Letter from the President
Robert F. Kennedy, Jr.

Killing Fish by the Trillions

The biggest tragedy is that the electric power industry has the resources and technology to eliminate most fish kills, but has aggressively fought every effort at reform.

A few years ago, New York State Conservation Officers boarded a dinghy belonging to a fisherman named Jimmy Bleakly and found a few dozen undersized striped bass that Bleakly intended for his table. Department attorneys asked a state court judge to fine Bleakly the full penalty provided by the law — $250 per fish, a ruinous amount for a blue-collar stiff like Bleakly. There is, of course, no excuse for taking undersized fish, but one thousand yards from where Bleakly was fishing, Consolidated Edison’s Indian Point Power Plant sucks in and kills as many as one million undersized Hudson River fish every day. Neither state nor federal officials have ever attempted to penalize Con Ed for its illegal fish kill. While fishermen are often blamed for collapsing fisheries, power plant cooling systems are often the worse culprit.

On waterways around the nation billions of fish are sucked into power plants and factories and killed each day. While most fishermen scrupulously observe size and catch limits, power utilities indiscriminately destroy American fishes on a scale that is hard to conceive. Consider this: According to its own paid consultants, the Salem Nuclear Power Plant on the Delaware River kills 412 million white perch and 2 billion bay anchovies each year — that plant alone is responsible for the collapse of the Delaware River’s principal fisheries.

The biggest tragedy is that the electric power plant industry has the resources and technology to eliminate most fish kills, but has aggressively fought every effort at reform. While the Clean Water Act for 35 years has made such fish kills illegal and required utilities to use the best available technologies to avoid killing fish, the industry, often working in cahoots with government regulators, has defied and subverted and disobeyed the law at every turn. Utilities lend each other experts, lawyers and lobbyists, and sponsor training sessions on how to defeat Clean Water Act requirements. By suing individual power plants over the years Waterkeepers have effected hard-won improvements. But the carnage continues. And wherever fish are slaughtered in these massive numbers, fisheries collapse and aquatic ecosystems fail.

Closed-cycle cooling — which recirculates water harmlessly like a car radiator — and other technologies can cut water use and fish kills by 95 percent. Yet, power plants across the country still use more than 60 trillion gallons of “once-through” cooling water and kill more than a trillion fish each year. Larger fish are crushed on the screens that filter debris out of the cooling water, while smaller fish, larva and other aquatic organisms are sucked inside the plant and superheated. Despite declining inland and coastal fisheries, industry and government allow these piscine slaughterhouses to flourish.
Stopping these massive fish kills is one of Waterkeeper Alliance’s highest priorities.

In the fall issue of Waterkeeper I wrote in this column about the birth of Hudson Riverkeeper and the Waterkeeper movement. The Hudson River Fisherman’s Association (Hudson Riverkeeper’s predecessor organization) launched the national battle against power plant fish kills in 1965. The successful battle to halt construction of Con Ed’s proposed Storm King Mountain pump storage facility galvanized the budding national environmental movement and provided the foundation for environmental law in the United States.

In the 1960’s Con Ed, the New York power utility, pursued several massive and absurd hydroelectric energy projects, including one to dam (and destroy) Niagara Falls. In 1964, Con Ed received a license from the Federal Power Commission to construct a pumped-storage hydroelectric facility on top of Storm King Mountain, a beautiful and historically significant promontory on the shore of the Hudson River in Cornwall, just north of West Point. In 1965, however, a federal court set aside the Storm King license and remanded the matter back to the Federal Power Commission.

The court stated that “The Commission’s renewed proceedings must include as a basic concern the preservation of natural beauty and national historic shrines, keeping in mind that, in our affluent society, the cost of a project is only one of several factors to be considered.” In addition, the court ruled that, “On remand, the Commission should take the whole fisheries question into consideration before deciding whether the Storm King project is licensed.”

That language opened up the courts to environmentalists for the first time in history. The Storm King decision gave environmentalists and fishermen “standing” to sue in cases where public waterways and fish would be harmed by pollution or damaging projects. By enlarging constitutional “standing” to embrace aesthetic, recreational and cultural injuries, the decision radically expanded the jurisdiction of federal courts, allowing them to hear cases by plaintiffs who wanted to protect public resources from polluters or developers. The court’s decision marked the birth of American environmental law.

The Storm King decision also required the first full environmental impact statement ever. In 1969, Congress codified the Storm King decision into the nation’s most important piece of environmental legislation, the National Environmental Policy Act (NEPA)—which forces federal agencies to assess environmental impacts of every major decision. The Storm King decision laid the constitutional groundwork for “citizen suits,” the critical enforcement provisions that make environmental law—from the Clean Water Act to the Endangered Species Act—function in absence of government enforcement. The Storm King fight had literally invented the term “environmental law” and launched a national movement for citizen protection of our environmental rights — the Waterkeepers.

