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Wednesday, December 03, 2008

Environment - More on "High Court Case Tests Power Plants' Water Rules"

The Washington Post today has an editorial on the power plant intake cases argued yesterday before the Supreme Court. The editorial concludes:

A plain reading of the intake provision strongly suggests that Congress intended the agency, first and foremost, to identify the best technology -- not the best technology for the money.

Does this mean the agency can never consider costs? No -- and the approach outlined by the 2nd Circuit judges allows for that. After identifying the best technology, the agency may allow power plants to use less expensive means that achieve similar results. Individual plants may seek a variance if even the cheaper method proves too burdensome.

The approach outlined by the appeals court is reasonable and provides the least convoluted reading of the statute. If the industry does not like this result, it should go to Congress and ask that the law be rewritten.

An article by Adam Liptak of the NYTimes today ends with the water intake case:
In a second argument Tuesday, the court considered whether the Environmental Protection Agency may use cost-benefit analysis to regulate cooling structures that draw water from rivers and lakes to absorb heat generated by power plants and manufacturing facilities. The process kills aquatic organisms.

The argument in the case, Entergy Corporation v. Riverkeeper, No. 07-588, mostly concerned the meaning of a phrase in the Clean Water Act that requires the structures to “reflect the best technology available for minimizing adverse environmental impact.”

Richard J. Lazarus, representing the environmental groups that brought the case, said the agency may consider whether companies can bear the cost of less harmful technologies but may not balance cost against environmental harm.

Chief Justice John G. Roberts Jr. cautioned that the test Mr. Lazarus suggested might not result in much protection these days.

“Maybe the industry could have borne these costs two years ago, but they probably can’t today,” the chief justice said. “Nobody has money in the bank today.”

Posted by Marcia Oddi on December 3, 2008 10:19 AM
Posted to Environment