Appeals Court Ruling A Partial Victory For Aquatic Wildlife

(Left) A New York power plant with a once-through cooling water intake system that can trap aquatic wildlife. (Right) Fish and other organisms can be pinned against cooling water intake screens like these. (Inset) Fish found impinged on this outdated and dangerous equipment.

NEW YORK—For a fish, a seal or even a sea lion, swimming too close to a power plant could spell disaster. A rule recently upheld by a federal court takes a step toward protecting aquatic life from being sucked into cooling water intakes at these plants—but it’s a missed opportunity to do more.

On July 23, the 2nd U.S. Circuit Court of Appeals upheld an Obama-era cooling water intake rule issued by the Environmental Protection Agency (EPA). The rule, issued in 2014, regulates the intake of cooling water at some 1,000 large power plants and manufacturing facilities.

Currently, the intake of water from rivers, lakes, bays and oceans to cool processing equipment at these facilities kills or injures billions of fish and other aquatic life annually. Fish eggs, larvae and small organisms are sucked in along with the cooling water (entrainment), while adult fish and shellfish and larger animals are pinned against the screens protecting the cooling water pumps (impingement). NELC attorneys—working with a coalition of lawyers from Riverkeeper, Sierra Club and the Center for Biological Diversity— had argued that the rule did not go far enough and thus violated both the Clean WaterActandtheEndangeredSpeciesAct.

At the same time, we filed briefs opposing arguments, made by a coalition of industry groups, that the rule should be set aside in its entirety because of alleged overreach and procedural irregularities.

“The court’s ruling is something of a mixed bag,” explained NELC Litigation Director Chuck Caldart. “On the one hand, the court missed a critical opportunity to set a national standard requiring the installation of closed cycle cooling—which the EPA concedes is by far the most effective technology for reducing harm to aquatic life—at the great majority of facilities where it would be feasible.”

“On the other hand,” Caldart noted, “the court flatly rejected industry attempts to scrap the rule. Instead, the court interpreted the rule in a way that provides ‘teeth’ to provisions that might have been read more generally. This is likely to boost the rule’s effectiveness.”

NELC and the other environmental group attorneys are considering the possibility of filing a petition for rehearing on certain aspects of the court’s opinion.

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Exxon Appeal Of Record-Setting Judgment To Be Set For Oral Argument

Environment Texas Executive Director Luke Metzger in front of ExxonMobil’s Baytown, Texas refinery.

Close-up image of a smokestack at ExxonMobil’s Baytown, Texas refinery.

NEW ORLEANS—NELC Attorneys are back in the 5th U.S. Circuit Court of Appeals for the second time in their long-running battle to hold ExxonMobil Corporation accountable under the Clean Air Act. The company is responsible for a staggering number of air pollution violations at its sprawling Baytown, Texas, oil refinery and chemical plant complex.

After initially ruling in favor of Exxon after a three-week trial—and then being overturned on appeal by the 5th Circuit— U.S. District Court Judge David Hittner found Exxon liable for a total of 16,386 days of violation. In April 2017, eight years after plaintiffs Environment Texas and Sierra Club first notified Exxon of this impending lawsuit, Judge Hittner levied a $19.95 million civil penalty against the energy giant for these egregious violations of the Clean Air Act.

The fine is the largest civil penalty imposed in an environmental “citizen suit,” a citizen-initiated enforcement mechanism Congress included in the Clean Air Act and other federal environmental laws beginning in the 1970’s. By comparison, this penalty is approximately 50 percent greater than the combined total of all the air pollution fines issued by the state of Texas against all sources from 2011 to 2016.

This time it is Exxon who is asking the appeals court to reverse Judge Hittner’s decision. Among other arguments, Exxon is seeking a ruling that would impose drastic limits on the ability of citizen plaintiffs to enforce the Clean Air Act and is claiming, yet again, that somehow it gained no economic benefit from its years of delaying the implementation of several costly pollution control projects.

In a 96-page legal brief submitted in April, NELC attorneys detailed the many reasons why Exxon has no legitimate grounds for its appeal.

“Exxon is asking the appellate court to ignore decades of court decisions affirming the right of citizens who live next to industrial facilities and breathe their illegal pollution to insist, simply, that these facilities obey the law,” explained NELC Senior Attorney Josh Kratka.

