Entergy v. Riverkeeper
Encyclopedia
Entergy v Riverkeeper was a case decided at the US Supreme Court on April 1, 2009. This case reviews the United States Environmental Protection Agency
's (EPA) interpretation of the Clean Water Act
regulations with regards to cooling water intakes for power plants. Existing facilities are mandated to use the "Best Technology Available" to "minimize the adverse environmental impact." The importance of this case is whether the agency may use a cost-benefit analysis
(CBA) in choosing the Best Technology Available also known in the industry as Best Available Technology
or (BAT) to meet the National performance standards (NPS). Reversing a lower court opinion, in a 5 - 1 - 3 ruling the court decided to uphold EPA's decision as reasonable to allow CBA when determining BAT to maintain national environmental standards.
power plants generating an aggregated 30,000 megawatts of electrical capacity. Indian Point Energy Center
is a subsidiary of Entergy Corporation operating a three-unit nuclear power
plant in Buchanan, New York
, the facility at issue in this case.
Respondent: Riverkeeper
is a member-supported environmental protection organization dedicated to defending the Hudson River
and its tributaries for New York City and Hudson Valley residents. Over the past four decades Riverkeeper has been successful as the public's watchdog in bringing hundreds of pollution violations to justice and protecting drinking water for local communities. Riverkeeper has an on going interest in replacing Indian Point nuclear power plant with renewable energy.
This case is a consolidation of three cases for review by the Supreme Court
Entergy Corporation v. Riverkeeper, Inc., et al.
PSEG Fossil LLC, et al., v. Riverkeeper, Inc., et al.
Utility Water Act Group, v. Riverkeeper, Inc., et al.
(TSCA) and the Federal Insecticide, Fungicide, and Rodenticide Act
( FIFRA) granted authority to weigh the cost and benefits in determining policy requirements. The remainder of the regulations rely mainly on harm-based or technology-based methodologies that clearly exclude cost-benefit analysis
(CBA) or at a minimum do not provide for it. The Clean Water Act
statute uses technology based methods to meet its standards. See Note 1.
Three pre- Entergy Supreme Court decisions offer historical guidance into the possible crafting of the CBA canon. Each of them address the priority of environmental health and safety concerns with the appropriate level of costs- benefit analysis.
Various States and environmental groups challenged the Bush Administration Environmental Protection Agency
's (EPA) recent interpretation of § 316(b) of the Clean Water Act
(CWA), 33 U.S.C. §1326(b), that allowed exceptions to power plants that diverged from national standards. The claim against the EPA was that the agency unreasonably interpreted the regulations of the CWA when it determined that cost-benefit analysis was a method that could be used to determine the BAT when minimizing the adverse effects of cooling water intakes from power plants. This new interpretation of the statute allows for cost to influence the choice of "best technology available" lowering the standard reduction of "adverse environmental impact."
This section of the Clean Water Act requires permits from the National Pollutant Discharge Elimination System (NPDES) for facilities with cooling water intake structures ensure that the location, design, construction, and capacity of the structures reflect the best technology available to minimize detrimental impacts to the environment. Facility water cooling intakes remove billions of aquatic organisms each year from United States waterways. Most impacts are in early life stages of fish, crustaceans, sea turtles, and other aquatic life.
case was decided in the Second Circuit Court of Appeals. This court heard Riverkeeper, Inc. v. EPA, in 2006 and decided the case in 2007. Circuit Judge Sotomayor wrote the opinion for the court. In this decision the court stated that in order to meet the statute facilities could not use restoration enhancements (restocking fish, restoring habitat, etc.) to meet the National Performance Standard (NPS). Additionally, the court remanded the case to the EPA for clarification of EPA rules regarding NPS determination by CBA and the use of a variance for facilities claiming excessive costs to implement mandated technology. And most importantly to this case, the court decided that a CBA is not consistent with the requirement or using the best technology available for minimizing adverse environmental impact. The statutory language requires the EPA's selection of BAT be driven by technology. Cost can only be used to determine if remediation can be reasonably borne by the industry and determining the specific technology that meets the standards at the lowest cost. Thus suspending this aspect of Phase II as stated above.
