Motion to Remand Challenge to Clean Water Act Rule Granted

ConocoPhillips Co. v. EPA, No. 06-60662, involved consolidated petitions for review of a Final Rule promulgated by the EPA pursuant to section 316(b) of the Clean Water Act (CWA).  The Fifth Circuit granted several parties' joint motion to remand and affirmed in part on the grounds that 1) pending a new rule, the EPA's CWA section 316(b) case-by-case permitting procedure, which was in place before the Phase III Rule at issue was promulgated, would remain in effect; 2) the EPA provided adequate notice of the economic-achievability test in the rule during rule making; and 3) the EPA's failure to estimate benefits for specific new facility locations did not render the process arbitrary or capricious.

As the court wrote: "Before us are various consolidated challenges to a Final Rule (the "Rule") promulgated by the Environmental Protection Agency (the "EPA") pursuant to § 316(b) of the Clean Water Act (the "Act" or the "CWA"). The Rule regulates the use of cooling water intake structures ("CWIS") for both existing and new offshore oil and gas extraction facilities. Originally, the environmental Petitioners (collectively "Riverkeeper") challenged the Rule as it applies to existing facilities, and the industry Petitioners (collectively "ConocoPhillips") challenged the Rule as it applies to new facilities. In light of the Supreme Court's decision in Entergy Co. v. Riverkeeper, however, Riverkeeper and the EPA have now jointly moved voluntarily to remand the existing-facilities portion of the Rule for reconsideration; Intervenor American Petroleum Institute ("Intervenor API") opposes remand."

Related Resources

• Full Text of ConocoPhillips Co. v. EPA, No. 06-60662