Supreme Court will hear Clean Water Act case on power plant water intakes

The Supreme Court has announced that it will hear a case to determine whether the federal EPA has the authority to consider costs and benefits in assessing the “best technology available” for cooling water intakes at power plants.  The case involves section 316(b) of the Clean Water Act, which is intended to protect fish, shellfish, and other aquatic organisms from being harmed or killed by regulating the cooling water intake structures at power-producing facilities.  The EPA, relying on a cost-benefit test, determined that closed-cycle cooling was not necessary for the largest and most harmful power plant intakes.  The federal court of appeals for the second circuit (based in New York) rejected the use of cost-benefit analysis, ruling that the CWA’s “best technology available for minimizing adverse environmental impact” standard permits some cost-effectiveness considerations, but a more protective technology cannot be rejected on a cost-benefit analysis.  See Riverkeeper, Inc. v. EPA, 475 F.3d 83 (2nd Cir. 2007).  The consolidated cases of Entergy Corporation v. EPA and PSEG & Utility Water Act Group v. Riverkeeper, nos. 07-598, 07-589 & 07-597, will be heard by the Supreme Court next term.