Court Finds Massive Power Plant Fish Kills Illegal

EPA faulted for placing power plant profits over public trust.


Reed Super
Columbia University Environmental Law Clinic
212.854.3365 (ofc)
646.345.9658 (cell)

NEW YORK, NY – A three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled yesterday 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 environmentalists, fishermen and the public, 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.

"This historic decision validates what the environmental community has been saying for decades," said Alex Matthiessen, Hudson Riverkeeper and President of Riverkeeper, Inc. "The Clean Water Act requires use of the best technology available. By ignoring that requirement EPA has thwarted the will of Congress and repeatedly failed to protect fish and wildlife from needless devastation at the hands of power plants."

"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 explained, "Waterkeeper Alliance filed this lawsuit because EPA has ignored the Clean Water Act by allowing power plants to kill billions of fish each day. The solutions to this problem have been available, affordable and in common use for decades. With this victory, this indiscriminate and illegal slaughter will now stop."

The case is Riverkeeper, Inc., et al. v. U.S. Environmental Protection Agency, No. 04-6692-ag(L) (2nd Cir. Jan. 25, 2007).

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The winning coalition of Environmental Petitioners included: Riverkeeper, Inc., Natural Resources Defense Council, Waterkeeper Alliance, Soundkeeper, Inc., Scenic Hudson, Inc., Save The Bay—People For Narragansett Bay, Friends of Casco Bay, American Littoral Society, Delaware Riverkeeper Network, Hackensack Riverkeeper, Inc., New York/New Jersey Baykeeper, Santa Monica Baykeeper, San Diego Baykeeper, California Coastkeeper Alliance, Columbia Riverkeeper, Conservation Law Foundation, and Surfrider Foundation.

Riverkeeper is an independent, member-supported, not-for-profit organization whose mission is to safeguard the ecological integrity of the Hudson River, its watersheds and the New York City drinking water supply.

Waterkeeper Alliance is non profit environmental organization that connects and supports over 150 member watershed groups to provide a voice for waterways and their communities worldwide. Each of these groups and their members have an express mission to preserve and protect their local waterbodies.

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

  1. 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.
  2. 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. 
  3. 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. 
  4. In 1993, after years of frustration at agency failure to require protective technology, 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.