June 1, 2009

Looking Downstream After the Cooling Water Case

Angela Neville, JD

Moving Forward

It is important to remember that the recent ruling is based on interpreting an existing law, and that the existing law is open to amendment if Congress chooses to take action. Additionally, the case’s long-term impact may depend on whether the Obama administration wants to use cost-benefit calculations when the result would potentially lessen environmental protection.

In the coming months, the EPA will be reworking the rules governing cooling system upgrades. It remains to be seen how the agency’s new administrator, Lisa Jackson, an Obama appointee, will deal with the Bush-era EPA regulations that were the subject of the recent Supreme Court case.

"We are looking forward to working with EPA’s new administrator, whom we are confident will agree that the Bush EPA regulations failed to satisfy the CWA’s mandate that the adverse environmental impacts of cooling water intake structures be minimized," said Alex Matthiessen, president of the Hudson Riverkeeper group.

The U.S. electric generation industry needs a sensible section 316(b) policy that balances economic needs with protecting our natural resources. The Supreme Court’s decision validates the EPA’s authority to consider both costs borne by power plants to comply with 316(b) permits and the economic benefits of environmental protection. The downstream effect of this ruling: Utilities have a mandate to find and use available, affordable technologies that prevent unnecessary fish kills and damage to the environment.

--Angela Neville, JD is POWER's senior editor