's existing power plants have cooling water intake structures that threaten freshwater aquatic life by compression against intake screens (impingement) or suctioning organisms into the cooling system (entrainment
). They challenge the Second Circuit Court of Appeals decision in Riverkeeper v EPA 2007 (see prior case above) that CBA cannot be used in interpretation of the Clean Water Act statute to determine NPS and BAT for existing power plants
Respondent
s support the Second Circuit's finding that the EPA's decision of site-specific cost-benefit variance provision and the use of CBA to determine NPS and BAT for existing facilities is not within the statute and remand the regulations to the agency for clarification.
in 1972, it directed the EPA to regulate these systems so as to "minimize adverse environmental impact". Currently there are 1260 existing facilities in the US that draw at least 2 million USgals (7,570.8 m³) a day. It is estimated that 590 are manufacturing facilities and 670 are power plants.
The National Performance Standard (NPS), set by the EPA for new facilities is closed-cycle cooling systems, which can reduce impingement and entrainment by up to 98%. For existing facilities NPS in Phase II is "to reduce impingement mortality for all life stages of fish and shellfish by 80 to 95 percent from the calculation baseline; a subset of facilities must also reduce entrainment of such aquatic organisms by 60 to 90 percent from the calculation baseline."
In Phase II the EPA declined to specifically mandate closed-cycle cooling systems as BAT for existing facilities due to the compliant cost, which could be nine times the amount of other methods of reduction approaching the same standard. A cost-benefit analysis is incorporated to determine the standard. Existing facilities have alternatives to meet these reduction standards including existing technologies, additional fish protection technologies, and restoration measures. Phase II rules outline these alternatives and also permit site-specific variances from the NPS and if the permitting agency imposes restrictions that render results "as close to practical to the applicable performance standards", using "Best Professional Judgement".
Phase II update: In 2007 "EPA suspended the Cooling Water Intake Structure Regulations for existing large power plants as an unreasonable interpretation of the statute. This suspension was in response to the 2nd Circuit Court of Appeals decision in Riverkeeper, Inc., v. EPA. (2007)" (see below for details). In 2011 the Supreme Court ruling stated that Phase II was a reasonable interpretation of the statute reversing the lower court ruling allowing the use of Phase II.
The EPA does not dictate what type of system existing facilities need to use, but determines the standard that must be met. As guidance they use the terminology "Best Available Technology" which is defined here as "Any standard ... applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." Existing power plants of this type need to use an appropriate system that is the BAT that meets the standard of reduction. The EPA works with each facility to ensure compliance on a site by site basis and can issue variance under specific circumstances. The definition for BAT in the Clean Water Act does not include a CBA as part of the criteria for choosing this technology as it does in definitions of other types of technology for meeting different environmental health standards.
Justice Scalia delivers the opinion of the court.
In a five justice majority opinion written by Justice Scalia, the Court overturns the Second Circuit's ruling and found that Congress did not speak directly to whether or not cost-benefit analysis could be used in environmental standards under the "best technology available" verbiage. And found that the EPA's interpretation of the regulations to be reasonable. Four different CWA tests were mentioned in the opinion, however two received greater attention. One called for the use of "best available technology economically achievable" (BATEA) and the other test required the "best available demonstrated control technology" (BADT). The BATEA test was intended to allow progress toward the goal of eliminating the discharge of all pollutants. While the BADT test was applicable to new point sources and was aimed to advance the strategy of "where practicable", a standard allowing no pollutant discharges. The Court differentiated the BAT test from other tests on the basis of distinguishable language and interpreted the ambiguity to allow the agency greater discretion in determining the content of the test. See Note 2
In Whitman v. American Trucking Associations, Inc.
the Court ruled that Congress was "unambiguously barred cost considerations" in setting air quality standards under section 109 of the Clean Air Act
(CAA). The statute was silent on the issue because it had expressly allowed for the consideration of costs in other provisions of the act. However, concerning the CWA in regards to Entergy, the Court determined that statutory silence was not intended to limit the agency's discretion in consideration of a cost-benefit analysis when determining compliance with national environmental standards.
