Cooling Water Intake Structure Coal. v. U.S. Envtl. Prot. Agency, Docket Nos. 14-4645(L)

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtLOHIER, Circuit Judge
Citation905 F.3d 49
Decision Date23 July 2018
Docket NumberAugust Term, 2017,14-4667(CON),14-4664(CON),Docket Nos. 14-4645(L),14-4670(CON),14-4657(CON),14-4659(CON)
Parties 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.

905 F.3d 49

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.

Docket Nos. 14-4645(L)
14-4657(CON)
14-4659(CON)
14-4664(CON)
14-4667(CON)
14-4670(CON)
August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: September 14, 2017
Decided: July 23, 2018
Amended: September 27, 2018


905 F.3d 57

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:

905 F.3d 58

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

905 F.3d 59

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, Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 129 S.Ct. 1498, 173 L.Ed.2d 369 (2009), but that the EPA need not comply with "every statutory directive contained" in those two provisions when acting pursuant to section 316(b), id. (quoting Riverkeeper I, 358 F.3d at 187 ). Moreover, the EPA may consider "the benefits derived from reductions [in adverse environmental impact] and the costs of achieving them" when establishing the BTA. Entergy, 556 U.S. at 219, 129 S.Ct. 1498.

The standards promulgated under CWA sections 301, 306, and 316(b) are implemented by permits issued through the National Pollutant Discharge Elimination System ("NPDES"). See 33 U.S.C. § 1342 ; 40 C.F.R. §§ 122.44(b)(3), 125.90(a). "An NPDES permit serves to transform generally applicable ... standards ... into the obligations ... of the individual discharger ...." EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). NPDES permits are issued by the EPA or, if the EPA has approved a State’s permitting program, by the Director of the NPDES program for...

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    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • May 6, 2020
    ...be an exact replica of the rule proposed in the notice, only a ‘logical outgrowth.’ " Cooling Water Intake Structure Coal. v. EPA, 905 F.3d 49, 61 (2d Cir. 2018) ; see also 42 U.S.C. § 1395hh(a)(4) (imposing a logical-outgrowth requirement on Medicare regulations)."A central quest......
  • Calle v. Acting Attorney Gen. Matthew G. Whitaker, 18-CV-1957(SJF)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 31, 2019
    ...the regulation [at issue] against the statute that contains the agency's charge[,]" Cooling Water Intake Structure Coal. v. EPA, 905 F.3d 49, 64-65 (2d Cir. 2018) (quotations, alterations and citation omitted), to determine whether the agency has followed the "unambiguously expres......
  • Sanofi-Aventis U.S., LLC v. U.S. Dep't of Health & Human Servs., Civil Action 21-00634 (FLW)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • November 5, 2021
    ...communicated a withdrawal of the proposed rule to the public.”); Cooling Water Intake Structure Coalition v. United States EPA, 905 F.3d 49, 61 (2d Cir. 2018) (“A central question under the APA is whether the agency's notice would fairly apprise interested persons of the subjects and issues......
  • Alvarez Sosa v. Barr, 17-CV-4520 (SJF)(GRB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 31, 2019
    ...the regulation [at issue] against the statute that contains the agency's charge[,]" Cooling Water Intake Structure Coal. v. EPA , 905 F.3d 49, 64-65 (2d Cir. 2018) (quotations, alterations and citation omitted), to determine whether the agency has followed the "unambiguously expre......
  • Request a trial to view additional results
14 cases
  • Yale New Haven Hosp. v. Azar, CIVIL CASE NO. 3:18-CV-1230(JCH)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • May 6, 2020
    ...be an exact replica of the rule proposed in the notice, only a ‘logical outgrowth.’ " Cooling Water Intake Structure Coal. v. EPA, 905 F.3d 49, 61 (2d Cir. 2018) ; see also 42 U.S.C. § 1395hh(a)(4) (imposing a logical-outgrowth requirement on Medicare regulations)."A central quest......
  • Calle v. Acting Attorney Gen. Matthew G. Whitaker, 18-CV-1957(SJF)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 31, 2019
    ...the regulation [at issue] against the statute that contains the agency's charge[,]" Cooling Water Intake Structure Coal. v. EPA, 905 F.3d 49, 64-65 (2d Cir. 2018) (quotations, alterations and citation omitted), to determine whether the agency has followed the "unambiguously expres......
  • Sanofi-Aventis U.S., LLC v. U.S. Dep't of Health & Human Servs., Civil Action 21-00634 (FLW)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • November 5, 2021
    ...communicated a withdrawal of the proposed rule to the public.”); Cooling Water Intake Structure Coalition v. United States EPA, 905 F.3d 49, 61 (2d Cir. 2018) (“A central question under the APA is whether the agency's notice would fairly apprise interested persons of the subjects and issues......
  • Alvarez Sosa v. Barr, 17-CV-4520 (SJF)(GRB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 31, 2019
    ...the regulation [at issue] against the statute that contains the agency's charge[,]" Cooling Water Intake Structure Coal. v. EPA , 905 F.3d 49, 64-65 (2d Cir. 2018) (quotations, alterations and citation omitted), to determine whether the agency has followed the "unambiguously expre......
  • Request a trial to view additional results

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