News > News > Stop Polluters > Power Plant Cases > 11-24-08 Press release: Riverkeeper Will Argue Clean Water Act Case Before U.S. Supreme Court

11-24-08 Press release: Riverkeeper Will Argue Clean Water Act Case Before U.S. Supreme Court

For Immediate Release: November 24, 2008
Contact: Renee Cho, Riverkeeper
914-478-4501 x 239
[email protected]

Ruling will address EPA’s use of cost-benefit analysis to determine power plant upgrades

(Washington, D.C.) On December 2, 2008, Entergy Corp. v. Riverkeeper, Inc. will be argued in the United States Supreme Court. The case will determine whether or not the Environmental Protection Agency (EPA) is authorized to compare costs with benefits in determining the “best technology available” (BTA) for the cooling water intake structures of existing power plants. Richard Lazarus, Professor of Law and Faculty Director of the Supreme Court Institute at the Georgetown University Law Center, will argue the case on behalf of Riverkeeper.

Press Call In: On Tuesday, November 25 at 12 noon, Riverkeeper will hold a press call-in to brief reporters on the background of this case. Riverkeeper’s senior attorney on power plants, Victor Tafur; lead attorney for the Indian Point relicensing case, Phillip Musegaas; and attorney Reed Super will be available to answer questions. Call in number: 1-877-358-8255 ID number: 800 5633.

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 will not review the other topics decided by the Second Circuit in Riverkeeper’s favor.

Every day, power plants in the United States withdraw over 214 billion gallons from U.S. water bodies to cool their facilities, and kill billions of fish and aquatic creatures in the process. This is mostly due to the use of antiquated cooling systems, known as “once-through cooling,” which are often employed by older power plants. In contrast, closed-cycle cooling systems, which the EPA considers BTA for new plants, recirculate most of the water after dispersing heat in a cooling tower, reducing the amount of water withdrawn and the number of fish killed by over 95 percent.

“The once-through cooling intakes of Hudson River power plants, which withdraw 5 billion gallons of water each day, have had a devastating effect on the river’s ecosystem. The Clean Water Act clearly mandates the use of ‘best technology available’ without regard to cost-benefit comparisons and was intended to address precisely these types of impacts,” said Alex Matthiessen, Hudson Riverkeeper and President. “With this case, the Supreme Court has the opportunity to weigh in on this important environmental issue, as we seek to end the era of illegal fish kills once and for all. We have the law on our side and are confident justice will prevail.”

“As the 30 million Americans who go fishing and the scientists who monitor our fish populations every year know, billions of fish are being killed by outdated power plant cooling intakes. This destruction has been going on for decades and must be stopped,” said Nancy Stoner, Co-director of the Water Program, Natural Resources Defense Council, part of the environmental coalition.

“The billions of fish killed needlessly every year by power plant cooling water intakes is another in a long list of compelling reasons why this country must make a fundamental shift in our approach to power generation and our overall energy policy,” stated Scott Edwards, Legal Director of Waterkeeper Alliance, another member of the environmental coalition “It’s only when environmentally harmful industries are forced to cover the costs of the damage they do to our planet that we’ll be able to move on to more sustainable, cleaner, and less damaging technologies.”


History of the Battle for the Best Technology Available
There are four existing power plants on the Hudson River that continue to rely on once-through cooling, a 1950s cooling technology. In these antiquated cooling systems, water is drawn from the Hudson River, absorbs heat, and is then discharged back into the river at an elevated temperature. This technology requires billions of gallons of river water per day, and needlessly kills billions of fish that are impinged on the plants’ intake screens or entrained when drawn through the cooling systems.

Natural Resources Defense Council (NRDC), Scenic Hudson and Riverkeeper’s battle with these four power plants (Indian Point, Danskammer, Roseton and Bowline) traces back to the historic Storm King Mountain controversy in the 1960s and the settlement that became known as the Hudson River Settlement Agreement (HRSA). Under the 1980 HRSA, Consolidated Edison Company of New York agreed to abandon its Storm King project in exchange for the environmentalists’ agreement not to immediately force the utilities to replace their once-through cooling systems with closed-cycle cooling which would eliminate 95% of the fish kills.

Under Section 316(b) of the federal Clean Water Act (CWA) enacted in 1972, cooling water intake structures require a National Pollutant Elimination System (NPDES) permit with standards requiring the best technology available (BTA) to minimize environmental impacts from cooling water intake structures. The U.S. Environmental Protection Agency (EPA) issues these permits, but can delegate the authority to issue the permits to some states, including New York State. In New York, the State Pollutant Discharge Elimination System (SPDES) permits issued by New York’s Department of Conservation (DEC) for three plants covered under the HRSA (Indian Point, Roseton, and Bowline) expired in 1992. Once a permit renewal application is filed, the expired permit is administratively extended until a new permit is issued. The permits for these HRSA plants, issued in 1987, have thus been “rubber stamped” since their expiration in 1992, allowing the plants to continue using once-through cooling and slaughter massive quantities of Hudson River fish.

In 1993, Riverkeeper led a coalition of environmental groups in suing the EPA to obtain national regulations that would spell out how BTA for power plant intakes should be implemented as required by the CWA. The EPA began working on them in 1995. In 2000, after years of litigation and negotiation, the U.S. District Court split the detailed regulations into three separate phases: Phase I for new facilities, Phase II for existing large power plants, and Phase III for existing small power plants and other facilities.

