898 F.3d 173
2d Cir.2018Background
- EPA promulgated a 2014 Final Rule under CWA §316(b) establishing national requirements for cooling water intake structures (CWIS) at existing facilities; rule addresses impingement and entrainment and a permitting/process framework implemented via NPDES permits.
- CWISs cause impingement (large organisms trapped) and entrainment (small organisms drawn into systems); closed‑cycle cooling greatly reduces withdrawals but EPA found retrofit infeasible nationwide for many facilities.
- EPA engaged in ESA §7 consultation with FWS and NMFS; the Services issued a programmatic biological opinion and an Incidental Take Statement (ITS) concluding the Rule is not likely to jeopardize listed species because of incorporated process‑based protections (technical assistance + permit review), while deferring some site‑specific impacts to permitting.
- Multiple petitioners (environmental groups and industry associations including UWAG, API, CWIS Coalition) challenged the Rule and the biological opinion on CWA, ESA, and APA grounds; petitions consolidated and transferred to Second Circuit.
- The Second Circuit reviewed Chevron/APA standards, examined administrative record and ESA consultation, and denied all petitions, upholding the Rule, the programmatic biological opinion, and the ITS.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| National vs. site‑specific entrainment standard | EPA must set a single national categorical entrainment BTA | EPA may adopt site‑specific determinations because closed‑cycle cooling is not nationally available | EPA may lawfully adopt site‑specific approach; not arbitrary to decline national closed‑cycle mandate |
| Closed‑cycle cooling availability | EPA's finding that closed‑cycle cooling is not nationally available is unsupported/arbitrary | EPA relied on record showing land, energy/emissions, and remaining life constraints; cost/benefit consideration permissible after Entergy | EPA's availability finding was reasonable and not arbitrary |
| Impingement performance standard (76% survival) and "loopholes" | Certain compliance options permit facilities to avoid the 76% standard, making Rule invalid | Rule requires Director review, enforceable permit conditions, and ensures technologies are BTA at site | Court upheld impingement framework and Director/process controls as adequate to meet CWA |
| ESA §7 programmatic biological opinion & ITS | Services improperly deferred site‑specific jeopardy and take analysis; ITS lacks numeric take and sufficient measures | Programmatic approach permissible where site‑specific effects infeasible to assess; ITS explains impracticability of numeric caps and contains binding process/measures | Programmatic consultation, deferred site‑specific analysis via technical assistance, and ITS were lawful and supported by record |
| APA notice and "Service‑driven" additions | EPA failed to give notice/opportunity to comment on Service‑driven provisions and relied on Service material without comment | Proposed rule disclosed ESA considerations and Service role; no separate public comment right on interagency consultations | Notice adequate; Service‑driven provisions were logical outgrowth and did not violate APA |
| Delegation / role of Services | Rule unlawfully delegates EPA authority to Services or lets Services control permit terms | Rule preserves Director authority; Services provide advice and technical input; EPA retains review/oversight and veto power | No unlawful delegation; cooperative consultation role permitted and EPA retained final authority |
Key Cases Cited
- Riverkeeper, Inc. v. EPA, 358 F.3d 174 (2d Cir. 2004) (addressing CWIS regulation under §316(b))
- Riverkeeper, Inc. v. EPA, 475 F.3d 83 (2d Cir. 2007) (remanding Phase II rule and discussing site‑specific regulation and notice requirements)
- Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2010) (holding EPA may consider costs and benefits in determining BTA under §316(b))
- EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200 (1976) (NPDES permits transform standards into obligations of individual dischargers)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary and capricious standard for agency rulemaking)
- Bennett v. Spear, 520 U.S. 154 (1997) (reviewability of biological opinions in APA/NEPA contexts)
- Defs. of Wildlife v. U.S. Dep't of the Navy, 733 F.3d 1106 (11th Cir. 2013) (upholding staged consultation and deferral of certain analyses)
- Miccosukee Tribe of Indians v. United States, 566 F.3d 1257 (11th Cir. 2009) (discussing obligations to use best scientific data in biological opinions)
- Nat'l Wildlife Fed'n v. NMFS, 524 F.3d 917 (9th Cir. 2008) (jeopardy analysis and treatment of baseline vs. indirect effects)