Washington, D.C. — On April 1, 2009, the U.S. Supreme Court issued an opinion interpreting a relatively obscure but important provision of the Clean Water Act—a directive to the EPA to set standards for cooling water intake structures based on “the best technology available for minimizing adverse
environmental effects.”
Concluding that this language is “silent… with respect to all potentially relevant factors,” the court held that the EPA is free to consider the benefits of a particular technology in relationship to its costs when determining the “best” cooling water intake technology.
Because environmental benefits are often difficult to quantify, the use of cost-benefit analysis can weaken environmental standards.
This ruling, entitled Entergy Corp. v. Riverkeeper, Inc., could therefore lead to regulations that allow significant numbers of fish, eggs, and other aquatic organisms to continue being destroyed by getting drawn into industrial facilities with the intake of cooling water.
The court’s decision could have been worse, however. The industry groups who took this case to the Supreme Court had sought a much more sweeping ruling that would have opened the door to the use of cost-benefit analysis throughout the Clean Water Act and in other federal environmental regulations.
NELC attorneys successfully helped forestall that result by filing an amicus (friend of the court) brief on
behalf of Environment America and the Center for Biological Diversity.
In the brief, NELC urged the court not to disturb the technology-forcing structure of the Clean Water Act, which allows cost-benefit analysis only in a few specifically limited situations. Fortunately, the Supreme Court adopted this position. It explicitly declined to extend the reach of its opinion to other parts of the
Clean Water Act and noted the differences between those provisions and the cooling water intake language.