But the battle over fish kills at power plants was far from over.
Concern about power plant intakes and fish kills was playing out in the licensing of five other Con Ed power plants, including the Indian Point nuclear reactor, just down the river from Storm King Mountain. In 1975, the Atomic Energy Commission agreed with the Hudson River Fishermen that catastrophic fish kills by those power plants could not be ignored. The new federal licenses required that all five plants install closed-cycle cooling system that would reduce the use of Hudson River water and fish kills by 95 percent.

Con Ed now wanted to resolve their public relations nightmares on Storm King and the power plants. After a decade of fierce political battle, the Hudson River Fishermen could no longer be shut out of the decision-making process by the power utility and state officials. Con Ed reached out to the Fishermen and other environmentalists to settle the lawsuit.

In December 1980, after 17 years of litigation, the parties announced the Hudson River Peace Treaty. The agreement required that Con Ed abandon the Storm King project, donate the land as a park, and fund millions of dollars in Hudson River rehabilitation and fishery research. In exchange, Con Ed would not immediately be required to convert the power plants to closed-cycle cooling systems. Instead, the company would design and install less expensive devices to prevent entrapment of larger fish on its intake screens and take other steps to protect eggs and larvae from being sucked into the intakes. Con Ed was temporarily spared the costs of constructing cooling towers while it investigated new technologies for reducing fish kills. Unfortunately, none of these technologies was successful in significantly mitigating the carnage.

The killing of hundreds of billions of fish each year continued.

In 1992 Hudson Riverkeeper and six other Waterkeeper programs operating on Long Island Sound, Delaware River, San Francisco Bay, New York/New Jersey Harbor, Puget Sound and Casco Bay formed the Waterkeeper Alliance. As their first major collective legal action filed suit against EPA for failure to enforce the Clean Water Act and stop power plant cooling water fish kills.

The 1972 Clean Water Act required EPA to promulgate regulations to minimize fish kills. But in 1974, 60 power utilities, under the leadership of the Edison Electric Institute, an industry trade group, successfully challenged EPA’s regulation. They based their case on a nit-picking technical error in the way EPA published the proposed regulations. Instead of republishing the new rules with a simple procedural fix, EPA inexplicably walked away from the rules, leaving a blank page in the federal register. This act of governmental collusion with the power industry allowed the power companies to operate without federal standards. The states were left holding the bag. Not surprisingly, no state had the expertise or stomach to challenge this powerful industry.

Waterkeeper’s 1993 suit asked the court to order EPA to finally create regulations to control fish kills. Recognizing the merit of our lawsuit EPA caved and immediately agreed to schedule new regulations. But again, the Edison Electric Institute and 58 power utilities challenged EPA’s agreement and succeeded in keeping the plan tied up in legal battles for more than a year.

Finally, in October 1995, a U.S. District Court judge ruled in our favor and ordered EPA to begin the regulatory process. Unfortunately that agreement (see Reed Super’s feature article) gave EPA an extraordinary seven years to develop regulations to stop the killing.

Then, on May 17, 2001, just as EPA was about to finally publish its new regulations, Vice President Dick Cheney moved in to derail the process and help the power industry violate the law. That industry had recently donated $48 million to the Bush/Cheney campaign. After three months of closed-door meetings with energy industry lobbyists, beginning immediately after President Bush’s inauguration, the Bush administration released Vice President Dick Cheney’s infamous energy plan. The plan skirted conservation and environmental protection and threw open public coffers for billions of dollars of subsidies for oil, coal and nuclear industries, plus tax breaks and deregulation.

Among the casualties of the administration’s energy plan was EPA’s plan to stop catastrophic power plant fish kills. Soon after the Cheney task force released its report, the White House Office of Management and Budget and industry lackeys (newly appointed to EPA political positions) replaced EPA’s proposed new rule with clever regulations that allowed business to proceed as usual.

Waterkeeper Alliance’s fight to stop cooling water intake fish kills continues on two fronts. Around the nation Waterkeepers are challenging individual power plants, forcing them to stop the carnage one at a time. Meanwhile, we are suing EPA to force the federal government to enforce the long-dormant Clean Water Act cooling water requirements.

Power plant fish kills are illegal. The savings for the energy industry are nominal, but the costs for commercial and recreational fishermen are enormous. Ultimately, this massive culling of America’s fish population contributes directly to what the American Academy for the Advancement of Science has warned is the imminent worldwide collapse of global fisheries.

Waterkeepers have long memories and no understanding of the word quit. Our fight to stop fish kills from power plants, a fight that began 40 years ago, won’t end until we have strong federal regulations, requiring all power plants to install closed-cycle cooling systems and until our waterways thrive with fish.