Riverkeeper, Inc. v. U.S. E.P.A.
| Citation | 475 F.3d 83 |
| Decision Date | 25 January 2007 |
| Docket Number | Docket No. 04-6692-ag(L).,Docket No. 04-6698-ag(CON).,Docket No. 04-6695-ag(CON).,Docket No. 04-6693-ag(CON).,Docket No. 04-6697-ag(CON).,Docket No. 04-6696-ag(CON).,Docket No. 04-6699-ag(CON).,Docket No. 04-6694-ag(CON). |
| Parties | 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. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
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.
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.
Our decision in Riverkeeper, Inc. v. EPA, 358 F.3d 174 (2d. Cir.2004) ("Riverkeeper I"), 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 differently, section 316(b) required the EPA to promulgate regulations for cooling water intake structures at the same time that it established pollution discharge standards pursuant to sections 301 and 306. The EPA's first attempt at regulation under section 316(b), however, was remanded by the Fourth Circuit in 1977 on procedural grounds, and years...
To continue reading
Request your trial
-
Voices of The Wetlands v. State Water Res. Control Bd.
...... is certainly significant (see Riverkeeper, Inc. v. U.S. E.P.A. (2d Cir.2007) 475 F.3d 83, ... clean water requirements, are issued under an EPA-approved state water quality control program ... aids to interpretation do not persuade us otherwise. The limited available legislative ......
-
Voices of Wetlands v. State Water Res. Bd.
......The complex issues before us include procedural challenges to the trial ... States Environmental Protection Agency (EPA) regulates water quality in the nation's ... findings." ( Rapid Transit Advocates, Inc. v. Southern Cal. Rapid Transit Dist. (1986) 185 ...They use virtually no water. ( Riverkeeper, Inc. v. United States Environmental Protection ......
-
Shi Liang Lin v. U.S. Dept. of Justice
...that which an agency itself has stated; and (2) the agency must make those statements in clear terms. See, e.g., Riverkeeper, Inc. v. EPA, 475 F.3d 83, 105 (2d Cir.2007) ("We cannot opine on this subject, because we must consider only those justifications that the [agency] offered at the ti......
-
City of New York v. Beretta U.S.A. Corp., Docket No. 05-6942-cv (LEAD).
......CORP., Browning Arms Co., Colt's Mfg. Co., Inc., Forjas Taurus, S.A., Glock Inc., Phoenix Arms, Sigarms, ...us to confront questions as to the PLCAA's constitutionality. ... See Riverkeeper, Inc. v. EPA, 475 F.3d 83, 110 (2d Cir.2007) (rejecting ......
-
EPA promulgates final standards for cooling water intake structures
...Cir. 2004) (remanding those provisions of the Phase I Rule that allow compliance through restoration measures); Riverkeeper, Inc. v. EPA, 475 F.3d 83 (2d Cir. 2007) (remanding for further clarification EPA's decision to reject closed-cycle cooling as BTA, among other 3Proposed Rule, 76 Fed.......
-
Clean Water Act: EPA's Final Rule for Cooling Water Intake Structures At Utility And Manufacturing Facilities
...25, 2007, the U.S. Court of Appeals for the Second Circuit remanded key components of the Phase II Rule. Riverkeeper, Inc. v. U.S. EPA, 475 F. 3d 83 (2d Cir. 2007) (Riverkeeper II). Several industry groups petitioned the U.S. Supreme Court for review of the Second Circuit's decision. On Apr......
-
Energy Regulation April 2008 Updates
...Act Group (Nos. 07-588, 07-589, and 07-597) to review this one issue raised by the Second Circuit's decision in Riverkeeper Inc. v. EPA, 475 F.3d 83 (2d Cir. 2007), commonly referred to the Riverkeeper II case. Section 316(b) of the Clean Water Act (CWA) requires large power plants to insta......
-
EPA Issues Flexible Standards For Cooling Water Intake Structures At Existing Manufacturing Facilities And Power Plants
...Part 125 Subpart I. 2 Riverkeeper, Inc. v. EPA, 358 F.3d 174 (2d. Cir. 2004). 3 40 C.F.R. Part 125 Subpart J. 4 Riverkeeper, Inc. v. EPA, 475 F.3d 83 (2d Cir. 5 Entergy Corp v. Riverkeeper, Inc., 556 U.S. 208 (2009). 6 40 C.F.R. Part 125 Subpart N. 7 Conoco-Phillips Co. v. EPA, 612 F.3d 822......
-
Table of authorities
.......... 21 Riverkeeper v. EPA, 358 F.3d 174 (2d Cir. 2004) ...................................................... 393 Riverkeeper v. EPA, 475 F.3d 83 (2d Cir. 2007) ........................................................ 393 Rivers Unlimited v. Costle , No. C-2-78-48, 15 ELR 20936 (S.D. Oh......
-
The Constitution, the Environment, and the Prospect of Enhanced Executive Power
...1322 (D.C. Cir. 1996). 95. Bldg. & Constr. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002). 96. Riverkeeper, Inc. v. EPA, 475 F.3d 83, 105 n.18, 37 ELR 20022 (2d Cir. 2007), rev’d & remanded sub nom. Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498, 39 ELR 20067 (2009). 9......
-
Technology-based standards
...groups and various States—challenged those regulations, and the Second Circuit set them aside. Riverkeeper, Inc. v. EPA , 475 F.3d 83, 99-100 (2007). he issue for our decision is whether, as the Second Circuit held, the EPA is not permitted to use cost-beneit analysis in determining the con......