Cooling Water Intake Structure Coalition v. Center for Biological Diversity, 092718 FED2, 14-4645 (L)

Docket Nº:14-4645 (L), 14-4657 (CON), 14-4659 (CON), 14-4664 (CON), 14-4667 (CON)
Opinion Judge:LOHIER, CIRCUIT JUDGE
Party Name:COOLING WATER INTAKE STRUCTURE COALITION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ANDREW R. WHEELER, IN HIS OFFICIAL CAPACITY AS ACTING ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, [*] NATIONAL MARINE FISHERIES SERVICE, UNITED STATES FISH AND WILDLIFE SERVICE, Respondents. AMERICAN PETROLEUM INSTITUT...
Attorney:Russell S. Frye, FryeLaw PLLC, Washington, DC, for Petitioner Cooling Water Intake Structure Coalition. Fredric P. Andes, Jill M. Fortney, Barnes & Thornburg LLP, Chicago, IL; Jeffrey S. Longsworth, Barnes & Thornburg LLP, Washington, DC, for Intervenor-Petitioner American Petroleum Institute. Kr...
Judge Panel:Before: JACOBS, CABRANES, and LOHIER, Circuit Judges.
Case Date:September 27, 2018
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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COOLING WATER INTAKE STRUCTURE COALITION, Petitioner,

AMERICAN PETROLEUM INSTITUTE, UTILITY WATER ACT GROUP, ENTERGY CORPORATION, AMERICAN LITTORAL SOCIETY, ENVIRONMENT AMERICA, ENVIRONMENT MASSACHUSETTS, RIVERKEEPER, INC., NATURAL RESOURCES DEFENSE COUNCIL, INCORPORATED, DELAWARE RIVERKEEPER NETWORK, RARITAN BAYKEEPER, INC., DBA NY/NJ BAYKEEPER, HACKENSACK RIVERKEEPER, CASCO BAYKEEPER, SAVE THE BAY - NARRAGANSETT BAY, SCENIC HUDSON, INC., SIERRA CLUB, WATERKEEPER ALLIANCE, INC., SOUNDKEEPER, INC., SURFRIDER FOUNDATION, Intervenors-Petitioners,

CENTER FOR BIOLOGICAL DIVERSITY, LOUISIANA ENVIRONMENTAL ACTION NETWORK, CALIFORNIA COASTKEEPER ALLIANCE, HUMBOLDT BAYKEEPER, SUNCOAST WATERKEEPER, INC., PUGET SOUNDKEEPER ALLIANCE, Intervenors,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ANDREW R. WHEELER, IN HIS OFFICIAL CAPACITY AS ACTING ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, [*] NATIONAL MARINE FISHERIES SERVICE, UNITED STATES FISH AND WILDLIFE SERVICE, Respondents.

Nos. 14-4645 (L), 14-4657 (CON), 14-4659 (CON), 14-4664 (CON), 14-4667 (CON)

United States Court of Appeals, Second Circuit

September 27, 2018

Argued: September 14, 2017

Environmental conservation groups and industry associations petition for review of a final rule promulgated by the United States Environmental Protection Agency ("EPA") pursuant to section 316(b) of the Clean Water Act, establishing requirements for cooling water intake structures at existing facilities. The Petitioners also seek review of a May 19, 2014 biological opinion jointly issued by the United States Fish and Wildlife Service and the National Marine Fisheries Service at the close of formal Endangered Species Act consultation on the final rule. Because we conclude that both the final rule and the biological opinion are based on reasonable interpretations of the applicable statutes and sufficiently supported by the factual record, and because the EPA gave adequate notice of its rulemaking, we DENY the petitions.

Russell S. Frye, FryeLaw PLLC, Washington, DC, for Petitioner Cooling Water Intake Structure Coalition.

Fredric P. Andes, Jill M. Fortney, Barnes & Thornburg LLP, Chicago, IL; Jeffrey S. Longsworth, Barnes & Thornburg LLP, Washington, DC, for Intervenor-Petitioner American Petroleum Institute.

Kristy A.N. Bulleit (Andrew J. Turner, Todd S. Mikolop, Kerry L. McGrath, on the brief), Hunton & Williams LLP, Washington, DC, for Intervenors-Petitioners Utility Water Act Group, Entergy Corporation.

Reed W. Super, Edan Rotenberg, Super Law Group, LLC, New York, NY, for Intervenors-Petitioners Riverkeeper Inc., American Littoral Society, Casco Baykeeper, Delaware Riverkeeper Network, Hackensack Riverkeeper, Natural Resources Defense Council, Inc., Raritan Baykeeper, Inc. d/b/a NY/NJ Baykeeper, Save the Bay -Narragansett Bay, Scenic Hudson, Inc., Sierra Club, Soundkeeper, Inc., Surfrider Foundation, Waterkeeper Alliance, Inc., and for Intervenors Center for Biological Diversity, Louisiana Environmental Action Network, California Coastkeeper Alliance, Humboldt Baykeeper, Suncoast Waterkeeper, Inc., Puget Soundkeeper Alliance.

