Herring trapped against a power plant intake structure

NEW YORK—NELC’s challenge to the way the U.S. Environmental Protection Agency (EPA) regulates the intake of cooling water at existing power plants and large factories will now be heard by a panel of judges in New York City rather than in Richmond, Va. The court will also determine whether the EPA’s new rules contain sufficient protections for endangered species.

In 2014, numerous environmental and industry groups filed challenges to new EPA regulations governing the massive cooling water intake structures used by existing power plants and factories. All of these appeals were consolidated into one case and randomly assigned to the U.S. Court of Appeals for the Fourth Circuit in Richmond.

But NELC and other environmental group lawyers argued that the Second Circuit Court of Appeals in New York is the more appropriate court to decide this case, because it has already heard challenges to two earlier versions of the cooling water regulations. Over the objections of industry lawyers and the EPA, the Fourth Circuit agreed and transferred the case this past December.

Power plants and manufacturing facilities across the country kill hundreds of billions of fish and other aquatic species each year by withdrawing huge volumes of water from rivers, lakes, and estuaries to cool industrial machinery. Congress, in the Clean Water Act, directed the EPA to require these facilities to employ the “best technology available” for minimizing the adverse effects of cooling water intake.

But NELC attorneys, acting on behalf of Environment America and Environment Massachusetts, argue that the EPA unlawfully scrapped this mandate in favor of a case-by-case approach that allows factories to avoid installing the technology that the EPA has determined is the “most effective” at protecting aquatic life.

In addition, the Second Circuit ruled in April that its review of the cooling water regulations will also decide whether they were issued in violation of the Endangered Species Act. That law requires the EPA to consult with the National Marine Fisheries Service and the U.S. Fish and Wildlife Service (“the Services”) to determine whether the proposed regulations will be sufficiently protective of endangered and threatened aquatic species.

The environmental groups challenging the rule believe that the “biological opinion” issued by the Services is flawed, and that it contains a number of concessions to industry that are contrary to science and in conflict with the Services’ own prior findings on the effect of cooling water intake on imperiled species. The industry groups, on the other hand, argue that the EPA was too concerned about the needs of imperiled species, and insist that protections for these species be stricken from the regulations.

Briefing on both the Clean Water Act and the Endangered Species Act issues is expected to begin this fall.