Justices Back Power Plants in Cost-Analysis Ruling

(CN) - In a defeat for environmentalists, the U.S. Supreme Court ruled 6-3 Wednesday that the Environmental Protection Agency can compare costs with benefits in determining what kind of technology should be used to protect aquatic organisms from getting squashed or sucked up by power plants' water-cooling systems.

Riverkeeper and other environmental organizations challenged 2004 regulations allowing the consideration of costs in deciding what technology to use in power plant cooling systems, which use water to the dissipate the heat created by the generation of electricity. The cooling systems, through suction and crushing, kill an estimated 3.4 billion aquatic organisms every year and constitute 39 percent of all freshwater use nationwide.

The high court's majority opinion reversed the 2nd Circuit's 2007 decision striking down the regulations as illegally considering costs.

Justice Scalia, joined by Justices Roberts, Kennedy, Thomas and Alito, noted that the Clean Water Act doesn't explicitly reject the notion of a cost-benefit analysis. The majority also referred to the EPA's nearly 30 years of case-by-case implementation, and Riverkeeper's statement that industry should not "spend billions to save one more fish or plankton," in backing up its decision.

Legal interpretations centered on the Clean Water Act's text requiring the "best technology available for minimizing adverse environmental impacts." While the 2nd Circuit read this as the greatest reduction of harm at a cost reasonable to industry, the Supreme Court concluded that "best" should be interpreted as "most efficient." Environmental groups focused on the word "minimizing," arguing for the smallest amount of harm.

Justice Breyer, in agreeing with the majority, wrote that the Act's language was deliberately nuanced so as to balance quantitative and qualitative considerations. Breyer added an additional, partially dissenting requirement for the EPA to explain its switch from "wholly proportionate" to a "significantly greater than" relationship between costs and benefits.

Justice Stevens delivered a dissenting opinion, joined by Justices Souter and Ginsburg. They agreed with the environmentalist focus on "minimizing" harm to aquatic organisms, pointing out the pitfalls in a quantitative assessment in that the EPA assigned "zero value" to more than 98 percent of aquatic life because it is not commercially or recreationally harvested.

Silence on the issue of cost-benefit analysis does not imply that it should be the dominant standard, Stevens argued. Differing technological standards were merely intended to ease the industry's transition to new technology in the long run, according to the dissent.

"[T]he structure and legislative history of the CWA demonstrate that Congress viewed cost-benefit analysis with special skepticism and controlled its use accordingly," Stevens wrote.

The EPA suspended the Phase II regulations pending further rulemaking. The Supreme Court remanded the case to the 2nd Circuit.

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