Eric E. Huber, Sierra Club, Boulder, CO, for Intervenor-Petitioner Sierra Club, and for Intervenors Center for Biological Diversity, California Coastkeeper Alliance, Humboldt Baykeeper, Louisiana Environmental Action Network, Suncoast Waterkeeper, Inc.

Charles C. Caldart, National Environmental Law Center, Seattle, WA, for Intervenors-Petitioners Environment America, Environment Massachusetts.

Perry M. Rosen, United States Department of Justice, Environment & Natural Resources Division, Environmental Defense Section, Washington, DC; Bridget Kennedy McNeil, United States Department of Justice, Environment & Natural Resources Division, Wildlife & Marine Resources Section, Denver, CO (Simi Bhat, United States Department of Justice, Environment & Natural Resources Division, Environmental Defense Section, Washington, DC, Clifford E. Stevens, Jr., United States Department of Justice, Environment & Natural Resources Division, Wildlife & Marine Resources Section, Denver, CO, on the brief; Richard T. Witt, Alexis Wade, United States Environmental Protection Agency, Office of General Counsel, of counsel), for Respondents.

Andrew K. Jacoby, Varadi, Hair & Checki, LLC, New Orleans, LA (Ann Brewster Weeks, Legal Director, Clean Air Task Force, Boston, MA, of counsel), for Amicus Curiae Clean Air Task Force.

Before: JACOBS, CABRANES, and LOHIER, Circuit Judges.

LOHIER, CIRCUIT JUDGE

In these consolidated cases, several environmental conservation groups and industry associations petition for review of a final rule promulgated four years ago, in August 2014, by the United States Environmental Protection Agency ("EPA") pursuant to section 316(b) of the Clean Water Act ("CWA"), 33 U.S.C. § 1326(b), establishing requirements for cooling water intake structures ("CWISs") at existing regulated facilities, see National Pollutant Discharge Elimination System-Final Regulations to Establish Requirements for Cooling Water Intake Structures at Existing Facilities and Amend Requirements at Phase I Facilities, 79 Fed. Reg. 48, 300 (Aug. 15, 2014) (codified at 40 C.F.R. pts. 122, 125) ("Final Rule" or "Rule").[1] The Petitioners also seek review of a May 19, 2014 biological opinion jointly issued by the United States Fish and Wildlife Service ("FWS") and the National Marine Fisheries Service ("NMFS," and, together with the FWS, the "Services") at the close of formal Endangered Species Act ("ESA") consultation on the Final Rule. The Government continues to defend the Rule today. Because we conclude, among other things, that both the Rule and the biological opinion are based on reasonable interpretations of the applicable statutes and sufficiently supported by the factual record, and because the EPA gave adequate notice of its rulemaking, we DENY the petitions for review.

BACKGROUND

To start, we describe CWISs; their general impact on the environment; and the statutes, regulations, and rules relevant to these petitions. We then provide an overview of the relevant regulatory and procedural history and a summary of the arguments advanced in the various petitions before us.

1. Cooling Water Intake Structures

To dissipate waste heat, power plants and manufacturing facilities use CWISs to extract large volumes of water-nearly 75 trillion gallons annually- from nearby water sources. The force of inflowing water can trap, or "impinge," larger aquatic organisms against the structures and draw, or "entrain," smaller aquatic organisms into a facility's cooling system. Impingement and entrainment kill hundreds of billions of aquatic organisms from waters of the United States each year.

The harm to aquatic organisms caused by a CWIS most directly relates to the amount of water the structure withdraws, which in turn depends on the type of cooling system the facility uses. "Once-through" cooling systems draw cold water from a waterbody and return heated water to the waterbody in a continuous flow. See Riverkeeper, Inc. v. EPA, 358 F.3d 174, 182 n.5 (2d Cir. 2004) ("Riverkeeper I"). "Closed-cycle" cooling systems generally recirculate the same cooling water within a CWIS by using towers or reservoirs to dissipate heat from the water. Id.; see also 79 Fed. Reg. at 48, 333. Closed-cycle cooling withdraws approximately 95 percent less water than once-through cooling.

2. Statutory Framework

A. The Clean Water Act

The express purpose of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Sections 301 and 306 of the CWA broadly authorize the EPA to establish pollution discharge standards. Id. §§ 1311, 1316. In 1972 Congress amended the CWA to specifically address the operation of CWISs. See Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816; see also Riverkeeper I, 358 F.3d at 184 (describing the 1972 amendments as marking a "sea of change" in Congress's approach to water pollution). In section 316(b), it directed the EPA to establish standards governing the operation of CWISs: Any standard established pursuant to [CWA section 301] or [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.

33 U.S.C. § 1326(b). Section 316(b) lists no specific factors that the EPA should consider in establishing the applicable "best technology available" ("BTA") standard. We have held that "interpretation of section 316(b) is informed by the two provisions it cross-references," Riverkeeper, Inc. v. EPA, 475 F.3d 83, 91 (2d Cir. 2007) ("Riverkeeper II"), rev'd on other grounds...

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