Supreme Court EPA Cost/Benefit Decision

Forwarded from the April 1 Greenwire - (CWA / BTA /Cost-benefit)


LAW: Supreme Court rules for power plants on EPA water rule (04/01/2009)
Jennifer Koons, special to E&E


U.S. EPA may be forced to analyze the costs and benefits of new
regulations on power plants aimed at protecting marine life, a divided
Supreme Court ruled today in a defeat for environmental groups.


The decision reverses a 2007 ruling by the 2nd U.S. Circuit Court of
Appeals, which held that no cost-benefit test could be used to determine
the most environmentally friendly technology for withdrawing water from
rivers and streams to cool turbines.


At issue is a 2004 rule regulating water intakes on power plants that
use at least 50 million gallons of water a day to generate steam for
electricity. The rule gives power plants several compliance options --
not just the most expensive but most environmentally beneficial
"closed-cycle system" -- after purportedly considering the cost of the
technology and environmental benefits.


Section 316(b) of the Clean Water Act requires the location, design,
construction and capacity of cooling water intake structures to reflect
the "best technology available for minimizing adverse environmental
impact."


"The phrase 'best technology available,' even with the added
specification 'for minimizing adverse environmental impact,' does not
unambiguously preclude cost-benefit analysis," Justice Antonin Scalia
wrote for the 6-3 majority.


Justice Stephen Breyer filed an opinion concurring in part and
dissenting in part, noting that he believed Congress meant to allow a
narrow cost-benefit analysis. During oral arguments in December, Breyer,
who is often a swing vote on environmental matters, said he was torn on
finding the best way for EPA to consider costs while minimizing
environmental damage.


"I agree with the court that the relevant statutory language authorizes
the Environmental Protection Agency to compare costs and benefits,"
Breyer wrote in his concurring opinion. "Nonetheless the drafting
history and legislative history of related provisions makes clear that
those who sponsored the legislation intended the law's text to be read
as restricting, though not forbidding, the use of cost-benefit
comparisons. And I would apply that text accordingly."


In dissent, Justice John Paul Stevens argued that Congress never
intended to allow a cost-benefit analysis.


"Powerful evidence of Congress' decision not to authorize cost-benefit
analysis in the BTA standard lies in the series of standards adopted to
regulate the outflow, or effluent, from industrial powerplant," wrote
Stevens, joined by Justices Ruth Bader Ginsburg and David Souter.
"Passed at the same time as the BTA standard at issue here, the effluent
limitation standards imposed increasingly strict technology requirements
on industry."


The Bush administration had asked the court not to hear the consolidated
cases but said it would back industry groups if the justices granted
review.


The cases are Entergy v. EPA, 07-588; PSEG Fossil LLC v. Riverkeeper
Inc., 07- 589; and Utility Water Act Group v. Riverkeeper Inc., 07-597.