In the wake of the recent U.S. Supreme Court ruling related to cooling water intake practices at large power plants, many utilities are relieved to be off the hook as far as implementing expensive control upgrades to protect fish and other aquatic organisms.
Impacts of Cooling Water Intake Systems
Cooling water intake structures divert billions of gallons of water into coolant systems for power plants. These systems can injure or kill billions of aquatic organisms, resulting in severe environmental impacts. Several years ago Congress sought to remedy this problem through Section 316(b) of the Clean Water Act (CWA). The statute requires that "cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." The resulting rules applied to approximately 550 power plants that account for about 53% of the nation’s electric power generating capacity.
In enforcing the statute, the Environmental Protection Agency (EPA) turned to a cost-benefit analysis. If the cost of a particular technology was unjustified by a corresponding environmental benefit, the technology was not required. Environmental groups reacted by suing the EPA to require the agency to employ a cost-only analysis. Such analysis requires the best technology a facility can afford, even if the environmental benefit derived is minimal.
In response, industry representatives argued against the cost-only analysis because they felt that affected power plants would be forced to apply expensive upgrades that had few environmental benefits over cheaper alternatives.
Balancing Costs and Environmental Benefits
On April 1, the Supreme Court ruled on the case Entergy Corp. v. EPA, which was consolidated with PSEG Fossil LLC v. Riverkeeper, Inc. and Utility Water Act Group v. Riverkeeper, Inc. The court upheld the EPA’s decision not to mandate closed-cycle cooling systems for cooling water intake because the cost of such systems would be prohibitively expensive and because other technologies could approach the performance level of closed-cycle operations.
The agency’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.
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