After determining that the statutes did not specifically address the "best technology available" language contained in the Clean Water Act, the second test was to determine if the agency's interpretation of the regulation was reasonable. This was in reference to the U.S. Supreme Courts decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
otherwise known as "Chevron deference". This case granted deference to the administrative agency's interpretation of its own regulations if the congressional intent was unclear. Although the court did not address the quality of the agency's interpretation in Entergy, it did find EPA to be reasonable in its interpretation.
Justice Breyer concurring in part and dissenting in part.
Although Justice Breyer agrees with the Court concerning the use of a cost-benefit analysis in determining environmental standards for water-intake systems, he also admonished the EPA for changing its stance on granting variances. Justice Bryer would have remanded the case to allow the EPA to explain the reasoning behind the change. In siding the majority in Entergy, Justice Breyer acknowledges that Congress had a reason to limit the weight of cost-benefit analysis for the following reasons. It may delay regulatory process, undervalue the true cost benefit of environmental externalities, and may reduce market incentives to developing advanced treatment technologies. However, on the other hand, forbidding CBA may lead to "irrational results" and since every "real choice" requires a comparison, an absolute prohibition would be difficult to enforce.
Justice Stevens, with whom Justice Souter and Justice Ginsburg join, dissenting.
Justice Stevens believed that Section 316(b) of the CWA prohibited the use of cost -benefit analysis based on the language and stated that Congress' intent was to play a temporal role for existing power plants until a more ambitious standard could be set. And declared that if a cost-benefit analysis were to be done, monetize all aquatic life not just the 1.8 percent believed to have commercial or recreational value. EPA's estimate of aquatic life value was $83 million for less than 2% of aquatic life as opposed to a measured $735 million for all aquatic life.
Held: The EPA permissibly relied on cost-benefit analysis in setting the national performance standards in providing for cost-benefit variances from those standards as part of the Phase II regulations. EPA's perspective is that 1326(b)'s "best technology available for minimizing adverse environmental impact" standard permits consideration of the technology costs and the relationship between the added cost and the related environmental benefit. EPA needs to demonstrate that it has a reasonable interpretation of the statute, not necessarily the only possible interpretation or even the interpretation deemed best by the courts.
Riverkeeper v EPA - Second Circuit Court of Appeals decided 2007
United States Environmental Protection Agency
The U.S. Environmental Protection Agency is an agency of the federal government of the United States charged with protecting human health and the environment, by writing and enforcing regulations based on laws passed by Congress...
's (EPA) interpretation of the Clean Water Act
Clean Water Act
The Clean Water Act is the primary federal law in the United States governing water pollution. Commonly abbreviated as the CWA, the act established the goals of eliminating releases of high amounts of toxic substances into water, eliminating additional water pollution by 1985, and ensuring that...
regulations with regards to cooling water intakes for power plants. Existing facilities are mandated to use the "Best Technology Available" to "minimize the adverse environmental impact." The importance of this case is whether the agency may use a cost-benefit analysis
Cost-benefit analysis
Cost–benefit analysis , sometimes called benefit–cost analysis , is a systematic process for calculating and comparing benefits and costs of a project for two purposes: to determine if it is a sound investment , to see how it compares with alternate projects...
(CBA) in choosing the Best Technology Available also known in the industry as Best Available Technology
Best Available Technology
Best available technology is a term applied with regulations on limiting pollutant discharges with regard to the abatement strategy. Similar terms are best available techniques , best practicable means or best practicable environmental option...
or (BAT) to meet the National performance standards (NPS). Reversing a lower court opinion, in a 5 - 1 - 3 ruling the court decided to uphold EPA's decision as reasonable to allow CBA when determining BAT to maintain national environmental standards.
