Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A federal appeals court has struck down government regulations that allow power plants that kill huge numbers of fish to simply replenish surrounding waters with new ones. The 2nd U.S. Circuit Court of Appeals said destroying fish that get trapped in cooling systems and then replacing them is not the same as mitigating environmental damage as required by the Clean Water Act of 1972. “Restoration measures correct for the adverse environmental impacts of impingement and entrainment; they do not minimize those impacts in the first place,” Judge Robert A. Katzmann wrote for the unanimous court in Riverkeeper Inc. v. Environmental Protection Agency, 02-4005. He noted that since the passage of the Clean Water Act, Congress had rejected an amendment that would have explicitly allowed fish restoration measures. While the ruling said that this form of environmental maintenance did not pass muster, it upheld numerous aspects of regulations issued by the Environmental Protection Agency in 2001 after years of litigation. When the Clean Water Act was passed, Congress directed the agency to regulate cooling water structures that inadvertently trap and kill fish. “A single power plant might impinge a million adult fish in just a three-week period, or entrain some 3 to 4 billion smaller fish or shellfish in a year,” according to the 2nd Circuit’s opinion. The EPA’s first set of regulations were remanded by the 4th Circuit on procedural grounds in 1977, and new rules were not established until 2001, after environmental groups sued the agency and won a consent decree. Under “Track I” of the regulations, power plants can operate proper cooling structures by limiting the amount of water taken in by the coolers and implementing the best available technology to minimize the number of fish trapped in the systems. Another acceptable method of compliance, “Track II,” allowed plants to prove through studies that steps could be taken to reduce environmental impact by 90 percent of what could be done under Track I. Or, according to Track II, killed fish could simply be restocked. Riverkeeper, the lead plaintiff of numerous environmental groups, petitioned the 2nd Circuit for a final review of the rules. The group argued that Track II set a lower standard than Track I, and that “dry cooling,” a method that relies on air drafts and little or no water, is the best technology available. It also challenged the replenishing rules. The 2nd Circuit disagreed that Track II set a lower standard, and said the EPA did not overstep its authority when it considered the steep price and energy efficiency of dry cooling to determine the best technology available. But, the court said, “the EPA exceeded its authority by allowing compliance with section 316(b) through restoration methods.” The court remanded only that aspect of the regulations. Chief Judge John M. Walker and Judge James L. Oakes concurred with Judge Katzmann. Reed W. Super of Riverkeeper represented the lead plaintiff. Scott J. Jordan and Cynthia J. Morris of the U.S. Department of Justice represented the EPA.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.