Fall 2015: Vol. 18, No. 1

Second Circuit to Decide Whether Power Plant Regulations Will Protect Endangered Species

NEW YORK—NELC’s challenge to the way the U.S. Environmental Protection Agency (EPA) regulates the intake of cooling water at existing power plants and large factories will now be heard by a panel of judges in New York City rather than in Richmond, Va. The court will also determine whether the EPA’s new rules contain sufficient protections for endangered species.

In 2014, numerous environmental and industry groups filed challenges to new EPA regulations governing the massive cooling water intake structures used by existing power plants and factories. All of these appeals were consolidated into one case and randomly assigned to the U.S. Court of Appeals for the Fourth Circuit in Richmond.

But NELC and other environmental group lawyers argued that the Second Circuit Court of Appeals in New York is the more appropriate court to decide this case, because it has already heard challenges to two earlier versions of the cooling water regulations. Over the objections of industry lawyers and the EPA, the Fourth Circuit agreed and transferred the case this past December.

Power plants and manufacturing facilities across the country kill hundreds of billions of fish and other aquatic species each year by withdrawing huge volumes of water from rivers, lakes, and estuaries to cool industrial machinery. Congress, in the Clean Water Act, directed the EPA to require these facilities to employ the “best technology available” for minimizing the adverse effects of cooling water intake.

But NELC attorneys, acting on behalf of Environment America and Environment Massachusetts, argue that the EPA unlawfully scrapped this mandate in favor of a case-by-case approach that allows factories to avoid installing the technology that the EPA has determined is the “most effective” at protecting aquatic life.

In addition, the Second Circuit ruled in April that its review of the cooling water regulations will also decide whether they were issued in violation of the Endangered Species Act. That law requires the EPA to consult with the National Marine Fisheries Service and the U.S. Fish and Wildlife Service (“the Services”) to determine whether the proposed regulations will be sufficiently protective of endangered and threatened aquatic species.

The environmental groups challenging the rule believe that the “biological opinion” issued by the Services is flawed, and that it contains a number of concessions to industry that are contrary to science and in conflict with the Services’ own prior findings on the effect of cooling water intake on imperiled species. The industry groups, on the other hand, argue that the EPA was too concerned about the needs of imperiled species, and insist that protections for these species be stricken from the regulations.

Briefing on both the Clean Water Act and the Endangered Species Act issues is expected to begin this fall.

City, County Join NELC: Exxon Ruling Should Be Overturned

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NEW ORLEANS—On May 15, NELC attorneys filed a 104-page opening brief with the federal Fifth Circuit Court of Appeals in New Orleans, urging the appellate court to set aside the ruling of a U.S. District Court judge who refused to order any sanctions against ExxonMobil despite clear evidence of years of Clean Air Act violations at the company’s Baytown, Tex., refinery and chemical plant complex.

One week later, on May 22, the City of Houston, the Harris County (Texas) district attorney’s office, and the public health group Air Alliance Houston filed a joint amicus curiae (friend of the court) brief in strong support of NELC’s position.

“As local government entities and public health advocates in the Harris County area,” they noted in their brief, “Amici have a unique perspective on the importance of this case to the health and well-being of the over 4 million residents of Harris County, which includes both the City of Houston and Exxon’s Baytown complex.”

NELC attorneys filed the lawsuit in 2010, on behalf of Environment Texas and the Sierra Club, alleging thousands of violations of air emission limits specified in the Clean Air Act permits issued to Exxon’s Baytown facilities. In December 2014, after a three-week trial held months earlier, U.S. District Judge David Hittner ruled that only 94—less than one percent—of Exxon’s violations were “actionable” under the Clean Air Act’s citizen suit provision.

Further, the judge declared that he would order no penalty or injunction against Exxon even if he had found all of the more than 18,000 days of violations in the record to have been actionable. Despite Exxon’s immense financial wherewithal—it is the world’s largest oil company—the judge determined that it would be “unduly burdensome on Exxon” to order it to comply with its permit limits, even though he also found that violations of those limits were likely to continue.

In their brief to the Fifth Circuit, NELC attorneys explained that Exxon’s violations were established by the undisputed factual record before the district court, which was drawn from Exxon’s own reports to state and federal agencies, and that the “actionability” of those violations could be ascertained simply by comparing the amounts of the various pollutants Exxon admitted releasing to the limits on those pollutants in the company’s permits.

NELC’s brief also details the serious- ness of many of Exxon’s violations, and the very real threat they pose to the public health.

The local amici parties agreed. “Studies commissioned by the City of Houston,” they wrote, “illustrate myriad ways that local air pollution, including toxic pollution, is harming human health. Many of Exxon’s violations released the very chemicals known to be responsible for this well-documented pollution.”

Amici also stressed to the Fifth Circuit that the 94 violations the district court did find to be actionable were alone enough to warrant a significant penalty: “Amici could find no other case where a court found so many harmful Clean Air Act violations but ordered no relief of any kind. Amici and people in the Houston-Baytown area whom they serve need this Court to reverse the district court’s decision and to ensure proper enforcement of the Clean Air Act’s requirements, which were designed to protect public health and safety.”

Exxon’s response is due to be filed in September.

NELC Welcomes New Paralegal Suzanna Buck

BOSTON—In August, Suzanna Buck joined NELC’s Boston office as the organization’s paralegal and office administrator.

Suzanna comes to NELC after completing a fellowship with Centro de Derechos Humanos y Ambiente, an Argentinian non-profit, where she researched a variety of technical is- sues related to the environmental and public health impacts of mining, brick oven pollution, and climate change, and co-authored a manual designed to facilitate community engagement in the issues surrounding hydraulic fracturing (fracking). While in Buenos Aires, Suzanna also served as a paralegal on environmental issues at an Argentinian law firm, and as a writer for an online journal covering Argentinian affairs.

Suzanna is a 2014 graduate of Columbia University, where she majored in Ecology and Evolutionary Biology. While at Columbia, she held a number of science-oriented internships and summer positions, and completed an evaluation for the New York City Parks Department of the effectiveness of “green roof” technology as a means of promoting sustainability.

These experiences led Suzanna to seek out a position with NELC. “I have increasingly come to believe that the only way to make significant headway on environmental issues is to change the behavior of major actors—governments and multinational corporations,” she notes. “And the best way to do that is to strengthen the laws and punish those who break them.”