Parties
Petitioner: Entergy Corporation is a energy company engaged primarily in electric power production and retail electric distribution operations. Entergy owns and operates both nuclear and fossil fuelFossil fuel
Fossil fuels are fuels formed by natural processes such as anaerobic decomposition of buried dead organisms. The age of the organisms and their resulting fossil fuels is typically millions of years, and sometimes exceeds 650 million years...
power plants generating an aggregated 30,000 megawatts of electrical capacity. Indian Point Energy Center
Indian Point Energy Center
Indian Point Energy Center is a three-unit nuclear power plant station located in Buchanan, New York just south of Peekskill. It sits on the east bank of the Hudson River, 38 miles north of New York City...
is a subsidiary of Entergy Corporation operating a three-unit nuclear power
Nuclear power
Nuclear power is the use of sustained nuclear fission to generate heat and electricity. Nuclear power plants provide about 6% of the world's energy and 13–14% of the world's electricity, with the U.S., France, and Japan together accounting for about 50% of nuclear generated electricity...
plant in Buchanan, New York
Buchanan, New York
Buchanan is a village located in the town of Cortlandt in Westchester County, New York. The population was 2,230 as of the 2010 census.The Indian Point nuclear power plant is located in Buchanan.-Geography:Buchanan is located at ....
, the facility at issue in this case.
Respondent: Riverkeeper
Riverkeeper
Riverkeeper is an environmental non-profit organization dedicated to the protection of the Hudson River and its tributaries, as well as the watersheds that provide New York City with its drinking water...
is a member-supported environmental protection organization dedicated to defending the Hudson River
Hudson River
The Hudson is a river that flows from north to south through eastern New York. The highest official source is at Lake Tear of the Clouds, on the slopes of Mount Marcy in the Adirondack Mountains. The river itself officially begins in Henderson Lake in Newcomb, New York...
and its tributaries for New York City and Hudson Valley residents. Over the past four decades Riverkeeper has been successful as the public's watchdog in bringing hundreds of pollution violations to justice and protecting drinking water for local communities. Riverkeeper has an on going interest in replacing Indian Point nuclear power plant with renewable energy.
This case is a consolidation of three cases for review by the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
Entergy Corporation v. Riverkeeper, Inc., et al.
PSEG Fossil LLC, et al., v. Riverkeeper, Inc., et al.
Utility Water Act Group, v. Riverkeeper, Inc., et al.
Background
Among the ten major environmental regulatory statutes enacted from the 1960s through the 1980s only the Toxic Substances Control ActToxic Substances Control Act
The Toxic Substances Control Act is a United States law, passed by the United States Congress in 1976, that regulates the introduction of new or already existing chemicals. It grandfathered most existing chemicals, in contrast to the Registration, Evaluation and Authorization of Chemicals ...
(TSCA) and the Federal Insecticide, Fungicide, and Rodenticide Act
Federal Insecticide, Fungicide, and Rodenticide Act
The Federal Insecticide, Fungicide, and Rodenticide Act , et seq. is a United States federal law that set up the basic U.S. system of pesticide regulation to protect applicators, consumers, and the environment. It is administered by the Environmental Protection Agency and the appropriate...
( FIFRA) granted authority to weigh the cost and benefits in determining policy requirements. The remainder of the regulations rely mainly on harm-based or technology-based methodologies that clearly exclude cost-benefit analysis
Cost-benefit analysis
Cost–benefit analysis , sometimes called benefit–cost analysis , is a systematic process for calculating and comparing benefits and costs of a project for two purposes: to determine if it is a sound investment , to see how it compares with alternate projects...
(CBA) or at a minimum do not provide for it. The Clean Water Act
Clean Water Act
The Clean Water Act is the primary federal law in the United States governing water pollution. Commonly abbreviated as the CWA, the act established the goals of eliminating releases of high amounts of toxic substances into water, eliminating additional water pollution by 1985, and ensuring that...
statute uses technology based methods to meet its standards. See Note 1.
Three pre- Entergy Supreme Court decisions offer historical guidance into the possible crafting of the CBA canon. Each of them address the priority of environmental health and safety concerns with the appropriate level of costs- benefit analysis.
