Posted on April 1, 2009 by Theodore Garrett
The Supreme Court upheld EPA’s decision not to mandate closed-cycle cooling systems, or equivalent reductions, for cooling water intake because the cost of closed-cycle would be nine times the estimated cost of compliance and because other technologies could approach the performance of closed-cycle operation. Entergy Corp. v. Riverkeeper, Inc., ___U.S. __(No. 07-588, April 1, 2009). EPA’s view that “best technology available for minimizing adverse environmental impact” allows consideration of the technology’s costs and of the relationship between those costs and environmental benefits is a reasonable interpretation of the statute, the Court held. When Congress wished to mandate the greatest feasible reduction in water pollution, it used plain language. The court noted that even respondents recognize that some comparison of costs and benefits is permitted. It remains to be seen whether the impact of the decision will be limited to Section 316 of the Clean Water Act or whether it will be relied on to support the proposition that EPA may consider costs and benefits in other contexts where not expressly precluded by statute.