Contact: Andrea Kott, Riverkeeper

914-478-4501 x 239

(Washington, D.C.) The U.S. Supreme Court today ruled that cost-benefit analysis is not categorically forbidden by the Clean Water Act provision governing cooling water intake structures, but also that EPA has the authority to decide not to engage in such analysis. The Court, therefore, left it to the Obama-Jackson Environmental Protection Agency (EPA) to decide whether and how to compare costs to benefits when it issues a new regulation for existing power plants.

Today’s decision determined only that EPA’s consideration of costs in relation to benefits is not statutorily prohibited on a categorical basis. Importantly, the Court did not require that cost-benefit be used, nor did the Court determine how or in which circumstances cost-benefit analysis may be used. Further, the Court recognized that EPA sought in this regulation only to avoid extreme disparities between costs and benefits, and the Court suggested that more robust forms of cost-benefit analysis might be prohibited by the section of the Clean Water Act in question. The Court also stated that Riverkeeper’s view of section 316(b), which the Second Circuit has agreed with (that cost-benefit analysis is not to be used at all), is also a reasonable interpretation of the law, and thus that reading would pass legal muster if EPA adopted it. Finally, the Court’s decision left undisturbed all of the other bases on which the lower court had rejected EPA’s regulation after the Bush administration issued it in 2004. The current administration will now have to issue a new regulation that conforms to the 2007 decision of the U.S. Court of Appeals for the Second Circuit, as modified in one limited respect by today’s Supreme Court ruling.

“We are disappointed, of course, that the Court did not affirm the lower court’s judgment in its entirety, but nonetheless pleased that the Court agreed that EPA is not required to use cost-benefit analysis and left it up to EPA on remand to decide to what extent, if any, cost benefit analysis should be used in regulating cooling water intake structures,” said Alex Matthiessen, Hudson Riverkeeper and President. “We are looking forward to working with EPA's new Administrator, whom we are confident will agree that the Bush EPA regulations failed to satisfy the Clean Water Act's mandate that the adverse environmental impacts of cooling water intake structures be minimized.”

Section 316(b) of the Clean Water Act (CWA) requires power plants to employ the best technology available to protect fish and other aquatic life. In 2004, EPA established national regulations for existing power plants as required by the CWA. (Regulations are necessary to specify how the BTA standard should be applied for cooling water intakes; without them, the law is very difficult for permit writers to apply.)

On July 26, 2004, Riverkeeper led a national coalition of environmental groups and worked closely with a coalition of six states led by Rhode Island in a legal challenge to these regulations because they set weak standards and allowed power plants to seek variances to BTA. In 2007, the U.S. Court of Appeals for the Second Circuit struck down the regulations, and ruled that, in establishing BTA, the Clean Water Act prohibits EPA from comparing costs to benefits and requires EPA to mandate use of the technology whose costs can reasonably be borne by industry.

Several energy companies, including Entergy Corporation, owner of the Indian Point nuclear power plant in Buchanan, NY, petitioned the court to review the decision. On December 2, 2008, Richard Lazarus, Professor of Law and Faculty Director of the Supreme Court Institute at the Georgetown University Law Center, argued the case before the U.S. Supreme Court on behalf of Riverkeeper.

The question before the Court was: “Whether Section 316(b) of the Clean Water Act, 33 U.S.C. § 1326(b), authorizes the Environmental Protection Agency (EPA) to compare costs with benefits in determining the ‘best technology available for minimizing adverse environmental impact’ at cooling water intake structures.” The Supreme Court did not accept for review the other questions decided by the Second Circuit in Riverkeeper’s favor.

Every day, power plants in the United States withdraw over 214 billion gallons from U.S. water bodies to cool their facilities, and kill billions of fish and aquatic creatures in the process. This is mostly due to the use of antiquated cooling systems, known as “once-through cooling,” which are often employed by older power plants. In contrast, closed-cycle cooling systems, which the EPA considers BTA for new plants, recirculate most of the water after dispersing heat in a cooling tower, reducing the amount of water withdrawn and the number of fish killed by over 95 percent.

“We have the technology to be smarter about the way we use water in our power plants. Rather than waste fresh water from our waterways every day to cool these facilities – killing billions of fish and heating up waterways in the process – we can re-circulate it and minimize the consequences. Regardless of whether or not the Supreme Court says power plants are allowed to continue with this wasteful and unnecessary process, the EPA has the authority to require better water use. EPA should do the right thing and call on power plants to use the smart water technology available to them,” said Nancy Stoner, Co-director of the Water Program, Natural Resources Defense Council.

“This was a national effort led by Riverkeeper and fought collectively by many communities and Waterkeepers across the country. The ramifications for the Hudson River are quite important, but the case has serious implications for nationwide efforts to develop new, less environmentally harmful electricity production,” said Scott Edwards, Legal Director of Waterkeeper Alliance. “The court’s decision recognizes EPA’s authority to consider the economic benefits of environmental protection. As with greenhouse gas emissions, there are available, affordable technologies to eliminate these unnecessary fish kills. We look forward to new regulations which require power plants to meet this challenge.’

Riverkeeper is an independent member-supported environmental organization. Riverkeeper’s mission is to protect the Hudson River, and its tributaries, and the New York City drinking water supply. Riverkeeper is a founding member of the Waterkeeper Alliance (www.waterkeeper.org), an international organization that works with over 180 Waterkeepers to protect waterways around the globe.

For more information, please visit www.riverkeeper.org.

The Supreme Court examined whether Congress, in enacting Clean Water Act section 316(b) in 1972, forbade EPA from comparing costs to benefits when determining what is the best technology available for minimizing adverse environmental impacts of cooling water intake structures.

The Supreme Court decision will have an important effect on many ongoing and future proceedings regarding existing power plants, mainly the hundreds of fossil fuel and nuclear facilities across the country that have cooling water intakes. The EPA will be required to draft a new rule based on the Supreme Court decision and the Second Circuit’s decision, dictating how BTA will be applied to cooling water intakes. Many ongoing proceedings will not wait for this new rule, however, and will be decided in the next 1-2 years in accordance with the Supreme Court’s ruling and the aspects of the Second Circuit’s ruling that were left intact, including Riverkeeper’s challenges to the draft permits for Indian Point, Danskammer, Roseton and Bowline.

The case against Indian Point regarding its SPDES permit is distinct from Riverkeeper’s intervention to oppose Indian Point’s application for a 20-year license extension from the Nuclear Regulatory Commission (NRC). The DEC and NRC proceedings regarding Indian Point run on parallel tracks. And both of those cases are distinct from the case the Supreme Court decided (which applies nationwide).

In August, 2008, the New York State DEC, which issues SPDES permits, affirmed that the Indian Point nuclear power plant’s cooling water intake system causes adverse environmental impacts on Hudson River fish, and ruled on the issues to be considered in the SPDES proceeding. Although Entergy has filed a lawsuit challenging DEC’s finding of “adverse” environmental impact, the DEC is moving forward with a trial-type hearing to determine whether closed-cycle cooling must be installed at Indian Point. Hearings on the draft SPDES permit, which would mandate closed cycle cooling, are tentatively scheduled for spring 2010.

This DEC finding supports Riverkeeper’s position in its Indian Point relicensing case in which Riverkeeper is challenging Entergy’s assertion that the once-through cooling system does not harm fish in the river and should therefore not be taken into consideration as part of the NRC’s environmental review during relicensing.

BACKGROUND

For background information visit - campaigns/river-ecology/fishable-river/