475 F.3d 83 (2nd Cir. 2007), 04-6692, Riverkeeper, Inc. v. U.S.E.P.A.

Docket Nº:04-6692-ag(L), 04-6693-ag(CON), 04-6694-ag(CON), 04-6695-ag(CON), 04-6696-ag(CON), 04-6697-ag(CON), 04-6698-ag(CON), 04-6699-ag(CON).
Citation:475 F.3d 83
Party Name:RIVERKEEPER, INC., Natural Resources Defense Council, Waterkeeper Alliance, Soundkeeper, Inc., Scenic Hudson, Inc., Save The Bay-People for Narragansett Bay, Friends of Casco Bay, American Littoral Society, Delaware Riverkeeper Network, Hackensack Riverkeeper, Inc., New York/New Jersey Baykeeper, Santa Monica Baykeeper, San Diego Baykeeper, Califor
Case Date:January 25, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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475 F.3d 83 (2nd Cir. 2007)

RIVERKEEPER, INC., Natural Resources Defense Council, Waterkeeper Alliance, Soundkeeper, Inc., Scenic Hudson, Inc., Save The Bay-People for Narragansett Bay, Friends of Casco Bay, American Littoral Society, Delaware Riverkeeper Network, Hackensack Riverkeeper, Inc., New York/New Jersey Baykeeper, Santa Monica Baykeeper, San Diego Baykeeper, California Coastkeeper, Columbia Riverkeeper, Conservation Law Foundation, Surfrider Foundation, State of Rhode Island, State of Connecticut, State of Delaware, Commonwealth of Massachusetts, State of New Jersey, State of New York, Appalachian Power Company, Illinois Energy Association, Utility Water Act Group, Pseg Fossil LLC, Pseg Nuclear LLC, Entergy Corporation, Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Stephen L. Johnson, in his official capacity as Administrator of the United States Environmental Protection Agency, Respondents.

Nos. 04-6692-ag(L), 04-6693-ag(CON), 04-6694-ag(CON), 04-6695-ag(CON), 04-6696-ag(CON), 04-6697-ag(CON), 04-6698-ag(CON), 04-6699-ag(CON).

United States Court of Appeals, Second Circuit.

January 25, 2007

Argued: June 8, 2006.

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Reed W. Super, Morningside Heights Legal Services, Inc., Environmental Law Clinic, Columbia University School of Law (Michelle Avallone, Julia Errea, Vivian Mills, Ian Dattner, Monique Mendez, Misti Duvall, Devon Knowles, Molly McOwen, Adam Orford, Scott Sneddon, on the brief; P. Kent Correll, of counsel), New York, N.Y. for Petitioners Riverkeeper, Inc., Natural Resources Defense Council, Waterkeeper Alliance, Soundkeeper, Inc., Scenic Hudson, Inc., Save the Bay-People for Narragansett Bay, Friends of Casco Bay, American Littoral Society, Delaware Riverkeeper Network, Hackensack Riverkeeper, Inc., New York/New Jersey Baykeeper, Santa Monica Baykeeper, San Diego Baykeeper, California Coastkeeper, Columbia Riverkeeper, Conservation Law Foundation, and Surfrider Foundation.

Tricia K. Jedele, Special Assistant Attorney General of Rhode Island, Providence, RI (Patrick C. Lynch, Attorney General of Rhode Island; Michael Rubin, Special Assistant Attorney General, Providence, RI; Richard Blumenthal, Attorney General of Connecticut, Kimberly Massicotte and Matthew Levine, Assistant Attorneys General, Hartford, CT; Carl C. Danberg, Attorney General of Delaware, Kevin Maloney, Deputy Attorney General, Wilmington, DE; Thomas F. Reilly, Attorney General of Massachusetts, Andrew Goldberg, Assistant Attorney General, Boston, MA; Zulima V. Farber, Attorney General of New Jersey, Ellen Barney Balint, Deputy Attorney General, Trenton, NJ; Eliot Spitzer, Attorney General of New York, Maureen F. Leary, Assistant Attorney General, Albany, NY, on the brief), for State Petitioners Rhode Island, Connecticut, Delaware, Massachusetts, New Jersey, and New York.

Kristy A.N. Bulleit, Hunton & Williams, Washington, D.C. (James N. Christman, Elizabeth E. Aldridge, Hunton & Williams, Richmond, VA, on the brief), for Petitioners Appalachian Power Company, Illinois Energy Association, and Utility Water Act Group.

Karl S. Lytz, Latham & Watkins LLP, San Francisco, CA, (Christopher J. McAuliffe, PSEG Services Corporation, Newark, NJ; David J. Hayes, Cassandra Sturkie, Latham & Watkins LLP, Washington, D.C., on the brief), for Petitioners PSEG Fossil LLC and PSEG Nuclear LLC.

Chuck D. Barlow, Entergy Services, Inc., Jackson, MS, and Elise N. Zoli, Goodwin Procter LLP, Boston, MA, (Robert H. Fitzgerald, U. Gwyn Williams, Goodwin Procter LLP, Boston, MA, on the brief), for Petitioner Entergy Corp.

David S. Gualtieri, Cynthia J. Morris, and Jessica O'Donnell, United States Department of Justice (Sue Ellen Woolridge, Assistant Attorney General, John C. Cruden, Deputy Assistant Attorney General, on the brief; Leslie J. Darman, United States Environmental Protection Agency, of counsel), Washington, D.C., for Respondents.

