Federal Court of Appeals Rules for Ocean and Waterway Protection from Once-through Cooling
Federal Decision is Consistent with Recently Approved California Policy
Press Release
Santa Monica Baykeeper and California Coastkeeper
07/28/2010
Santa Monica Baykeeper, a plaintiff on a federal lawsuit filed by Riverkeeper and the Waterkeeper Alliance, has prevailed in a decision that will impact ocean and other waterway protection nationwide, and that reinforces a Policy approved by the State Water Resources Control Board in May with the support of Baykeeper and the California Coastkeeper Alliance.
The Fifth Circuit Court of Appeals ruling addresses an antiquated cooling technology used by facilities such as power plants, manufacturing operations, and off-shore oil rigs that sucks in billions of gallons of cold water per day from the ocean, lakes, rivers, and bays. This "once-through cooling" (OTC) process needlessly kills fish, larvae, plankton, and other marine life as they are drawn into facilities through cooling water intake pipes, and kills larger marine species such as sea lions and turtles as they become trapped on the intake screens.
In its decision, the Court of Appeals granted environmental groups’ and the U.S. Environmental Protection Agency’s (EPA) request – over strong industry objection – that the Obama Administration EPA be allowed to reconsider a Bush Administration decision not to issue “Phase III” cooling water regulations for existing manufacturing facilities that use OTC. In addition, the Court rejected the oil industry’s challenge to the issuance of cooling water regulations for new off-shore oil rigs. EPA will now consider cooling water regulations for existing power plants (“Phase II” regulations) at the same time it considers regulations for the new and existing manufacturing facilities and oil rigs subject to Friday’s decision.
The Court of Appeals noted specifically that EPA need not compare costs to benefits when regulating OTC under Clean Water Act Section 316(b). It found that EPA’s reliance on solely an economic achievability test (determining only whether the industry as a whole could reasonably bear the costs of the regulations), instead of performing a full cost-benefit analysis, was rational and supported by the record.
“The Fifth Circuit’s decision exemplifies how California is once again ahead of the game on environmental policy. Eliminating out-dated and destructive systems that literally kill our ocean ecosystem is not only long overdue, but is entirely consistent with federal law,” states Liz Crosson, Executive Director of Santa Monica Baykeeper.
“The decision signals the courts’ continued support for the Clean Water Act’s goal of healthy, thriving waterways,” added Linda Sheehan, Executive Director of the California Coastkeeper Alliance. “The Court of Appeals has reinforced California’s leadership in supporting modern coastal cooling technology, especially at a time when our coastal ecosystems are more threatened than ever by climate change and other stressors.”
Read the decision at: http://www.cacoastkeeper.org/document/5th-circuit-decision-on-phase-iii-otc-rule-7-23-2010.pdf.
About Santa Monica Baykeeper: Founded in 1993, Santa Monica Baykeeper’s (SMBK) mission is to protect and restore the Santa Monica Bay, San Pedro Bay and adjacent waters through enforcement, fieldwork and community action. SMBK works to achieve this goal through litigation and regulatory programs that ensure water quality protections in waterways throughout Los Angeles County.
www.smbaykeeper.org
About California Coastkeeper Alliance: CCKA coordinates, supports, and enhances the work of the 12 California Waterkeeper programs to provide a statewide voice for safeguarding California’s waters, and its world-renowned coast and ocean, for the benefit of all Californians and for California’s future.
www.cacoastkeeper.org
###
