (ISO-NE).

The Seabrook operating license had been set to expire in March 2030 and plant operators are allowed to apply for renewal 20 years in advance, the court noted.

Foes of the license renewal had previously sought a hearing on NextEra’s environmental report. The report concluded offshore wind power was not a reasonable alternative to license extension for the nuclear plant.

Beyond Nuclear and the other opposing parties had argued that NRC misapplied case law interpreting the National Environmental Policy Act (NEPA) and made certain other decisions that were arbitrary and capricious.

“Neither argument is persuasive,” the appeals court held.

The panel said that NextEra’s environmental report, among other things, addressed four alternative sources of energy to renewing Seabrook’s license that it deemed viable, reasonable alternatives: natural gas-fired generation; coal-fired generation; a new nuclear plant; and power purchases.

NextEra concluded that offshore wind would be intermittent. The company also said that offshore wind and the  energy storage mechanisms it would require, have not been sufficiently demonstrated in the commercial sector.

Beyond Nuclear argued that by requiring an alternative energy source to provide baseload power, the NRC defined the objective of the proposed actions so narrowly that it engaged in “outcome-controlled rigging.”

The court, however, differed with Beyond Nuclear on this point. “That is not the case, for reasons both of law and common sense. NEPA requires only consideration of reasonable alternatives,” the court held.

The court also was not persuaded by Beyond Nuclear’s argument that NRC was required to consider what alternatives might look like in 40 years.

The court said that Beyond Nuclear did not supply information to dispute NextEra’s conclusion that energy storage devices are too costly and baseload power generation by wind power would require such devices. Beyond Nuclear submitted an exhibit on storage potential, but not cost, the appeals court said.

The appeals court also said that an exhibit that Beyond Nuclear filed with NRC’s Atomic Safety and Licensing Board (ASLB) does little to establish the commercial viability of wind power off the coast of Maine.

The ASLB had agreed to admission of Beyond Nuclear’s contention, but was reversed by the NRC.

The First Circuit case was No. 12-1561.


About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at