Free Response - District Court of Federal Claims - federal

Case 1:98-cv-00484-JPW

Document 314

Filed 08/08/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Electronically Filed on August 8, 2007) ) ) ) ) ) ) ) ) ) ) )

NORTHERN STATES POWER COMPANY, Plaintiff, v. THE UNITED STATES, Defendant.

No. 98-484C (Senior Judge Wiese)

NORTHERN STATES POWER COMPANY'S RESPONSE TO DEFENDANT'S NOTICE OF ADDITIONAL AUTHORITY Plaintiff Northern States Power Company ("NSP") respectfully submits this response to Defendant the United States' (the "Government") notice of additional authority regarding a recent decision in another spent nuclear fuel case ­ Southern Nuclear Operating Co. v. United States, No. 98-614C, 2007 WL 2005164 (Fed. Cl. July 9, 2007). While the Government's notice points to two aspects of the Southern Nuclear decision that it claims support its positions in this case, the Government's notice ignores many other portions of the decision which are in sharp opposition to the Government's positions here and provide authority and persuasive support for NSP's claims in the instant case. 1 For example, Southern Nuclear adopts the precise framework for determining damages advocated by NSP, including a straightforward and simple substantial factor causation standard without the need for determining a "but for world." Southern Nuclear, 2007 WL 2005164, at *41-*43 (concluding The Government apparently has eschewed addressing these issues based on its motion to reconsider Senior Judge Merow's decision in the Southern Nuclear case, but it is highly unlikely that reconsideration will be granted given his similar determination in Yankee Atomic Elec. Co. v. United States,73 Fed. Cl. 249 (2006), appeal pending, Nos. 2007-5025, 2007-5026, 2007-5027, 2007-5031, 2007-5032, 2007-5033 (Fed. Cir.).
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Case 1:98-cv-00484-JPW

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that the Government "conflates mitigation and causation"). Additionally, Southern Nuclear awarded mitigation costs for the plaintiffs' internal labor costs. Id. at *49-*52. The Government extols one of the rulings in Southern Nuclear, which denied recovery to the plaintiffs in that case for their costs of Private Fuel Storage, LLC ("PFS"). However, the evidence presented during the trial in the instant case differs markedly from that discussed in Southern Nuclear. See Southern Nuclear, 2007 WL 2005164, at *55 (limiting decision to facts "on this record," like the determination in Indiana Michigan Power Co. v. United States, 422 F.3d 1369 (Fed. Cir. 2005)). While plaintiffs' witnesses in Southern Nuclear declared that PFS was speculative and unnecessary, see Southern Nuclear, 2007 WL 2005164, at *53, NSP's witnesses in the instant case steadfastly defended the necessity and utility of supporting PFS and no witnesses testified to the contrary. Unlike in Southern Nuclear, one of the Government's expert witnesses in the instant case acknowledged the causal link between DOE's breach and NSP's decision to pursue PFS, and the Department of Energy's 2001 report about NSP's Prairie Island nuclear plant acknowledged that PFS could provide a solution to NSP's spent nuclear fuel storage needs.

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NSP also respectfully disagrees with the Government's characterization of the similarities between the costs of capital damages in Southern Nuclear and the instant case. For example, Southern Nuclear denied recovery, inter alia, because the company incurring the capital costs ­ Southern Company ­ was not a party to the case and, unlike the instant case, the evidence in Southern Nuclear did not allow for a determination of the costs of capital or debt. Southern Nuclear, 2007 WL 2005164, at *59-*60. Dated: August 8, 2007 Of Counsel: Jay E. Silberg Daniel S. Herzfeld Jack Y. Chu PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, N.W. Washington, D.C. 20037 (202) 663-8000 (202) 663-8007 (fax) Kerry C. Koep XCEL ENERGY 414 Nicollet Mall, 5th Floor Minneapolis, MN 55401 (612) 215-4583 (612) 215-4544 s/ Alex D. Tomaszczuk by s/ Daniel S. Herzfeld Alex D. Tomaszczuk PILLSBURY WINTHROP SHAW PITTMAN LLP 1650 Tysons Boulevard McLean, VA 22102-4859 (703) 770-7940 (703) 770-7901 (fax)

Counsel of Record for Plaintiff Northern States Power Company

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