James A. FitzPatrick nuclear plant in Oswego County. Photo: NCPR.org.

ALBANY – The state Supreme Court in Albany will allow to proceed a lawsuit filed by several environmental groups challenging billions of dollars in ratepayer subsidies to nuclear plants.

Acting Albany Supreme Court Justice Roger D. McDonough on Monday issued a decision denying five of the six objections raised by the New York Public Service Commission and the nuclear power plant owners  trying to dismiss the lawsuit, Matter of Hudson River Sloop Clearwater v. NYS Public Service Commission, 7242-16. The PSC and the nuclear plant owners argued that the claims brought against them lacked timeliness and standing.

The lawsuit filed in June by the groups—including the Hudson River Sloop Clearwater, the Nuclear Information Research Service and the New York Public Interest Research Group—argued that the PSC violated several state rules and procedures when it adopted plans in August 2016 to bail out three aging nuclear plants in the western part of the state as part of its Clean Energy Standard,  including the R.E. Ginna Nuclear Power Plant near Rochester, and the James A. FitzPatrick and Nine Mile Point nuclear plants in Oswego County, all of which are owned by a subsidiary of Chicago-based Exelon Corp.

Lawyers for the PSC argued that they followed the state’s rules in adopting the nuclear subsidy and that the organizations don’t have standing to sue. Keeping the nuclear plants online is better than the alternative of replacing them with fossil fuel-powered plants, the PSC lawyers  argued.

In April, average home ratepayers in New York began paying $2 more a month on their utility bills to subsidize the three plants. The Cuomo administration estimates that 12-year subsidy, slated to end in 2029, will cost roughly $2 billion. Meanwhile, opponents of the nuclear bailout claim that it could cost roughly $7.6 billion.

A spokeswoman for Exelon said in an emailed statement that “the Clean Energy Standard is positive for New Yorkers and the climate because it preserves the most cost-effective source of carbon abatement available, and we are pleased that the state Supreme Court dismissed the substantive environmental claims against it and are confident that the court will ultimately uphold the CES upon the review of the full administrative record.”

Manna Jo Greene, the environmental director of Hudson River Sloop Clearwater, however, compared McDonough’s decision to David and Goliath.

“We were opposed by the PSC, the nuclear energy plant owners, Entergy, Exelon and Constellation, and their phalanx of lawyers. But we prevailed and proved our issues are substantive and triable. It’s vitally important that the court fully adjudicate the reasons why these nuclear subsidies don’t belong in the Clean Energy Standard. It doesn’t serve the public interest or even follow the law that New York’s ratepayers are required to pay to keep these nuclear plants open, when they are no longer economically viable without a subsidy,” Greene said in a statement.

A spokesman for the PSC declined to comment on the decision. A spokesman for Constellation did not immediately respond to requests for comment.

Constellation, the subsidiary of Exelon Corp. that owns the three nuclear plants, is being represented by Jenner & Block and Albany-based Harris Beach. The PSC is represented in the lawsuit by the agency’s general counsel and the slew of petitioner plaintiffs are represented by attorneys at Rockland Environmental Group.

This story has been updated with comment from an Exelon Corp. spokeswoman.