EPA’s Long-Delayed Cooling Water Rule Finally Out: Industry Wins Again; Fish (and the Rest of Us) Lose

by Amy Sinden

May 20, 2014

The EPA issued its long-awaited cooling water rule yesterday and the score appears to be:  Industry – home run; Fish – zero.   Which is to say, it’s bad news not just for the fish but also for all of us who depend on the health of our aquatic ecosystems – which is to say, everyone.  

This is the rule that governs the design standards for the massive cooling water intakes at power plants and other large industrial facilities that withdraw billions of gallons of water a day from our rivers, lakes and estuaries. In the process, they kill billions of fish and other aquatic organisms.   Congress was aware of this problem when it passed the Clean Water Act in 1972 and so included language directing the EPA to require those structures to “reflect the best technology available [BTA] for minimizing adverse environmental impact.”  

When EPA finally got around to issuing regulations implementing this provision in back in 2001, it started with new power plants, concluding that the “best technology available” was a system called “closed cycle cooling,” which recirculates the cooling water.  In this way, it dramatically reduces the amount of water withdrawn through intake structures when compared to the standard “once-through” system and significantly reduces the harm to fish (by up to 98%). 

But the rule issued yesterday, for existing facilities, stops far short of that.   It doesn’t actually require facilities to install any particular technology at all.  Instead, it gives them a whole list of options to choose from, one of which is basically, to convince your state agency that what you’re doing is good enough.  This not all that different from the old system, under which EPA basically punted these decisions to the states because they hadn’t gotten around to issuing a national rule yet.  That’s the system that gave us the status quo: lax standards and lots of dead fish.  

In fact, there’s one part of the rule that let’s industry wiggle out of installing protections for fish by convincing state permit writers that “the social costs are not justified by the social benefits.”   But that’s a standard that’s pretty much stacked against the fish.  Costs to industry of installing new technologies, after all, are easy to measure in dollar terms.  But what’s the dollar value of preserving a healthy aquatic ecosystem, or preventing the massacre of a population of striped bass?  Even EPA, with all its resources and after years of trying, was not able to quantify the vast majority of the benefits of the rule.  So how cash-strapped state agencies will be able to do what the EPA couldn’t is not clear.  

Recognizing the difficulty of conducting formal cost-benefit analysis in this context, EPA had initially proposed a much looser standard for the states, allowing them to “reject an otherwise available technology . . .  unless the social costs of compliance are wholly disproportionate to the social benefits.”   This would have been a much harder standard for industry to meet.   But the White House’s Office of Information and Regulatory Affairs (OIRA) pushed back and made EPA change it to the more formal benefits-must-justify-costs formula.  

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Also from Amy Sinden

Amy Sinden is the James E. Beasley Professor of Law at the Temple University Beasley School of Law in Philadelphia. She has been a visiting professor at the University of Pennsylvania Law School and at the Temple-Tsinghua Masters of Law program in Beijing,China. She is a member of the board of directors of the Center for Progressive Reform.

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