- In Tennessee Valley Authority v. HillTennessee Valley Authority v. HillTennessee Valley Authority v. Hill et al., or TVA v. Hill, 437 U.S. 153 , was a United States Supreme Court case. It is a commonly cited example of the canon of construction expressio unius est exclusio alterius .- Background :The Tennessee Valley Authority started the building of the Tellico Dam...
the Court interpreted section 7 of the Endangered Species ActEndangered Species ActThe Endangered Species Act of 1973 is one of the dozens of United States environmental laws passed in the 1970s. Signed into law by President Richard Nixon on December 28, 1973, it was designed to protect critically imperiled species from extinction as a "consequence of economic growth and...
as discontinuing the construction of the Tellico Dam after the project was more than 80 percent complete and had spent over $50 million in order to save the snail darter (an unknown species at the time).
- In American Textile Manufacturers Institute, Inc. v. Donovan the court addressed whether the Occupational Safety and Health AdministrationOccupational Safety and Health AdministrationThe United States Occupational Safety and Health Administration is an agency of the United States Department of Labor. It was created by Congress of the United States under the Occupational Safety and Health Act, signed by President Richard M. Nixon, on December 29, 1970...
(OSHA) could adopt cost-benefit analysis with regards to cotton dust standards for employees. The Court ruled that CBA was not authorized by the statute because feasibilityFeasibilityFeasibility may refer to:*Logical possibility, that which is achievable.*Feasible region, a region that satisfies mathematical constraints*Feasibility study, a preliminary study to determine a project's viability....
analysis was authorized.
- In Whitman v. American Trucking Associations, Inc.Whitman v. American Trucking Associations, Inc.Whitman v. American Trucking Associations, Inc., , was a case decided by the United States Supreme Court in which the Environmental Protection Agency's National Ambient Air Quality Standard for regulating ozone and particulate matter was challenged by the American Trucking Association along with...
, the Court held that section 109 of the Clean Air ActClean Air ActA Clean Air Act is one of a number of pieces of legislation relating to the reduction of airborne contaminants, smog and air pollution in general. The use by governments to enforce clean air standards has contributed to an improvement in human health and longer life spans...
(CAA) prohibited cost considerations when setting the National Ambient Air Quality StandardsNational Ambient Air Quality StandardsThe National Ambient Air Quality Standards are standards established by the United States Environmental Protection Agency under authority of the Clean Air Act that apply for outdoor air throughout the country...
(NAAQS) In a unanimous Court, Justice Scalia considered that section 109 requires the public to be protected with "an adequate margin of safety" and that the CAA had specific reference to cost considerations in related provisions but not with setting the NAAQS.
Various States and environmental groups challenged the Bush Administration Environmental Protection Agency
United States Environmental Protection Agency
The U.S. Environmental Protection Agency is an agency of the federal government of the United States charged with protecting human health and the environment, by writing and enforcing regulations based on laws passed by Congress...
's (EPA) recent interpretation of § 316(b) of the Clean Water Act
Clean Water Act
The Clean Water Act is the primary federal law in the United States governing water pollution. Commonly abbreviated as the CWA, the act established the goals of eliminating releases of high amounts of toxic substances into water, eliminating additional water pollution by 1985, and ensuring that...
(CWA), 33 U.S.C. §1326(b), that allowed exceptions to power plants that diverged from national standards. The claim against the EPA was that the agency unreasonably interpreted the regulations of the CWA when it determined that cost-benefit analysis was a method that could be used to determine the BAT when minimizing the adverse effects of cooling water intakes from power plants. This new interpretation of the statute allows for cost to influence the choice of "best technology available" lowering the standard reduction of "adverse environmental impact."
Statute and regulations
Clean Water Act 33 U.S.C. 1326(b) section 316.This section of the Clean Water Act requires permits from the National Pollutant Discharge Elimination System (NPDES) for facilities with cooling water intake structures ensure that the location, design, construction, and capacity of the structures reflect the best technology available to minimize detrimental impacts to the environment. Facility water cooling intakes remove billions of aquatic organisms each year from United States waterways. Most impacts are in early life stages of fish, crustaceans, sea turtles, and other aquatic life.
