As expected, in the wake of the US EPA’s finalization of the cooling water intake structure rule, several groups filed lawsuits regarding the proposed rules. Cases were filed by environmental and industry groups in the First, Second, Fourth, Fifth, Sixth, Seventh, and Ninth Circuits. In the initial round of filings, industry groups focused on whether the minimum intake flow that triggers the rule should be set higher. Environmental groups, on the other hand, focused primarily on whether the rule’s failure to define closed-cycle cooling as the best technology available is a violation of the Clean Water Act (CWA).
In late September, the lawsuits were consolidated by the US Judicial Panel on Multidistrict Litigation into the Fourth Circuit by random drawing. The consolidation to the Fourth Circuit is fortuitous for the industry side, as it represents the Cooling Water Intake Structure Coalition’s preferred forum for review of the rule.
On October 3, the Utility Water Act Group, Entergy Corporation, Cooling Water Intake Structure Coalition, and American Petroleum Institute petitioned to intervene in the consolidated case. In support of the motion to intervene, the petitioners cited the US EPA’s anticipated cost of the rule—$275 to $297 million per year—pointing out that most of that cost would be borne by members of the petitioners’ groups. The petition to intervene is unopposed. While the environmental groups have yet to intervene in the consolidated Fourth Circuit case, we expect them to do so shortly. The environmental groups involved to date include: Sierra Club, Riverkeeper, Environment America and Environment Massachusetts.