Phase I– In December 2001, EPA issued Phase I regulations for new facilities. Phase I mandated closed-cycle cooling as the best technology available. Because these Phase I regulations also contained loopholes that would jeopardize aquatic resources, Riverkeeper again led a coalition of environmental groups in filing a legal challenge against the EPA in January 2002. In February 2004, the U.S. Court of Appeals for the Second Circuit in New York City ruled in favor of Riverkeeper, finding that the EPA had exceeded its authority by allowing industrial facilities to attempt after-the-fact restoration of aquatic resources instead of installing technology to prevent fish kills in the first place. The court thus upheld EPA’s regulation mandating closed-cycle cooling as the national minimum technology for new power plants and factories.

Phase II – In April 2002, EPA proposed its Phase II regulations for existing power plants. These regulations set weak standards and allowed power plants to seek further variances. Although Riverkeeper mounted a major advocacy campaign in 2002 and 2003 to improve these regulations before they became final, EPA signed the final Phase II rule on February 16, 2004, largely ignoring comments from the environmental community as well as the Second Circuit\’s decision in the Phase I litigation. On July 26, 2004, Riverkeeper led a national coalition which includes NRDC, Waterkeeper Alliance and Scenic Hudson, in a challenge to the Phase II rule, filing new litigation in the U.S. Court of Appeals for the Second Circuit, which had earlier determined that EPA had exceeded its authority in Phase I. In January 2007, the Second Circuit ruled in favor of Riverkeeper. The court held that the Phase II regulations for existing power plants were inconsistent with the mandates of Section 316(b) of the CWA. As in the Phase I ruling, the court found that the EPA had exceeded its authority by allowing restoration of damaged natural resources as BTA. The court also struck down EPA’s improper consideration of a cost-benefit analysis to determine BTA. Further, the court rejected: two of EPA’s variances, one based on comparison of the companies’ actual costs to those costs considered by EPA, and another based on cost-benefit analysis the court determined was improper; its use of wide “performance standard” ranges that allowed facilities to aim for the bottom of the range rather than the top; its definition of “existing facility;” and other aspects of the rule.

The EPA and several energy companies, including Entergy, owner of the Indian Point nuclear power plant, petitioned the court to hear its case challenging this decision, and in April 2008, the U.S. Supreme Court granted the petition with regard to one issue: whether or not the EPA can consider cost-benefit analyses in determining BTA for power plant intakes. Notably, while the EPA first opposed a Supreme Court review of the appeals by the energy companies, it has now aligned with them on the issue before the court. New York State, Rhode Island, Connecticut, New Jersey, Massachusetts and Delaware are aligned with the Riverkeeper coalition, as they were in the lower court.

Phase III – In June 2006, the EPA decided not to promulgate regulations for existing Phase III facilities because costs would be disproportionate to the monetary value of the environmental benefits. Riverkeeper’s coalition again filed suit to have the court set aside EPA’s decision and require EPA to issue regulations for Phase III facilities. The case is pending in the Fifth Circuit Court of New Orleans.


What will the Supreme Court decision determine?
The Supreme Court will determine if Congress, in enacting Clean Water Act section 316(b) in 1972, intended EPA to reject technology that is available and is the best for minimizing adverse environmental impacts on the basis of a cost-benefit analysis. If the high court agrees with the lower court that Congress did not allow EPA to compare costs to benefits in determining the “best technology available,” then EPA will be prohibited from doing so. If it reverses the lower court, then EPA will not be required to rely on cost-benefit, but will merely be allowed to do so if it chooses, subject to it not acting arbitrarily in how it compares costs to benefits.

National and New York implications of the Supreme Court decision
The Supreme Court decision will have an important effect on many ongoing and future proceedings regarding existing power plants, mainly the hundreds of fossil fuel and nuclear facilities across the country that have cooling water intakes. The EPA will be required to draft a new rule based on the Supreme Court decision, stipulating how BTA will be applied to cooling water intakes. Many ongoing proceedings will not wait for this new rule, however, and will be decided in the next 1-2 years in accordance with the Supreme Court’s ruling and the aspects of the Second Circuit’s ruling that have not been appealed and are now final, including Riverkeeper’s challenges to the draft permits for Indian Point, Danskammer, Roseton and Bowline.

Indian Point
The case against Indian Point regarding its SPDES permit is distinct from Riverkeeper’s intervention to oppose Indian Point’s application for a 20-year license extension from the Nuclear Regulatory Commission (NRC). The DEC and NRC proceedings regarding Indian Point run on parallel tracks.

In August, 2008, the New York State Department of Environmental Conservation (DEC), which issues SPDES permits, affirmed that the Indian Point nuclear power plant’s cooling water intake system causes adverse environmental impacts on Hudson River fish, and ruled on the issues to be considered in the SPDES proceeding. Although Entergy has filed a lawsuit challenging DEC’s finding of “adverse” environmental impact, the DEC is moving forward with a trial-type hearing to determine whether closed-cycle cooling must be installed at Indian Point. Hearings on the draft SPDES permit, which would mandate closed cycle cooling, are tentatively scheduled for spring 2010.

This DEC finding supports Riverkeeper’s position in its Indian Point relicensing case in which Riverkeeper is challenging Entergy’s assertion that the once-through cooling system does not harm fish in the river and should therefore not be taken into consideration as part of the NRC’s environmental review in the relicensing proceeding.

Riverkeeper is an independent member-supported environmental organization. Riverkeeper’s mission is to protect the Hudson River, and its tributaries, and the New York City drinking water supply. Riverkeeper is a founding member of the Waterkeeper Alliance (, an international organization that works with over 180 Waterkeepers to protect waterways around the globe. For more information, please visit

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