Term: 2008
Docket: 07-588
Entergy Corporation v. Riverkeeper, Inc., Et Al.
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07-588 ENTERGY CORPORATION V. RIVERKEEPER, INC. DECISION BELOW: 475 F3d 83 THE PETITIONS FOR WRITS OF CERTIORARI ARE GRANTED LIMITED TO THE FOLLOWING QUESTION: 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 CASES [07-588, 07-589, 07-597] ARE CONSOLIDATED AND A TOTAL OF ONE HOUR IS ALLOTTED FOR ORAL ARGUMENT. CERT. GRANTED 4/14/2008 QUESTION PRESENTED: This case involves regulation under the Clean Water Act (“CWA”) of the intake structures used by power plants to take in cooling water. After 30 years of regulating new facilities, the Environmental Protection Agency (“EPA”) promulgated a regulation requiring existing cooling water intake structures to be retrofitted to comply with EPA’s latest determination of the “best technology available for minimizing adverse environmental impact,” measured in terms of the potential effects on early life stages of fish. 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. The questions presented, all of which implicate splits in circuit court authority, are: 1. Whether the CWA provides EPA authority to impose new requirements under Section 316(b) of the Act, 33 U.S.C. § 1326(b), with respect to existing cooling water intake structures? 2. Whether a court should accord Chevron deference to an agency’s interpretation of its own statutory jurisdiction? 3. Whether Sections 301 and 316(b) of the CWA, 33 U.S.C. § 1301, 1326(b), limit EPA’s weighing of costs and benefits only to the Second Circuit’s “cost effectiveness” test? LOWER COURT CASE NUMBER: 04-6692ag - 04-6699ag
The U.S. Supreme Court case Entergy Corporation v. Riverkeeper, Inc., et al., 2008 revolved around the interpretation of a provision in the Clean Water Act that requires power plants to use "the best technology available for minimizing adverse environmental impact" in their cooling systems. Environmental groups argued that this meant power plants must use closed-cycle cooling systems, which recycle water and thus kill fewer fish and other aquatic life than once-through systems do. However, Entergy Corporation contended that cost-benefit analysis should be used to determine what constitutes "best technology." The Supreme Court ruled in favor of Entergy Corporation by a vote of 6-3, stating that it was reasonable for the Environmental Protection Agency (EPA) to consider costs when determining what is 'best'. This ruling allowed power companies more flexibility but also sparked criticism from environmentalists who believed it weakened protections for marine life.
In the dissenting opinion for Entergy Corporation v. Riverkeeper, Inc., Justice John Paul Stevens argued that the Clean Water Act does not permit cost-benefit analysis in determining Best Technology Available (BTA) to minimize adverse environmental impact. He contended that Congress intended BTA standards to be technology-forcing, pushing beyond what is currently available if it would result in reasonable progress toward eliminating discharge of pollutants. The majority's interpretation, he argued, could allow facilities to avoid implementing superior technologies simply because they are more expensive than less effective alternatives. Furthermore, he criticized the Environmental Protection Agency’s decision-making process as opaque and inconsistent with its past practices and policies regarding cooling water intake structures.
