Cooling Water Intake Structure Coal. v. U.S. Envtl. Prot. Agency (2018)

Florida and the federal agencies ask us to follow Cooling Water Intake Structure Coalition v. EPA, 905 F.3d 49, 77 (2d Cir. 2018), where the court rejected an ESA challenge to an ITS that, like here, did not include take limits and instead relied upon a subsequent “technical assistance” process to set them.

We have explained that “an agency may modify a rule 19 through the notice-and-comment process so long as the agency’s modification 28 1 is rational and ‘the agency’s path may reasonably be discerned.’” Cooling 2 Water Intake Structure Coal. v. EPA, 905 F.3d 49, 71 (2d Cir. 2018) (quoting 3 Motor Vehicle Mfrs.

We have explained that “an agency may modify a rule 19 through the notice-and-comment process so long as the agency’s modification 28 1 is rational and ‘the agency’s path may reasonably be discerned.’” Cooling 2 Water Intake Structure Coal. v. EPA, 905 F.3d 49, 71 (2d Cir. 2018) (quoting 3 Motor Vehicle Mfrs.

In doing so, “we ask whether the agency’s action is arbitrary, capricious, or manifestly contrary to the statute.” Cooling Water Intake Structure Coal. v. EPA., 905 F.3d 49, 65 (2d Cir. 2018) (internal quotation marks omitted). “[W]e will accord deference to the agency’s interpretation of the statute so long as it is supported by a reasoned explanation . . . .” Catskill Mountains, 846 F.3d at 507 .

Cooling Water, 905 F.3d at 72 (“[T]he Rule obligates the Services to abide by those procedures.”).

Agency, 905 F.3d 49, 73-76 (2d Cir. 2018) (allowing for deferral of analysis when the agency action was a final rule promulgated by the EPA).

Agency, 12 F.4th 234 , 247 (2d Cir. 2021) (“[A]n agency may modify a rule through the notice-and-comment process so long as the agency’s modification is rational and ‘the agency’s path may reasonably be discerned.’” (quoting Cooling Water Intake Structure Coal. v. EPA, 905 F.3d 49, 71 (2d Cir. 2018))); see also Santander Consumer USA, Inc. v. City of Yonkers, No. 22-CV-8870, 2024 WL 4817649 , at *14 (S.D.N.Y.

Cooling Water, 905 F.3d at 72 (“[T]he Rule obligates the Services to abide by those procedures.”).

Agency, 905 F.3d 49, 65 (2d Cir. 2018) (noting that the agency 3 The First Circuit’s opinion in Town Of Winthrop v. F.A.A., 535 F.3d 1 (1st Cir. 2008) is of limited assistance given that the panel did not consider the exact issue presented here because the parties were litigating the accuracy of the agency’s assertions of privilege in a separate FOIA action.

Agency, 905 F.3d 49, 79 (2d Cir. 2018) (quoting Fund for Animals v. Kempthorne, 538 F.3d 124, 133 (2d Cir. 2008)); see also United States Sec. & Exch.

Agency, 905 F.3d 49, 61 (2d Cir. 2018) (internal quotation marks and alterations omitted).