Mystic Generating Station, which withdraws cooling water from the Mystic River in Everett, Mass.

NEW YORK, NY—On May 20, various parties filed their challenges to the cooling water intake regulation promulgated by the U.S. Environmental Protection Agency (EPA) in 2014. The regulation was issued under the Clean Water Act (CWA), which directs EPA to set national standards requiring power plants and manufacturing facilities to use the “best technology available” to reduce the environmental impacts of drawing in water from water- ways to cool their machinery—a process that kills billions of fish and other aquatic life each year.

The challenges—submitted by a broad collation of environmental groups and three different sets of industry groups— were filed in the U.S. Court of Appeals for the Second Circuit.

NELC Litigation Director Chuck Caldart, working with attorneys from Sierra Club and Riverkeeper, argued on behalf of the environmental petitioners that EPA violated the CWA in two principal ways.

First, the agency failed to set national standards, but instead left the regulation of cooling water intake to case-by-case determinations made by state agencies. This heavily favors the regulated industries, whose superior financial and political resources often overwhelm even the best-intentioned state personnel.

Second, EPA refused to require these industries to utilize closed-cycle cooling, a widely-available and affordable technology that EPA itself acknowledges “is indisputably the most effective technology” at reducing death and injury from cooling water intake.

The environmental petitioners also argued that the government violated the Endangered Species Act (ESA) by failing to adequately protect the scores of ESA-protected species that are harmed by cooling water intake at these facilities.

The principal industry argument, on the other hand, is that the ESA is not applicable at all, despite the fact that the administrative record is replete with evidence of the “significant” negative effects of cooling water intake on a host of species under ESA jurisdiction, among them whales, sea lions, seals, sea turtles, and salmon.

The government’s response to these challenges is due to be filed this fall.