905 F.3d 49
2d Cir.2018Background
- The EPA promulgated a 2014 Final Rule under CWA §316(b) setting national requirements for cooling water intake structures (CWISs) at existing facilities and new units at existing facilities, addressing impingement and entrainment harms.
- CWISs kill large numbers of aquatic organisms via impingement (larger organisms trapped) and entrainment (smaller organisms drawn into systems); closed‑cycle cooling reduces withdrawals ~95% versus once‑through systems.
- The Services (FWS and NMFS) completed formal ESA §7 consultation and issued a programmatic biological opinion (May 2014) finding the Rule not likely to jeopardize listed species, relying on a binding technical‑assistance process and an Incidental Take Statement (ITS) that deferred numerical take quantification to site permits.
- 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 in consolidated review.
- The Second Circuit applied Chevron deference and APA/ESA standards: review focused on statutory interpretation of §316(b), whether agency decisions were arbitrary and capricious, and whether the ESA consultation and ITS met regulatory requirements.
- The court denied all petitions, upholding (inter alia) EPA’s site‑specific approach to entrainment, selection of modified traveling screens for impingement, the definition of “new unit,” the Services’ programmatic biological opinion, and the ITS.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §316(b) required a national categorical entrainment standard (e.g., mandated closed‑cycle cooling) | Env. petitioners: statute requires national categorical standard and closed‑cycle cooling as BTA | EPA: closed‑cycle not nationally "available" due to space, emissions, and remaining useful life; site‑specific BTA via NPDES is permissible | Court: EPA reasonably concluded closed‑cycle not nationally available; site‑specific approach lawful and not an abdication of duty |
| Whether EPA arbitrarily selected impingement standard (modified traveling screens and a 76% survival metric) | Env.: closed‑cycle is the BTA; options create loopholes and exclude fragile species improperly | EPA: closed‑cycle unavailable nationally; multiple permit options include Director oversight and enforceable permit terms; exclusion of fragile species is supportable | Court: upheld EPA’s impingement regime and exclusion of fragile species as rational; compliance options adequately constrained |
| Whether EPA violated APA in defining "new unit" (excludes rebuilt/repowered units) and failing to give notice | Petitioners (Env., API): definition arbitrary, changed after notice depriving comment; cost estimates for manufacturing new units inadequate | EPA: articulated rational reasons (avoid discouraging upgrades; similar constraints to retrofits) and provided sufficient notice; cost data reasonable | Court: definition rational and logical outgrowth of proposal; notice and cost estimation adequate |
| Whether Services’ programmatic biological opinion and ITS complied with ESA §7 (jeopardy analysis, thermal impacts, species coverage, ITS quantification and measures) | Env.: Services unlawfully deferred site‑specific jeopardy/thermal analysis, failed to use best data, inadequate species analysis, and ITS lacks numeric take and reasonable/prudent measures | Services/EPA: programmatic approach permitted; technical‑assistance process is binding for consultation purposes; ITS justified in deferring numeric take and prescribes appropriate measures/conditions | Court: programmatic biological opinion and ITS lawful; deferral to site permits permissible where procedures bind agencies; ITS adequate given record and commitment to quantify at permit stage |
Key Cases Cited
- Riverkeeper, Inc. v. EPA, 358 F.3d 174 (2d Cir. 2004) (upholding Phase I rule with limitations; discussion of site‑specific regulation)
- Riverkeeper, Inc. v. EPA, 475 F.3d 83 (2d Cir. 2007) (review of Phase II rule; site‑specific determinations and limits on EPA discretion)
- Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009) (Supreme Court: EPA may consider costs and benefits in determining BTA under §316(b))
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (administrative deference framework)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary and capricious standard for agency rulemaking)
- Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978) (ESA’s conservation purpose and strong protection for listed species)
- EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200 (1976) (NPDES permits transform standards into obligations of dischargers)
- Bennett v. Spear, 520 U.S. 154 (1997) (reviewability of ESA biological opinions)