Supreme Court Case Could Affect Nearly 550 Power Plants

Can you put a price on protecting river ecosystems and wildlife? And can you use that to comparison-shop for power plant cooling systems? On Dec. 2, the US Supreme Court heard arguments in a case that could decide whether the Clean Water Act (CWA) allows EPA to weigh costs and benefits when determining the best technology available for the cooling water intake structures at existing power plants.

• Oral argument transcript.

The case, Entergy Corp. vs. Riverkeeper Inc. (07-588), involves the Indian Point nuclear power plant in Buchanan, NY. Like many conventional and nuclear power plants, Indian Point takes in a huge volume of river water daily in its "one-pass" cooling system (1950s-era technology). At issue is whether EPA can require Entergy to pay to upgrade Indian Point's cooling system, considering the environmental impacts of the existing system. Specifically fish eggs, smaller fish, and other aquatic organisms are destroyed when sucked into the intake. Also, the water returned to the ecosystem is warmer.

Section 316(b) of the CWA, which covers thermal discharges, requires power plants to employ the best technology available to protect fish and other aquatic life. In 2004 EPA established national regulations for cooling water intake systems at existing power plants, which are used in NPDES permit decisions. The "Phase II Rule" applied to over 500 existing power plants that withdraw more than 50 million gallons of water per day.

• EPA Press: Enesta Jones, 202-564-7873.

This 2004 Electric Light & Power magazine story by environmental engineers Daniel Marmer and Kenneth Snell explains power plants' options for complying with these regulations.

Several states and environmental organizations immediately challenged the Phase II rule, which has since been winding its way through the courts. This Supreme Court case is the culmination of that battle. According to the Supreme Court's case summary, "The Second Circuit, deferring to EPA, held that EPA has authority to retrofit existing facilities. Siding with environmental petitioners and against EPA, the court also held that EPA's weighing of costs and benefits is limited to a narrow 'cost-effectiveness' test."

• Second Circuit opinion.
• Riverkeeper: Case backgrounder. Info on power plant cooling technologies. Press: Renee Cho, 914-478-4501 x239. Richard Lazarus, Professor of Law and Faculty Director of the Supreme Court Institute at the Georgetown University Law Center, argued Riverkeeper's case: 202-662-9129, email, bio.

In the Supreme Court of the US (SCOTUS) blog on Dec. 8, attorney Max Schwartz offered an overview of the oral arguments: "Several Justices pressed [Maureen Mahoney, arguing for Entergy] and [Deputy Solicitor General Daryl Joseffer, arguing for the EPA in support of Entergy] to explain how a cost-benefit analysis would be conducted; Justice Souter seemed particularly concerned with how to value the natural life being protected in comparison to the expense of plant retrofits, as well as how cost-benefit analysis could be implemented without severely undermining the technology-forcing aspects of Section 316(b)." Oral argument overview.

Schwartz also reported: "Justice Breyer seemed to extend an olive branch to both sides of the case, sketching out a vision of 316(b) in which costs were taken into account, and even balanced against benefits, but only in a limited fashion to prevent absurd results; in short, very similar to the 'wholly disproportionate' test the EPA had been using previous to this litigation. There must be, 'a way of [balancing costs] that they have some discretion over, that doesn't involve some enormously elaborate thing,' he said, 'and that's what I'm searching for.'"

• Entergy press: Alex Schott, 504-576-4238.
• For a list of power plants likely to be subject to the Phase II rule, search EPA's PCS database using Envirofacts. Query the database using SIC code 4911 and check the box for "Major dischargers only." You will have to use additional reporting to verify that the particular plant is subject to the rule.