NELC’s legal brief also demonstrates that the trial judge was fully justified in imposing a large fine in this case.

Not only did the evidence show that Exxon profited by at least $14 million by waiting until it was sued to address many of its air pollution problems, but the company’s track record of illegal emissions— thousands of violations and 10 million pounds of respiratory irritants and hazardous air pollutants spread over eight full years—made this delay even more egregious.

Regardless of the final resolution of this appeal, the impact of NELC’s lawsuit on Exxon’s compliance record has been far reaching: The occurrence of the most serious violations has dropped by roughly 90 percent since the initiation of the litigation.

The appeals court is expected to schedule an oral argument on Exxon’s appeal for sometime this fall, with a final decision to be issued some months after.

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Clean Water Showdown Headed For North Dakota Courtroom

Brewers like PJ Goudreault of Aspen Brewing Company in Colorado are standing up for the Clean Water Rule.

FARGO, N.D.—Clean water matters. That’s the message delivered to a federal court by fly-fishing guides, charter boat operators, craft brewers, and city mayors and council members, all in favor of the Clean Water Rule.

NELC, in partnership with Environment America, filed two briefs in the North Dakota federal district court on July 23, one on behalf of 157 small business operators, and the other on behalf of 62 state and local elected officials. The amicus curiae, or “friend of the court,” briefs asked the court to uphold EPA’s Clean Water Rule, a 2015 regulation issued by EPA and the Army Corps of Engineers that helps protect drinking water sources for 1 in 3 Americans.

North Dakota, together with 12 other states, filed a lawsuit in 2015, asking the court to set aside the rule as too protective. The Clean Water Rule has traveled a circuitous path since then. Another challenge to the rule was filed by a coalition of industry groups and other states in the 6th U.S. Circuit Court of Appeals in Cincinnati, and that court eventually issued an order postponing implementation of the rule (and halting other challenges) until it made a decision.

In January 2017, the federal government filed a lengthy brief in that court providing a detailed defense of both the legal and the scientific basis for the rule. After taking office days later, however, President Trump directed the agencies to reverse course, and announced his intention to revoke the rule and replace it with one providing much narrower protections.

Meanwhile, the question of the 6th Circuit’s jurisdiction to hear the case was taken to the U.S. Supreme Court, and that court ruled in January 2018, based on the express language of the Clean Water Act, that only the U.S. district courts could hear challenges to the rule. This allowed the North Dakota case, along with other district court litigation regarding the rule, to go forward. In July, the U.S. Department of Justice filed a brief urging the North Dakota court to postpone any ruling until the agencies issued a final version of the rule—likely a weaker version—in 2020.

The amicus briefs filed by NELC, however, urged the court to decide the case now, and to uphold the original rule as fully consistent with both the Clean Water Act and the Constitution.

“It’s not just environmentalists who understand that water is vital to our ecology, our health and our quality of life,” said John Rumpler, Environment America’s senior campaign director. “There are many families, small business owners and elected officials who want our water protected.”

In their amicus brief, small business owners shared why the rule matters to them. “We can’t make good beer without clean water,” said Ryan Naylor, marketing manager at One World Brewing in Asheville, North Carolina—one of 23 craft breweries to sign on to the brief.

Andrew Johnson, a Minneapolis city council member who signed on to the elected officials brief, believes that the Clean Water Rule’s inclusion of ephemeral and intermittent streams and related wetlands is critical to the health of the watershed network that feeds and cleans the many lakes within his city’s borders.

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NOAA Hollings Scholar Emily Van Auken Joins NELC As Its New Paralegal

BOSTON—In June, NELC welcomed scientist and environmental activist Emily Van Auken as our team’s new Paralegal and Office Administrator.

Emily is a 2018 graduate of Stonehill College with a degree in environmental science. While in school, she participated in a study abroad program in Iceland and Greenland focusing on climate change in the arctic. She also received a National Oceanic and Atmospheric Administration (NOAA) Ernest F. Hollings Scholarship, and worked at a NOAA research office in Seattle. During her senior year, Emily facilitated and taught a course at Stonehill of her own invention entitled, “Communicating Climate Change: There is no Planet B.”

Through these experiences, Emily learned that her interest lies in the implementation and enforcement of environmental regulations, a revelation that led her to apply to NELC. “I love that I have the opportunity to work for an organization that actively promotes some of my core beliefs,” she noted.

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