COURT OF APPEALS RULES IN FAVOR OF SOUNDKEEPER AND OTHER WATERKEEPERS

Big Victory for Long Island Sound -Thank you to all Soundkeeper supporters for making this possible!

A three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled Thursday that EPA cannot allow power plants to kill a trillion fish per year through their cooling water intakes. Cooling water intakes gulp in billions of gallons of river, lake and coastal water to cool power plant machinery. Along with the water, these intakes devour countless fish and fish larvae, devastating fish populations across the country.

In a major victory for the ecology of Long Island Sound, the Nation, Soundkeeper, the public and fishermen the court found that regulations issued by EPA in 2004 improperly rejected “closed cycle cooling,” a technology that cools plant machinery while nearly eliminating the need for large infusions of fresh water. This technology also greatly reduces the massive fish kills associated with power plant operations. The court also found that EPA violated the law by placing the profits of power companies above the protection of America’s fisheries, defying the direct mandate of Congress in 1972 to EPA to stop these unnecessary impacts.

“Since 1993 Soundkeeper, Riverkeeper and other Waterkeeper groups have slugged it out to end a major killer of our fish resource. The Court has concluded that EPA was in affect rewriting the Clean Water Act through its regulation and placing profits of plant operators above the public’s interest in the marine resource. This is what we do at Soundkeeper Inc., the tough stuff that requires years of dogged determination on behalf of the public and the Sound.” stated Backer.

Soundkeeper Backer thanked Attoney Reed Super of the Columbia Law School Environmental Litigation Clinic for the victory "Bulldogs have nothing on Reed Super. Reed is one of my hero's who gives of himself and inspires his students to excellence"

Background on the case and the issue

Most fish and other marine species are on the decline worldwide. There are many reasons for this based on both local and global reasons. Power plant intakes kill literally trillions of fish and larva in the Sound’s and Nations most sensitive and productive spawning and feeding habitats, the near shore waters. It’s easy to reason that the death of juvenile fish and countless numbers of larva will result in reduction of the breeding stocks and the animals that feed on these fish and other species. Plants such as Millstone in Waterford and those along our rivers have been documented to kill million upon millions of these marine creatures. In fact, in many cases power plants and other large cooling water intakes can exchange the volume of a bay’s water four and five times each day. It’s a big win for the Sound.

Terry Backer

Background: Fish Kills, Cooling Intake Technology and the Clean Water Act

  • Every year, electric generating and industrial plants withdraw more than 100 trillion gallons from U.S. waters for cooling, and kill the overwhelming majority of organisms in this massive volume by entraining them into the facility or impinging them on intake screens. This staggering mortality – trillions of fish, shellfish, plankton and other species at all life stages – has stressed and depleted aquatic, coastal and marine ecosystems for decades, and has contributed to the collapse of some fisheries.
  • A single large power plant can utilize hundreds of millions or even billions of gallons of cooling water per day before discharging the heated effluent directly into a lake, river or ocean. In contrast, a closed-cycle cooling system, which recirculates most of the water after dissipating the heat in a cooling tower and is standard technology for new plants, cuts withdrawals and fish kills by more than ninety-five percent.
  • Section 316(b) of the Clean Water Act requires such facilities to employ the “best technology available [BTA] to minimize adverse environmental impact.” Despite this direct mandate and the decades-old availability of cooling towers, industrial pressure and EPA neglect has prevented effective regulation.
  • In 1993, after years of frustration at agency failure to requireprotective technology, Soundkeeper and a coalition of environmental groups led by Riverkeeper sued to force EPA to finally promulgate cooling water intake standards, Riverkeeper, Inc. v. Whitman, U.S. District Court, Southern District of New York, No. 93-Civ.0314 (AGS).) and won a consent decree requiring EPA to promulgate such standards. The Phase I and Phase II rules were issued pursuant to that consent decree.

1/28/2007