Prior case
The case preceding this Supreme CourtSupreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
case was decided in the Second Circuit Court of Appeals. This court heard Riverkeeper, Inc. v. EPA, in 2006 and decided the case in 2007. Circuit Judge Sotomayor wrote the opinion for the court. In this decision the court stated that in order to meet the statute facilities could not use restoration enhancements (restocking fish, restoring habitat, etc.) to meet the National Performance Standard (NPS). Additionally, the court remanded the case to the EPA for clarification of EPA rules regarding NPS determination by CBA and the use of a variance for facilities claiming excessive costs to implement mandated technology. And most importantly to this case, the court decided that a CBA is not consistent with the requirement or using the best technology available for minimizing adverse environmental impact. The statutory language requires the EPA's selection of BAT be driven by technology. Cost can only be used to determine if remediation can be reasonably borne by the industry and determining the specific technology that meets the standards at the lowest cost. Thus suspending this aspect of Phase II as stated above.
This case
PetitionerPetitioner
A petitioner is a person who pleads with governmental institution for a legal remedy or a redress of grievances, through use of a petition.-In the courts:The petitioner may seek a legal remedy if the state or another private person has acted unlawfully...
's existing power plants have cooling water intake structures that threaten freshwater aquatic life by compression against intake screens (impingement) or suctioning organisms into the cooling system (entrainment
Entrainment (hydrodynamics)
Entrainment is the movement of one fluid by another.One fluid moving in another can push or pull the other along with it. Eductors or eductor-jet pumps are an excellent example. They are used onboard many ships to pump flooded out compartments in the event of an accident. Seawater is pumped to...
). They challenge the Second Circuit Court of Appeals decision in Riverkeeper v EPA 2007 (see prior case above) that CBA cannot be used in interpretation of the Clean Water Act statute to determine NPS and BAT for existing power plants
Respondent
Respondent
A respondent is a person who is called upon to issue a response to a communication made by another. In legal usage, this specifically refers to the defendant in a legal proceeding commenced by a petition, or to an appellee, or the opposing party, in an appeal of a decision by an initial fact-finder...
s support the Second Circuit's finding that the EPA's decision of site-specific cost-benefit variance provision and the use of CBA to determine NPS and BAT for existing facilities is not within the statute and remand the regulations to the agency for clarification.
Adverse environmental impact
The process of pulling water into a facility from a natural body of water for use in industrial cooling can have a significant effect on living organisms in that body of water. Estimates for 2004 show that in just one day industry can pull as much as 279 million USgals (1,056,129.9 m³) of water into facilities for cooling purposes. The pressure and flow of this large volume of water can impinge large organisms like fish against intake points or entrain small organisms like plankton, eggs and larvae into the cooling system killing or injuring them. A single power plant can impinge a million adult fish in just three weeks. One plant can entrain some 3 - 4 billion smaller fish and shellfish in a year. This can have a destabilizing effect on local ecosystems. Nationwide, "the impingement and entrainment reduction benefits range from $73 million to $83 million per year. These benefits are primarily from improvements to commercial and recreational fishing." There are likely other benefits externalized in this equation such as higher functioning ecosystems, intrinsic value of non-fisheries species to name two. In light of these findings, when congress amended the Clean Water ActClean Water Act
The Clean Water Act is the primary federal law in the United States governing water pollution. Commonly abbreviated as the CWA, the act established the goals of eliminating releases of high amounts of toxic substances into water, eliminating additional water pollution by 1985, and ensuring that...
in 1972, it directed the EPA to regulate these systems so as to "minimize adverse environmental impact". Currently there are 1260 existing facilities in the US that draw at least 2 million USgals (7,570.8 m³) a day. It is estimated that 590 are manufacturing facilities and 670 are power plants.
EPA rule making
Three Phases (rules) have been created over the years by the EPA in response from industry, environmental groups and judicial review to clarify exactly what is needed to meet the statute. Promulgated 1326(b) regulations making the best technology available determination on a case-by-case basis for both Phase I and Phase II facilities.- Phase I regulations (created in 2001) govern new cooling water intake structures and mandate closed-cycle cooling systems as BAT.
- Phase II (2004) regulations apply generally to large existing facilities and outlines alternatives to closed-cycle cooling to meet reduction standards.
