Boston Edison Co. v. United States

106 Fed. Cl. 330, 2012 WL 3245425
CourtUnited States Court of Federal Claims
DecidedAugust 10, 2012
DocketNos. 99-447C, 03-2626C
StatusPublished
Cited by8 cases

This text of 106 Fed. Cl. 330 (Boston Edison Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boston Edison Co. v. United States, 106 Fed. Cl. 330, 2012 WL 3245425 (uscfc 2012).

Opinion

OPINION AND ORDER

LETTOW, Judge.

The claims of Boston Edison Company (“Boston Edison”) and Entergy Nuclear Generation Co. (“Entergy”) relate to storage of spent nuclear fuel (“SNF”) and have a long history in this court. Boston Edison sold Entergy the Pilgrim Nuclear Power Station in Plymouth, Massachusetts in 1999, and both have sued the United States (“the government”) for breach of contract because the Department of Energy (“DOE”) has failed in its statutory and contractual obligations to dispose of the plant’s spent nuclear fuel. Since Boston Edison instituted suit in 1999 and Entergy filed its claims in 2003, their claims have been the subject of a partial consolidation, six published opinions by this court, two trials, and two appellate decisions by the Federal Circuit. Finally, however, the litigation appears to be nearing resolution and repose, subject to one last spasm.

Entergy and the government filed a stipulation for entry of final judgment in April 2012. Thereafter, because the stipulated terms were appropriate and acceptable, the court duly entered a final judgment reflecting the parties’ proposed terms and severed the partial consolidation previously ordered. See Order for Final Judgment, No. 03-2626C, April 25, 2012, ECF No. 218 (“Enter-gy Judgment Order”). In a strange rever-sionary twist, the motion currently before the court comprises the government’s request that the court reconsider that judgment. See Def.’s Mot. for Recons. & to Alter or Amend the Court’s April 25, 2012 Judgment (“Def.’s Mot.”). The practical thrust of the government’s motion looks to future claims that Entergy and Boston Edison might file when costs are incurred to mitigate the govern-[333]*333merit’s breach of the still-extant contract. To address the motion while preserving the parties’ rights, the court has called upon both Boston Edison and Entergy to respond to the government’s contentions, notwithstanding their evident exasperation at the government’s effort to recast a stipulated judgment. In addition, the court conducted a comprehensive hearing on July 16, 2012. With the results of those proceedings in hand, the court discusses in some detail the nature of the parties’ claims and, as will appear, leaves the final judgment for Entergy in place, dismisses Boston Edison’s ease without prejudice on prudential grounds, and explicitly preserves and provides for future claims by Boston Edison and Entergy, as contemplated by the Restatement (Second) of Judgments.

BACKGROUND

The facts of this litigation have been fully recounted in numerous prior decisions, so accordingly only a brief account is provided here. See Boston Edison Co. v. United States, 658 F.3d 1361 (Fed.Cir.2011) (“Boston Edison VI”); Boston Edison Co. v. United States, 93 Fed.Cl. 105 (2010) (“Boston Edison V”); Boston Edison Co. v. United States, 80 Fed.Cl. 468 (2008) (“Boston Edison III”); see also Joel Singer et al., 2011 Government Contract Law Decisions of the Federal Circuit, 61 Am. U. L. Rev. 1013, 1097-1101 (2012) (describing and analyzing the Federal Circuit’s decision in Boston Edison VI). The only major factual development since those opinions were written has been the Nuclear Regulatory Commission’s (“NRC”) issuance of a twenty-year renewal of Pilgrim’s operating permit. The renewal permit will allow the plant to remain in operation until 2032, when either its license might again be renewed or the plant might be decommissioned. See Hr’g Tr. 4:8-22 (July 16, 2012); see also NRC, Renewed Facility Operating License No. DPR-35, May 29, 2012 (on file with the court and also available on the NRC’s ADAMS Public Documents Interface, at pba-dupws.nrc.gov/docs/ML0910/ML091040423.-pdf).

On June 17, 1983, Boston Edison entered into a “Standard Contract” with DOE that implemented certain provisions of the Nuclear Waste Policy Act of 1982. See Boston Edison III, 80 Fed.Cl. at 469-71. Both the Nuclear Waste Policy Act and the contract made DOE responsible for collecting spent nuclear fuel from the Pilgrim plant no later than January 31, 1998. The government failed to perform at the set time, has not performed since, and is not expected to perform at any foreseeable time in the future. Because the existence of the contract is a necessary condition of the Pilgrim plant’s operating license, the contract cannot be terminated, and DOE’s non-performance has given rise to damages for partial breach, rather than total breach. See Boston Edison VI, 658 F.3d at 1366. DOE will remain liable for future damages as they are incurred. Id.

In 1997, Massachusetts enacted legislation requiring regulated utilities “to sell their electricity generation assets and operations or to functionally separate their generation operations from their transmission and distribution operations.” Boston Edison VI, 658 F.3d at 1364 (citing Mass. Gen. Laws ch. 164, § 1A (1997)). In response, Boston Edison entered into a settlement agreement with the Massachusetts Attorney General establishing a procedure for the company to sell Pilgrim. Through a competitive auction, Boston Edison selected a bid from Entergy and sold Entergy the Pilgrim plant, inventory, fuel, and land for $80 million. Entergy also accepted the decommissioning and SNF storage responsibilities for Pilgrim in return for a decommissioning fund valued at $428 million.1 A clause in the final purchase agreement gave Boston Edison the right to any claims “related or pertaining to the Department of Energy’s defaults under the DOE Standard Contract accrued as of the Closing Date, whether relating to periods prior to or following the Closing Date.” Id. at 1365. Entergy received rights to all claims post-dating Pilgrim’s transfer.

[334]*334The day before the sale’s closing in July 1999, Boston Edison brought suit in this court seeking damages for the government’s partial breach of the Standard Contract, alleging that “Pilgrim’s value was significantly diminished by DOE’s breach, [so] Boston Edison realized significantly less value in the sale.” Boston Edison Co. v. United States, 67 Fed.Cl. 63, 65 (2005) (“Boston Edison II”) (internal quotation marks omitted). In 2003, before that action progressed beyond preliminary stages, Entergy filed suit seeking damages for partial breach since the date of the sale. At the behest of the government, this court partially consolidated Boston Edison’s and Entergy’s suits in 2005 “for the limited purpose of addressing issues concerning (1) contract formation, (2) contract implementation through the date of sale of the Pilgrim Nuclear Power Station, and (3) Boston Edison Company’s diminution-in-value claim and the government’s attendant offset claim against Entergy.” Id. at 67. After consolidating the claims, trial was held and judgment was entered for Boston Edison for $40 million in diminution-in-value costs. This court found that DOE’s failure to perform its contractual obligations under the Standard Contract had forced Boston Edison to provide a larger decommissioning fund to Enter-gy “to account for [post-decommissioning] SNF storage costs stemming from DOE’s breach of the Standard Contract.” Boston Edison III, 80 Fed.Cl. at 491.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Charles D. Finch v. U.S. Banik, N.A.
2024 ME 2 (Supreme Judicial Court of Maine, 2024)
Boston Edison Company
Federal Claims, 2021
Beberman v. United States
133 Fed. Cl. 138 (Federal Claims, 2017)
Entergy Nuclear Generation Co. v. United States
130 Fed. Cl. 466 (Federal Claims, 2017)
Entergy Nuclear Indian Point 2, LLC v. United States
121 Fed. Cl. 667 (Federal Claims, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
106 Fed. Cl. 330, 2012 WL 3245425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boston-edison-co-v-united-states-uscfc-2012.