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Coalition Goes To Court To Get Green River Nuclear Reactor Decision Overturned



March 28, 2012

A coalition of environmental organizations, small business owners and concerned citizens from across Utah announced Wednesday that they had filed a complaint in District Court seeking to overturn the decision granting water rights to the proposed Green River nuclear reactors. 

Led by the nonprofits HEAL Utah and Uranium Watch, the plaintiffs argue that State Engineer Kent Jones failed to uphold state law when he gave Blue Castle Holdings approval to take more than 50,000 acre feet of water from the river to cool their nuclear power project. 

The suit, filed late Tuesday in Emery County, argues that Jones should have done much more in reviewing the water rights applications, including making sure that Blue Castle Holdings had enough money to complete the project, as state law requires. It also contends that the State Engineer failed to show the nuclear reactors won’t interfere with other water rights or harm the fragile Green River ecosystem, among other claims. 

Matt Pacenza, policy director of HEAL Utah, said he was pleased that a court will review the state engineer’s decision, now that the Herbert Administration has shown an affinity for controversial – and costly – nuclear power.

“Gov. Herbert has said he hasn’t yet made up his mind on nuclear power, but meanwhile his Administration approves water for the Green River nukes with only a cursory review,” he said. “We felt we had no choice but to go to court so that someone could actually take a close look a this project.”

Another issue the plaintiffs have is whether there is enough water in the Green River during drought periods to supply the reactors, says Sarah Fields, the Program Director of Uranium Watch, based in Moab.

“The State Engineer had an obligation to ask hard questions and take a close look at the withdrawal of so much Utah water for such a risky enterprise,” says Fields. “He did not do that.  He did not meet the minimal standard for the review of a water right appropriation."

HEAL Utah and Uranium Watch are joined by 16 other plaintiffs, including the organizations Utah Rivers Council, Living Rivers, and the Center for Water Advocacy. In addition, area businesses that make their living on the Green River – Moki Mac River Expeditions and Holiday River Expeditions – are among the plaintiffs. Lastly, concerned citizens from Green River, Moab, Salt Lake City and beyond joined in. 

The coalition behind the lawsuit has recently embarked on a fundraising campaign to help pay legal expenses, with events planned in coming months to seek support.

The plaintiffs actually filed two separate suits late Tuesday, one for each water right the State Engineer approved. One is from the Kane County Water Conservancy District; the other from the San Juan County district. A judge will likely combine the two cases into one, since the facts and legal issues are the same.

The suit seeks to reverse the state engineer’s unfounded decision, repeatedly taking him to task for failing to independently scrutinize Blue Castle’s claims. In the state engineer’s decision, he repeatedly acknowledges that the reactor project poses difficult issues, but he failed to grapple with them. Instead, he deferred the tough decisions to the U.S. Nuclear Regulatory Commission, the agency that will decide whether Blue Castle gets the license it needs to actually build the reactors. 

The State Engineer erringly approved the change application, not because he found there was significant evidentiary support for the Applicants’ claims, but because he presumed that the many unanswered questions would be addressed in the federal government’s permitting process,” the suit contends. “Essentially, the State Engineer deferred to other entities his statutory obligation to ensure that the nuclear project and its massive consumption of water will not detrimentally impact the natural stream environment, public welfare, existing water rights or public safety.”

The complaint was prepared by experienced water rights attorneys John Flitton and Lara Swensen of the Park City firm Flitton & Swensen.

One key issue raised in the suit is whether Blue Castle – a small startup founded by former Utah State Representative Aaron Tilton – has adequately proven it has the financial ability to complete the project, as Utah law requires. The company itself has said just getting the permits to build the project will cost $100 to $200 million, plus an estimated $13 to $16 billion to build the reactors.

That question has become particularly pressing over the past few weeks, since news broke in January that the only named investor behind Blue Castle – a New York hedge fund called LeadDog – was facing federal charges after allegedly swindling elderly investors.

“By going to court, we hope to find out something about Blue Castle's finances and discover who is behind this scheme,” says Pacenza. “The State Engineer was not troubled that Blue Castle got into bed with a firm under investigation for fraud. We are, and now we have a chance to finally find out more.”