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Jay Silberg Jay Silberg is like the fabled hedgehog. He knows one thing � but it’s a big thing. The head of Pillsbury Winthrop Shaw Pittman’s nuclear energy section, Silberg stands out as an expert on all aspects of nuclear energy law. “Anything having to do with the nuclear industry, I’ve done it over the years,” he says. “People say nuclear energy is such a narrow specialty, but what we do is cover the waterfront in terms of legal representation.” Over the course of his career, Silberg, 64, has guided nuclear power plant owners and operators through licensing, civil litigation, investigations, government contracts, mergers, legislative matters, and more. “The skills that distinguish Jay are his creativity and his ability to draw from his extensive knowledge of the industry to develop solutions to our problems,” says Michael Connelly, deputy general counsel of Xcel Energy Services Inc. “He has an understanding of not only the legal requirements but also the political and regulatory implications.” In recent years, Silberg has been heavily involved in litigation against the Department of Energy over spent nuclear fuel. The federal government has collected $15 billion from utilities to build a repository for the fuel, but has yet to open the Yucca Mountain site in Nevada due to political and scientific objections. Silberg was the lead lawyer in Indiana Michigan Power Co. v. DOE, the 1996 decision by the U.S. Court of Appeals for the D.C. Circuit establishing that the government had an unconditional obligation to dispose of the fuel starting in 1998. Now, about 64 utilities, seeking billions in damages, are suing DOE in the U.S. Court of Federal Claims for failing to meet that obligation. Silberg represents 19 of them. His case on behalf of Indiana Michigan, a subsidiary of the American Electric Power Co., was the first to go to trial. In May 2004, the judge declined to award damages but left open the question of future penalties. The company has appealed to the Federal Circuit. Not all spent-fuel disputes involve Yucca Mountain. Utah’s Skull Valley Band of Goshutes Indians struck a deal to store 40,000 metric tons of nuclear waste on their reservation. Silberg represents a consortium of eight utilities that agreed to lease the facility. But the state of Utah bitterly opposes the plan. The state Legislature has passed various roadblocks, including the requirement of a $2 billion cash bond and the criminalization of any contract in support of the project. Silberg’s client has challenged those laws as unconstitutional, winning victories in the U.S. District Court and the 10th Circuit. Most recently, Utah argued that an F-16 fighter jet might crash into the facility, releasing deadly radiation. In February, a panel of Nuclear Regulatory Commission (NRC) judges ruled that the likelihood of such a crash breaching the fuel casks was negligible. The state is appealing. Another current client is the Entergy Corp., owner of the two Indian Point nuclear plants in New York. The environmental organization Riverkeeper, represented by Robert F. Kennedy Jr., is seeking to shut the plants down, alleging problems with security and emergency planning. So far, Silberg has assisted Entergy in defeating those attempts before the NRC and the 2nd Circuit. Overall, appellate work has been a significant part of Silberg’s practice. He estimates he has argued more than 30 nuclear-related cases before courts of appeal. Silberg graduated from Harvard Law School in 1966. His first job as a lawyer was in the general counsel’s office of the U.S. Atomic Energy Commission. In 1969, he became the 17th lawyer to join the D.C. firm then known as Shaw, Pittman, Potts, Trowbridge & Madden (now the 900-lawyer Pillsbury Winthrop Shaw Pittman). One of Silberg’s early cases set a key precedent for the nuclear power industry. He and partner George “Fox” Trowbridge represented the Calvert Cliffs, Md., nuclear plant in Calvert Cliffs Coordinating Committee v. Atomic Energy Commission, a 1971 D.C. Circuit case that set the standards for preparing environmental impact statements for nuclear reactors. The decision, says Silberg, helped “create an enormous need for the kind of legal skills we were developing.” He went on to handle numerous licensing proceedings for nuclear plants. In the 1980s and 1990s, in the wake of the Three Mile Island accident and Chernobyl disaster, construction of new nuclear power plants dried up. But now the original licenses for nuclear power generation, granted for 40-year terms, are beginning to expire. Today Silberg is working on the second wave, assisting companies with NRC review to extend operations of their facilities. As energy costs continue to climb, Silberg observes that “nuclear power plants are becoming very desirable facilities.”

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