Free Notice of Additional Authority - District Court of Federal Claims - federal

Case 1:98-cv-00484-JPW

Document 313

Filed 08/02/2007

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) NORTHERN STATES POWER COMPANY, ) ) Plaintiff, ) ) v. ) No. 98-484C ) (Senior Judge Wiese) UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) DEFENDANT'S NOTICE OF ADDITIONAL AUTHORITY Defendant, the United States, brings to the Court's attention the recent decision in Southern Nuclear Operating Co. v. United States, No. 98-614C (Fed. Cl. July 9, 2007), another spent nuclear fuel case. The Court's decision in Southern Nuclear supports the Government's position that the claim of plaintiff, Northern States Power Company ("NSP"), that it is entitled to "cost of capital" damages is equivalent to a claim for prejudgment interest. In Southern Nuclear, the Court rejected plaintiffs' claims for "cost of capital" damages, which were premised in large part upon the same theory advanced in this case by NSP and upon testimony of the same expert, Kenneth Metcalfe, who testified in this case upon behalf of NSP. Slip op. at 65-71. The decision in Southern Nuclear also supports the Government's position that NSP's investment in Private Fuel Storage, LLC ("PFS"), is not recoverable. The Court noted that, in Indiana Michigan Power Co. v. United States, 422 F.3d 1369, 1376 (Fed. Cir. 2005), the United States Court of Appeals for the Federal Circuit had analyzed "PFS from [the Department of Energy's] perspective," and that the speculative nature and high costs of the PFS project were "the same" in both cases. The Court also noted, as we have argued here, that "any recovery

Case 1:98-cv-00484-JPW

Document 313

Filed 08/02/2007

Page 2 of 3

would require a finding that the retained equity interest, represented by the PFS investment, is of no value." Slip op. at 61-65. The Government has filed a motion for reconsideration of the decision in Southern Nuclear based upon issues other than those addressed above. The plaintiffs have not moved for reconsideration, and their time to do so has expired. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director

OF COUNSEL: JANE K. TAYLOR Office of General Counsel U.S. Department of Energy 1000 Independence Avenue, S.W. Washington, D.C. 20585 ALAN J. LO RE Senior Trial Counsel STEPHEN FINN JOSHUA E. GARDNER MARIAN SULLIVAN Trial Attorneys Commercial Litigation Branch Department of Justice 1100 L Street, N.W. Washington, D.C. 20530 August 2, 2007

s/Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director s/Andrew P. Averbach ANDREW P. AVERBACH Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tele: (202) 353-0527 Fax: (202) 305-2118 Attorneys for Defendant

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Case 1:98-cv-00484-JPW

Document 313

Filed 08/02/2007

Page 3 of 3

CERTIFICATE OF FILING AND SERVICE I hereby certify that on this 2nd day of August, 2007, a copy of "DEFENDANT'S NOTICE OF ADDITIONAL AUTHORITY" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/Andrew P. Averbach