Lisa Madigan, Attorney General of Illinois, Matthew Dunn, Chief, Environmental Enforcement/Asbestos Litigation Division, Ann Alexander, Environmental Counsel

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and Assistant Attorney General, Chicago, IL, for Amicus Curiae State of Illinois.

Jon Bruning, Attorney General of Nebraska, Lincoln, NE (David D. Cookson, Special Counsel to the Attorney General, Lincoln, NE; Troy King, Attorney General of Alabama, Montgomery, AL; Gregory D. Stumbo, Office of the Attorney General of the Commonwealth of Kentucky, Frankfort, KY; Wayne Stenehjem, Attorney General of North Dakota, Bismarck, ND; Paul G. Summers, Attorney General of Tennessee, Nashville, TN; Steve Carter, Office of the Indiana Attorney General, Indianapolis, IN, on the brief), for State Amici Curiae Nebraska, Alabama, Kentucky, North Dakota, Tennessee, and Indiana.

Nancy Elizabeth Olinger, Assistant Attorney General (Greg Abbott, Attorney General of Texas, Barry R. McBee, First Assistant Attorney General, Edward D. Burbach, Deputy Attorney General for Litigation, Karen W. Kornell, Chief, Natural Resources Division, on the brief), Austin, TX, for Amicus Curiae Texas Commission on Environmental Quality.

Russell S. Frye, FryeLaw PLLC, Washington, D.C., for Amicus Curiae American Petroleum Institute.

Jonathan F. Lewis, Clean Air Task Force, Boston, MA, for Amici Curiae Healthlink, Kentucky Resources Council, New England Clean Water Action, The Ohio Environmental Council, and Ohio Valley Environmental Council.

Lisa Heinzerling, Georgetown University Law Center, Washington, D.C., for Amicus Curiae OMB Watch.

Before STRAUB, SOTOMAYOR, and HALL, Circuit Judges.

SOTOMAYOR, Circuit Judge.

This is a case about fish and other aquatic organisms. Power plants and other industrial operations withdraw billions of gallons of water from the nation's waterways each day to cool their facilities. The flow of water into these plants traps (or "impinges") large aquatic organisms against grills or screens, which cover the intake structures, and draws (or "entrains") small aquatic organisms into the cooling mechanism; the resulting impingement and entrainment from these operations kill or injure billions of aquatic organisms every year. Petitioners here challenge a rule promulgated by the Environmental Protection Agency ("the EPA" or "the Agency") pursuant to section 316(b) of the Clean Water Act ("CWA" or "the Act"), 33 U.S.C. § 1326(b), 1 that is intended to protect fish, shellfish, and other aquatic organisms from being harmed or killed by regulating "cooling water intake structures" at large, existing power-producing facilities.

For the reasons that follow, we grant in part and deny in part the petitions for review, concluding that certain aspects of the EPA's rule are based on a reasonable interpretation of the Act and supported by substantial evidence in the administrative record, but remanding several aspects of the rule because they are inadequately explained or inconsistent with the statute, or because the EPA failed to give adequate notice of its rulemaking. We also dismiss for lack of jurisdiction one aspect of the petitions because there is no final agency action to review.

BACKGROUND

Our decision in Riverkeeper, Inc. v. EPA, 358 F.3d 174 (2d. Cir. 2004) ("Riverkeeper I"),

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which addressed challenges to the EPA's rule governing cooling water intake structures at new--as opposed to existing--facilities discusses at length the procedural and factual background of the rulemaking pursuant to section 316(b). We presume familiarity with Riverkeeper I and provide here only a brief overview of the statute and the various stages of the rulemaking.

These consolidated petitions for review concern a final rule promulgated by the EPA regarding the water that large, existing power plants withdraw from rivers, lakes, and other waterways of the United States to cool their facilities. See 40 C.F.R. § 125.91(a). This cooling process requires power plants to extract billions of gallons of water per day from the nation's waters, thereby impinging and entraining a huge number of aquatic organisms. Riverkeeper I, 358 F.3d at 181. Indeed, a single power plant can kill or injure billions of aquatic organisms in a single year. Id.

Cognizant of this problem, Congress in 1972 amended the CWA, 33 U.S.C. §§ 1251-1387, to regulate cooling water intake structures. See federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (1972). We have described Congress's regulation of such structures as "something of an afterthought," Riverkeeper I, 358 F.3d at 186 n.12, given that the directive appears in a section of the Act addressing the seemingly unrelated issue of thermal pollution, see cWA § 316(a), 33 U.S.C. § 1326(a). The Act, as amended, provides that "[a]ny standard established pursuant to section 1311 of this title [CWA section 301] or section 1316 of this title [CWA section 306] and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." CWA § 316(b), 33 U.S.C. § 1326(b).

The provisions of the Act cross-referenced in section 316(b) direct the EPA to issue rules regulating the discharge of pollution from existing point sources, CWA § 301, 33 U.S.C. § 1311, and new point sources, CWA § 306, 33 U.S.C. § 1316.2 As we noted in Riverkeeper I, "[w]hen the EPA established new source performance discharge standard[s] . . . it ought then to have regulated . . . intake structures ...." 358 F.3d at 185 (internal quotation marks omitted; emphasis in original). Put...

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