- Phase III (2006) addresses certain existing facilities and new coastal and offshore facilities, not an issue in this case.
The National Performance Standard (NPS), set by the EPA for new facilities is closed-cycle cooling systems, which can reduce impingement and entrainment by up to 98%. For existing facilities NPS in Phase II is "to reduce impingement mortality for all life stages of fish and shellfish by 80 to 95 percent from the calculation baseline; a subset of facilities must also reduce entrainment of such aquatic organisms by 60 to 90 percent from the calculation baseline."
In Phase II the EPA declined to specifically mandate closed-cycle cooling systems as BAT for existing facilities due to the compliant cost, which could be nine times the amount of other methods of reduction approaching the same standard. A cost-benefit analysis is incorporated to determine the standard. Existing facilities have alternatives to meet these reduction standards including existing technologies, additional fish protection technologies, and restoration measures. Phase II rules outline these alternatives and also permit site-specific variances from the NPS and if the permitting agency imposes restrictions that render results "as close to practical to the applicable performance standards", using "Best Professional Judgement".
Phase II update: In 2007 "EPA suspended the Cooling Water Intake Structure Regulations for existing large power plants as an unreasonable interpretation of the statute. This suspension was in response to the 2nd Circuit Court of Appeals decision in Riverkeeper, Inc., v. EPA. (2007)" (see below for details). In 2011 the Supreme Court ruling stated that Phase II was a reasonable interpretation of the statute reversing the lower court ruling allowing the use of Phase II.
Main issue - Best Available Technology - BAT
The main issue for the court was to decide is if the Clean Water Act statute language is unambiguous or not and whether the EPA interpretations (rules - see below) were reasonable. At the heart of the issue is if the EPA is authorized to consider CBA in determining BAT when meeting the NPS to "minimize adverse environmental impact."The EPA does not dictate what type of system existing facilities need to use, but determines the standard that must be met. As guidance they use the terminology "Best Available Technology" which is defined here as "Any standard ... applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." Existing power plants of this type need to use an appropriate system that is the BAT that meets the standard of reduction. The EPA works with each facility to ensure compliance on a site by site basis and can issue variance under specific circumstances. The definition for BAT in the Clean Water Act does not include a CBA as part of the criteria for choosing this technology as it does in definitions of other types of technology for meeting different environmental health standards.
Decision
The judgement of the court of appeals is reversed and remanded.Justice Scalia delivers the opinion of the court.
In a five justice majority opinion written by Justice Scalia, the Court overturns the Second Circuit's ruling and found that Congress did not speak directly to whether or not cost-benefit analysis could be used in environmental standards under the "best technology available" verbiage. And found that the EPA's interpretation of the regulations to be reasonable. Four different CWA tests were mentioned in the opinion, however two received greater attention. One called for the use of "best available technology economically achievable" (BATEA) and the other test required the "best available demonstrated control technology" (BADT). The BATEA test was intended to allow progress toward the goal of eliminating the discharge of all pollutants. While the BADT test was applicable to new point sources and was aimed to advance the strategy of "where practicable", a standard allowing no pollutant discharges. The Court differentiated the BAT test from other tests on the basis of distinguishable language and interpreted the ambiguity to allow the agency greater discretion in determining the content of the test. See Note 2
In Whitman v. American Trucking Associations, Inc.
Whitman v. American Trucking Associations, Inc.
Whitman v. American Trucking Associations, Inc., , was a case decided by the United States Supreme Court in which the Environmental Protection Agency's National Ambient Air Quality Standard for regulating ozone and particulate matter was challenged by the American Trucking Association along with...
the Court ruled that Congress was "unambiguously barred cost considerations" in setting air quality standards under section 109 of the Clean Air Act
Clean Air Act
A Clean Air Act is one of a number of pieces of legislation relating to the reduction of airborne contaminants, smog and air pollution in general. The use by governments to enforce clean air standards has contributed to an improvement in human health and longer life spans...
