Editorials

“A win for the fish?” an Editorial by the Journal News

“A new federal appeals court decision regarding the environmental health of the Hudson River is as murky as the waterway itself. The state Department of Environmental Conservation sees favor in the decision. The embattled owners of the Indian Point nuclear power plants find vindication in it. The environmental group Riverkeeper puts the ruling in the win column as well. If fish could read, they too, no doubt, would find something to cheer in the ruling, as fractured as it is. A few things are clear: Hudson polluters like Indian Point need to move more quickly to environment-friendly technology, state environmental officials can and should hold power plants and other industries to higher standards, and the fish and other aquatic life are by no means out of the woods. The legal case involved federal Environmental Protection Agency regulations issued in January 2002 governing the cooling systems to be used by new power plants and factories on the Hudson, a waterway that has long been the lifeblood of the region, serving both commercial and ecological needs. A federal rule challenged by environmental groups allowed new facilities to use vast quantities of river water for plant cooling, in a process resulting in wholesale death of aquatic life, so long as the facilities also adopted so-called restoration programs — for example, creating new habitat for fish, such as wetlands, or instituting fish-restocking programs. The shorthand: It’s OK for plants to kill, so long as they restore life elsewhere. A three-judge panel of the U.S. Court of Appeals for the Second Circuit in Albany ruled Wednesday that the EPA rule violated the federal Clean Water Act. The court said that restoration or remediation programs, while beneficial, only correct environmental damage; they “do not minimize those impacts in the first place.” In a victory for environmental groups, the court said the EPA lacked authority to sanction killing under such a scheme. “We are extremely pleased that the court prohibited the use of restoration measures as a ruse to avoid installing state-of-the-art technology” that would avoid such ecological harm, Alex Matthiessen, director of Riverkeeper, one of the winning plaintiffs in the suit against the EPA, told staff reporter Roger Witherspoon. Here’s where sorting out the winners and losers gets tricky. In November, the state Department of Environmental Conservation issued a draft permit to Entergy Nuclear Northeast, the owner of the Indian Point plants in Buchanan, allowing the facilities to continue the disfavored plant-cooling method for another 10 years or so, provided Entergy contributed $24 million annually to a restoration fund — of the sort panned in the court decision. The DEC, which should have held Entergy to a higher standard and required Indian Point to invest in more environmentally friendly technology now, instead of issuing Entergy what in effect is a 10-year bye on environmental rules, notes that the court decision only addresses rules applying to new plants, not existing ones like Indian Point. EPA rules governing existing facilities don’t come out until Feb. 16. Entergy, meanwhile, applauds the ruling because it (1) acknowledges the difficulties that aged plants face in modernizing, and (2) rejects the sort of flimsy restoration programs embraced by the state. Entergy still looks to maintain the status quo on the Hudson, which means continuing operations without investing major sums in either restoration programs or new technology. Like Entergy, Riverkeeper views the decision as an attack on restoration programs broadly, applying to those launched by new and old plants alike. But unlike Entergy, Riverkeeper contends that the end of restoration programs means plants like Indian Point will have to pony up for the best (think costly) technology available. Where does all this leave the fish? Better off in theory, but no doubt back in court.”

This editorial originally appeared in the Journal News

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