Last week, the U.S. Supreme Court upheld EPA regulations for power plant water intakes under the Clean Water Act in Entergy v. Riverkeeper. The legal issue in the case was whether the EPA has the administrative discretion to consider the relative costs and benefits of different control technologies under section 316(b) of the Clean Water Act. I know this sounds terribly boring, but it’s a hugely important issue for both aquatic ecology and regulatory policy.
The EPA regulations are intended to address one of the nastier side-effects of thermoelectric power plants (coal, nuclear, etc) - the killing of over 3 billion aquatic organisms every year from cooling water intakes. Power plants use massive amounts of water for cooling - the power plants subject to the EPA regulations take in 214 billion gallons of water per day. Critters that live in the water are killed by “impingement” (getting squashed against intake screens) and “entrainment” (getting sucked into the cooling equipment). To protect aquatic organisms and reduce water consumption, power plants can use various cooling technologies including closed-cycle cooling. The EPA already requires closed-cycle cooling technology for new power plants. However, the EPA determined that it was not cost effective to require closed-cycle cooling technology at existing power plants, since other technologies would also protect aquatic organisms (though not as well) at a lower cost.
This raises the difficult regulatory and legal question of how strict the new regulations should be in requiring technologies to protect aquatic health. The EPA weighed the benefits of stricter regulations (with a limited valuation based on commercial and sport fishing) against the costs of the closed-cycle cooling technology and decided that the environmental benefits of stricter protections are not worth the economic costs. Instead, the EPA regulations would only require a much cheaper technology that is better than nothing, but not as good as closed-cycle cooling for aquatic health.
Environmental groups challenged the EPA regulation based on the plain wording of the Clean Water Act section 316(b), which requires “the best technology available for minimizing adverse environmental impact.” However, a divided Supreme Court (in an opinion by Justice Scalia) ruled that the Clean Water Act’s language does not “unambiguously” preclude cost-benefit analysis, thus leaving the EPA with the discretion to consider costs and benefits.
While environmental groups did not get the ruling they wanted from the Supreme Court, they may get the results they want from the Obama EPA. The EPA has the discretion to consider costs and benefits in setting regulations, but is certainly not required to do so. According to media reports, attorneys for the environmental groups remain optimistic that the Obama EPA will decide against using cost-benefit analysis in setting Clean Water Act standards, as the valuation of environmental protection is highly subjective and tends to undervalue having health waterways.