(CAA). The statute was silent on the issue because it had expressly allowed for the consideration of costs in other provisions of the act. However, concerning the CWA in regards to Entergy, the Court determined that statutory silence was not intended to limit the agency's discretion in consideration of a cost-benefit analysis when determining compliance with national environmental standards.
After determining that the statutes did not specifically address the "best technology available" language contained in the Clean Water Act, the second test was to determine if the agency's interpretation of the regulation was reasonable. This was in reference to the U.S. Supreme Courts decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 , was a case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers...
otherwise known as "Chevron deference". This case granted deference to the administrative agency's interpretation of its own regulations if the congressional intent was unclear. Although the court did not address the quality of the agency's interpretation in Entergy, it did find EPA to be reasonable in its interpretation.
Justice Breyer concurring in part and dissenting in part.
Although Justice Breyer agrees with the Court concerning the use of a cost-benefit analysis in determining environmental standards for water-intake systems, he also admonished the EPA for changing its stance on granting variances. Justice Bryer would have remanded the case to allow the EPA to explain the reasoning behind the change. In siding the majority in Entergy, Justice Breyer acknowledges that Congress had a reason to limit the weight of cost-benefit analysis for the following reasons. It may delay regulatory process, undervalue the true cost benefit of environmental externalities, and may reduce market incentives to developing advanced treatment technologies. However, on the other hand, forbidding CBA may lead to "irrational results" and since every "real choice" requires a comparison, an absolute prohibition would be difficult to enforce.
Justice Stevens, with whom Justice Souter and Justice Ginsburg join, dissenting.
Justice Stevens believed that Section 316(b) of the CWA prohibited the use of cost -benefit analysis based on the language and stated that Congress' intent was to play a temporal role for existing power plants until a more ambitious standard could be set. And declared that if a cost-benefit analysis were to be done, monetize all aquatic life not just the 1.8 percent believed to have commercial or recreational value. EPA's estimate of aquatic life value was $83 million for less than 2% of aquatic life as opposed to a measured $735 million for all aquatic life.
Held: The EPA permissibly relied on cost-benefit analysis in setting the national performance standards in providing for cost-benefit variances from those standards as part of the Phase II regulations. EPA's perspective is that 1326(b)'s "best technology available for minimizing adverse environmental impact" standard permits consideration of the technology costs and the relationship between the added cost and the related environmental benefit. EPA needs to demonstrate that it has a reasonable interpretation of the statute, not necessarily the only possible interpretation or even the interpretation deemed best by the courts.
Future implications
- The United States Supreme Court issued an important decision interpreting Federal Water Pollution Control Act section 316(b) to allow the United States Environmental Protection Agency to include cost/benefit considerations in establishing technology-based requirements for cooling water intake structures.
- Part of EPA’s Phase II regulations are upheld so there will be greater regulatory certainty for industry and federal and state agencies. With this judgement here will also be greater regulatory flexibility for industry. However, this regulatory flexibility also may result in significant environmental harm as facilities are not required to implement technology that arguably is the most protective of the nation’s waterways.
- New EPA Rule: As a result of the Supreme court remand in early 2011 the Obama Administration EPA has proposed and is seeking comment on new rules that further clarify requirements for cooling water intake structures at existing facilities (Phase II). The proposal would affect roughly 1260 existing facilities and will further clarify technology to cost effectively minimize negative environmental impact at these sites. Additionally, the rule sets specific limits of impact and specifies reduction levels for facilities and may choose a less strict use of CBA in determining technology.
- Entergy v Riverkeeper designates an important move in the Court's orientation towards increasing the weight of CBA with Environmental Health and Safety (EHS) regulations. Entergy joins a list of recent Supreme Court rulings that seem aimed at rebalancing the perceived excesses of strict EHS legislation of the 1960s, 1970s, and the 1980s Five major environmental decisions from 2008 to 2009, including Entergy, have resulted in adverse environmental decisions. Four of the five preserved executive branch judgments that precluded environmental protections. See Note 3
See also
Riverkeeper et. al. v EPA - Second Circuit Court of Appeals decided 2004Riverkeeper v EPA - Second Circuit Court of Appeals decided 2007