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Nov. 10 — Several industry groups said they will oppose a motion by environmental advocates to transfer a lawsuit challenging the Environmental Protection Agency's final rule for regulating cooling water intake systems to a different appellate court.
The organizations, which represent electric utilities, oil and gas producers, manufacturing facilities, and others, plan to answer by Nov. 17, the date set by the U.S. Court of Appeals for the Fourth Circuit for parties to respond to the motion. The environmental advocacy groups want to move the lawsuit from the Fourth Circuit to the Second Circuit.
In a joint motion filed Nov. 3 in the Fourth Circuit, the environmental groups said the transfer is appropriate because the rulemaking at the heart of the lawsuit came in response to the Second Circuit's remand of EPA's Phase I and Phase II cooling water intake rules. Phase II rules applied to large existing power plants, while Phase I applied to all new facilities.
“This case should be transferred to the Second Circuit in order to maintain continuity in the overall proceeding,” the groups said in their motion, adding that “under the multi-circuit venue selection rules, courts have held that where the same or an interrelated action was previously remanded by a court of appeals, a transfer to that appellate tribunal serves the interests of justice and sound judicial administration.”
Several lawsuits have been filed over the EPA's Aug. 15 final rule establishing standards for cooling water intake systems that would be protective of aquatic life. Namely, the final cooling water intake rule seeks to protect fish and aquatic life from being entrained and impinged by withdrawal of millions of gallons of water by cooling water intake systems found in factories and power plants.
A judicial panel in September used a random lottery system to choose the Fourth Circuit as the venue for consolidating into a single case the half-dozen challenges filed over the final cooling water intake rule.
The EPA has said it will take no position on the environmental group's motion.
Environmental groups represented by Riverkeeper, Environment America and Sierra Club filed lawsuits, challenging the final rule upon its publication, saying it doesn't do enough to protect the fish and aquatic life. The industry groups represented by the American Petroleum Institute, the Utility Water Act Group and Entergy and the Cooling Water Intake Coalition also filed separate challenges.
The final cooling water intake rule (RIN 2040-AE95) applies to 544 power plants and 521 factories that draw at least 2 million gallons of cooling water per day and use 25 percent of it for cooling purposes.
According to the EPA, the largest industrial use of cooling water is for thermoelectric generation, but cooling water also is used in the manufacture of aluminum, chemicals and allied products, food and kindred products, pulp and paper, refined petroleum products, and steel, as well as in other industries. The EPA has estimated that the 1,065 facilities withdraw 226 billion gallons of cooling water daily.
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The joint environmental groups' motion seeking a transfer in venue is available at http://www.bloomberglaw.com/public/document/Cooling_Water_Intake_Structure_v_EPA_Docket_No_1401931_4th_Cir_Se.
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