New York Appeals Court: EPA Must Protect Aquatic Life Near Power Plants
Associated Press
01/26/2007
NEW YORK -- The Environmental Protection Agency must force power plants to protect billions of fish and other aquatic organisms even if it's expensive, a federal appeals court said in a ruling favoring states and environmental groups.
The decision late Thursday by the 2nd U.S. Circuit Court of Appeals concluded that it was improper for the EPA to let power plants circumvent environmental laws - for instance, restocking polluted water with new fish instead of paying to upgrade their technology.
It said the EPA's decisions must "be driven by technology, not cost," though it said an exception can exist when the EPA is choosing between two technologies that produce essentially the same benefits but have much different costs.
In Washington, EPA Assistant Administrator for Water Benjamin H. Grumbles said: "EPA's goal is to protect fish and the ecosystem while meeting the nation's need for reliable energy sources. EPA is carefully reviewing the Second Circuit's opinion to assess next steps."
The ruling drew praise from environmental groups and six states that had sued the EPA, saying the Clean Water Act requires the EPA to force power plants to use the best technology possible to protect the environment.
"This decision is a strong and stinging rebuke of the Bush administration's underhanded practice of issuing rule changes to undercut environmental laws," Connecticut Attorney General Richard Blumenthal said in a statement Friday. "The court ruled that the Clean Water Act accords the environment priority over profits."
The other states involved are Rhode Island, Delaware, Massachusetts, New Jersey and New York.
"Once again, the courts have prevented EPA from rewriting the Clean Water Act at the behest of industry," said Reed Super, senior clinical staff attorney at Columbia Law School's Environmental Law Clinic and lead attorney for the environmental petitioners.
Steve Fleischli, executive director of Waterkeeper Alliance, said the "indiscriminate and illegal slaughter" of aquatic life "will now stop."
The lawsuit was brought after the EPA published regulations in July 2004 describing how power plants must protect aquatic life when they use water from bays, rivers, lakes, oceans and other waterways for cooling.
Scientists say fish, larvae and eggs are killed in the water-cooling process, which is used heavily in states with many older, mostly fossil-fuel plants.
In the lawsuit, the state and environmental groups accused the federal government of changing the rules so that power plants could avoid costly upgrades. The improvements would have protected the aquatic life sucked into cooling water intake pipes.
The appeals court noted that in an earlier decision it had rejected arguments that some species are nuisances and require eradication. The court had also dismissed the claim that other species respond to population losses by increasing their reproduction.
