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Under the federal Clean Water Act (CWA), cooling water intake structures at power plants and other industrial facilities must be regulated in a manner nearly identical to pollutant discharges. Under CWA section 316(b), cooling water intakes require a National Pollutant Elimination System (NPDES) permit, and the U.S. EPA must adopt nationally uniform technology-based standards for state permit writers to include into these permits. These standards must require the best technology available (BTA) to minimize environmental impacts from cooling water intake structures.
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, the Environmental Protection Agency (EPA) established national regulations for existing power plants as required by the CWA. (Regulations are necessary to specify how BTA 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 EPA should determine whether the cost of the technology 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 Second Circuit’s decision. In April 2008, The U.S. Supreme Court agreed to grant the petition with regard to a single issue: “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 review the other topics decided by the Second Circuit in Riverkeeper’s favor.
On December 2, 2008, for the first time in Riverkeeper’s 40-year history, the United States Supreme Court heard our case that Hudson River power plants must use the best technology available to prevent their cooling intakes from killing massive numbers of fish, larvae and eggs. The case, Entergy Corp. v. Riverkeeper, Inc., 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.
On April 1, 2009, the U.S. Supreme Court overturned the decision of the lower court, ruling 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.